February 2010 Archives

February 28, 2010

Retaliatory Discharge/Termination Law and Workers' Compensation - Florida

February 27, 2011 blog on the issue: Survey of Florida's Wrongful Termination Workers' Compensation Law

Although the rights of injured workers under Florida's Workers' Compensation statutes have consistently been eroded away under Republican rule, one protection has remained constant over the years. Per Section 440.205 Florida Statutes (2009):

Coercion of employees.--No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.

The protection afforded injured workers under Section 440.205 is broad, prohibiting not only the firing of an employee, but also threats, coercion, and intimidation. Chase v. Walgreen Co., 750 So.2d 93 (Fla. 5th DCA 1999). Moreover, a "valid claim" means one that is meritorious, not just compensable. Smailbein v. Volusia County Sch. Bd., 801 So.2d (Fla. 5th DCA 2001).

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February 27, 2010

Pharmacy Malpractice/Errors in Florida

Pharmaceutical drugs can work positive wonders. Unfortunately, if abused or misused, they can be terribly harmful. In today's fast-paced world, simple errors involving prescription medicine are not uncommon. From a scribbled doctor's prescription, to failing to learn of allergies or the contraindications of mixing medicines, to dispensing medication to the wrong patient, mistakes happen. The numbers are staggering.

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February 25, 2010

Deposition Rules 101 for Non-Lawyers

Notes.jpgParties and witnesses involved in legal proceedings should follow these basic rules when being deposed:

  1. Listen carefully and allow the attorney to complete each question before responding;
  2. If you do not understand a question, ask the attorney to repeat the question or rephrase it;
  3. Answer only the question asked and do so in simple and succint terms. For example, if the question calls for a simple yes or no response, answer accordingly;
  4. If you know the answer to a question, do not be cute and answer, 'I do not remember' or something along those lines. The correct answer may be important and to answer that you don't remember, makes it more difficult to give the correct testimony at a later date;
  5. If an explanation is required for the response to be accurate, give it, but keep it short and simple and on point;
  6. Do not be argumentative or defensive in your responses; and
  7. Tell the truth.

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February 24, 2010

Premises Liability Law in Florida - The "Open and Obvious" Doctrine

People may be surprised to learn that accidents that occur on property from hazards which are open and obvious, are not absolutely barred by law from being the fault of the landowner. The primary legal significance of hazards being open and obvious is that landowners are under no duty to warn of the conditions, but this rule does not completely foreclose victims from legal remedies. In contrast, when perils are concealed and known or should be known to landowners, and unknown to invitees (persons rightfully on property) even with the exercise of reasonable care, landlords also have a duty to warn invitees.

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February 23, 2010

The Truth About the McDonalds Coffee Spill Case - Fallacy Debunked

In a conscious effort to create a negative view of trial lawyers and civil lawsuits, Corporate America has for years distorted the truth about the famous McDonalds coffee spill case, the poster child for the frivolous lawsuits mantra. Sadly, the public has fallen for the propoganda hook, line and sinker.

Why, might you ask, would Corporate America wish to turn the public against trial lawyers and civil lawsuits? The answer is simple. Profits over people. By limiting the right of individuals to seek redress against big business, they become less accountable for their negligent conduct. Civil lawsuits make big business pay for its negligence. Limit civil lawsuits, limit accountability.

How, might you ask, does the propoganda limit accountability? The unknowing and gullible public presses its politicians to do something about the "lawsuit crisis." "Conservative" legislators, all too happy to take up the cause - although not without a price - you can be sure that the loudest political voices for curtailing civil lawsuits, receive the most money from big business - devise laws with the effect of making it ever more difficult to take on big business in our courts of law. Barring the courthouse doors, so to speak, from "We, the People." It has been happening for years, and it's not pretty. Frankly, it is frightening. Big business run amock.

Back to the McDonalds coffee spill case.

Background: In 1994, a New Mexico jury awarded a woman 2.9 million in a case arising out of hot coffee spilling onto her lap while sitting in a car driven by her grandson. The Plaintiff (the person who received the jury verdict) was a 79-year old retired sales clerk who had never before sued anyone. When she placed the coffee between her legs and removed the lid to add cream and sugar, the scalding hot coffee spilled out onto her lap, causing third-degree burns on her groin and thigh area. She was hospitalized for eight days and incurred medical expenses in excess of $11,000. She was left with permanent pain and scarring. The jury trial lasted 7 days.

The untold story:

  • The woman's request to have her medical bills paid was countered with an offer from McDonalds in the amount of $800
  • It takes less than 3 seconds to produce third-degree burns at 190 degrees, 12-15 seconds at 180 and 20 seconds at 160. McDonalds brewed its coffee at 195 to 205 degrees.
  • McDonalds own records revealed that in the previous 10 years, it had received more than 700 reports of burns from scalding coffee, and the company had spent more than $500,000 in settling these claims
The jury awarded damages of $200,000, reduced to $160,000 based on the plaintiff's 20% negligence for spilling the coffee, and punitive damages (for conduct held to be willful, malicious and reckless) in the amount of $2.7 million, later reduced by the trial judge to $480,000. Both sides appealed and later reached a confidential settlement. Interestingly, One day after the jury verdict, the coffee temperature at the restaurant in location was tested and had been reduced to 158 degrees.

Continue reading "The Truth About the McDonalds Coffee Spill Case - Fallacy Debunked" »

February 22, 2010

Florida Accident Injury Doctors - Treating Without Insurance

doctor.jpgIndividuals injured in Florida accidents through the negligence of others may be entitled to compensation for their injuries. To determine fair compensation value, the injuries must be documented and treated by qualified medical professionals. Unfortunately, not everyone has insurance or other means to pay for medical care. Thankfully, some medical providers will provide care to genuinely injured individuals on the expectation of receiving payment from the personal injury case recovery. Because of the uncertainty of achieving success in the personal injury case, it is a risk for the medical providers, who often invest substantial amounts of time and resources, to provide the care. Fortunately, the medical providers understand the risk and do not expect the patient to pay out-of-pocket when no recovery is made. Due to the risk, medical providers limit this service to trustworthy lawyers willing to provide an honest analysis of the eventual outcome of the underlying case.

Hats off to these professionals for providing this valuable service.

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Contact us toll free at 866-785-GALE or by email.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

February 21, 2010

Herniated Disc - Common Yet Serious Injury

In simple terms, the human spine consists of bones (vertebrae), the spinal cord, nerves, and intervertebral discs. The spinal cord is about 18 inches in length and extends from the base of the brain, surrounded by the vertebral bodies, down the middle of the back, to about the waist. The nerves branch out from the spinal cord to carry signals throughout the body.

Intervertebral discs, composed of a gel-like substance (nucleus pulposus) contained within an outer skin (anulus fibrosus), sit between the bony vertebrae. They act as shock absorbers between the vertebrae and allow the spine to be flexible. The spinal cord runs parallel to the intervertebral discs within the spinal column.

Healthy intervertebral discs pose no threat to the spinal cord and nerve roots. However, trauma associated with accidents (slip & fall; motor vehicle crashes) may cause the nucleus pulposus to bulge or herniate (rupture). A bulge is when the nucleus pulposus becomes distorted but remains contained within the anulus fibrosis. A herniation is when the nucleus pulposus breaks through the anulus fibrosis.

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February 18, 2010

Serious Injuries in "LOW IMPACT" Vehicle Crashes Not Uncommon

Florida personal injury lawyers face the difficult task of convincing insurance adjusters, opposing lawyers, judges and juries that occupants in vehicles suffering only minor property damage from crashes have sustained significant injuries. Common sense and logic seem to be working against Plaintiffs' lawyers - 'how can there be serious personal injuries without significant property damage?' The answer is that there is more to the dynamics of a crash than meets the eye.

Vehicle damage is just one factor of many in determining impact speed. Many parameters such as vehicle masses, impact angles, the pre-impact velocity of both vehicles, crush resistance, metallurgical fatigue, etc., effect how the bumpers behave during an impact. One example of the variability is that older vehicles generally have stronger bumpers and can absorb greater impacts while showing less damage than newer cars where style dominates over function.

This is a complex subject that will touched on in greater detail in later blogs.

February 14, 2010

Bad Faith Insurance Law Protects Floridians

Thanks to thoughtful and well-reasoned legislation and court decisions, Floridians can have a reasonable expectation that their own liability insurance companies will act in their best interests. That may soon be changing.

When handling claims, Insurance companies have a duty to act in the best interests of their insureds. This is especially so when insureds are at risk on claims in which the value of the claim (i.e., exposure) exceeds the limits of coverage under the policy of insurance. In those instances, insurance companies are required to do everything within reason to resolve claims within coverage limits. Failing to do so may expose insureds to judgments in excess of policy coverage limits. When this is the result of insurance company indifference or neglect, the carrier may be responsible for paying the excess judgment. This is known as bad faith law and it has been the driving force for more than 30 years in Florida behind insurance companies honoring their duty to handle claims in good faith.

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February 11, 2010

Verdict Against Archdiocese Thrown Out

archdiocese.jpgOn February 10, 2010, the 3rd District Court of Appeal in MIami reversed a jury verdict rendered against the Archdiocese of Miami and Archbishop Coleman F. Carroll High School arising out of a catastrophic car crash in 2001. One of the plaintiffs in the case, Gabriel Maynoldi, sustained severe brain damage and is a quadraplegic. Gabriel needs around-the-clock medical care.

The accident happened after Gabriel and his best friend, both 17, left an end-of-the-year school party held in a private home where alcohol was being served. More than 100 fellow students attended the party. Both boys were drunk when they drove off in a motor vehicle and crashed. The other young boy was killed in the crash.

The plaintiffs, including Gabriel's parents, argued that the Archdiocese and the high school should be held partly responsible for allegedly sanctioning and promoting the party. The jury agreed, and assessed damages against the Archdiocese totaling $12 million. The District Court disagreed, ruling that a school's obligation to supervise students ends when a student leaves the school's premises and is no longer involved in school-related activities.

The plaintiffs may seek a rehearing.
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Contact us toll free at 866-785-GALE or by email to learn your rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

February 10, 2010

Car Rental Companies Avoid Liability for Crashes

hertz.jpgUntil recently, every owner of a motor vehicle in Florida was responsible for damages caused by crashes involving the negligent operation of their/its vehicles by permissive users. The concept behind the legal principle is that motor vehicles are dangerous instrumentalities to be used with great care and caution, and that by holding the owner accountable careless vehicle lending/leasing practices will be minimized.

With one glaring exception, this law remains in effect in Florida today. The major exception applies to car rental companies.

In 2005, the United States Congress, at the urging of the Bush Administration, passed a legislative measure known as the Graves Amendment. The law preempts the laws of the individual states, including Florida, over the responsibility of car rental companies for accidents involving vehicles owned by them. Unlike Florida law, the federal law appears to have limited, if not altogether eliminated, the legal responsibility of rental companies for damages caused by their vehicles.

Proponents of the bill argue that the individual states should not be allowed to legislate the behavior of major rental car companies.

The law has been and continues to be challenged in courts around the country. The final decision will be made by the United States Supreme Court.

February 8, 2010

"Full Coverage" Motor Vehicle Accident Insurance in Florida

car-insurance-policy.jpgAlmost daily people tell us that they or the at-fault driver in an accident have "Full Coverage" vehicle insurance. The subject comes up while trying to determine if insurance is available to provide compensation for non-economic damages such as pain & suffering arising from personal injuries sustained in a motor vehicle crash. Most people believe that such coverage is available as part of the basic insurance coverage required by the state of florida to lawfully operate a vehicle in Florida. It isn't.

Florida law requires every owner of a vehicle registered in Florida to maintain nothing more than Personal Injury Protection ("PIP") and Property Damage Liability insurance. Many people are suprised to learn that neither of these coverages compensates anyone for pain & suffering damages. PIP covers 80% of medical expenses and/or 60% of wage losses up to a total of $10,000 subject to deductibles, while Property Damage Liability pays for damage to other vehicle caused by the at-fault pary. (The minimum level for this type of coverage is $10,000.)

When someone is injured in a Florida motor vehicle accident, only Bodily Injury Liability ("BI") and Uninsured/Underinsured Motorist ("UM/UIM") insurance will compensate the victim for his non-economic (pain & suffering) damages. Neither of these coverages is mandatory and to have either requires a premium payment over that required for the minimum mandatory PIP and PD Liability insurance.

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February 7, 2010

Unfair Debt Collectors Beware

Hardworking individuals today are finding it increasingly difficult to meet their expenses. Mortgage foreclosures, credit card defaults, and vehicle repossessions are reaching record proportions. With the rise in defaults come the inevitable collection efforts by creditors and debt collection agencies. In some cases, the collection efforts cause more pain than the default itself. Fortunately for Florida residents, there is a body of law designed to combat overzealous creditors and bill collectors. Unfortunately, the law, located in Chapter 559 of the Florida Statutes and referred to as the Florida Consumer Collection Practices Act, is little-known and greatly underutilized.

Collection efforts are allowed and take many forms, from lawsuits, dunning notices, phone calls, to reporting the debt to credit reporting agencies. Thankfully, the Florida Consumer Collection Practices Act prohibits some activities and provides a remedy for breaches. Examples of proscribed activities include using or threatening violence; communicating or threatening to communicate with a debtor's employer prior to obtaining final judgment; communicating with such frequency as to constitute harassment; using profane or vulgar language in a communication; simulating in any manner a law enforcement officer or a representative of any governmental agency; and communicating with the debtor between the hours of 9 p.m. and 8 a.m. It is also unlawful to claim, attempt, or threaten to enforce a debt when the collector knows that the debt is not legitimate or assert the existence of some other legal right when such collector knows that the right does not exist. This particular violation is quite common and typically arises in the context of a debt that once existed but was resolved.

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February 5, 2010

Florida Arbitration Panel Awards 11.8M for Medical Malpractice

wheelchair.jpgA 71 year old Florida man and his wife of nearly 50 years were recently awarded a total of 11.8 million dollars in a unanimous ruling by a three-person arbitration panel in a civil case involving allegations of medical malpractice against Dr. Alfred O. Bonati and his Gulf Coast Orthopedic Center. The panel determined that William Clark was harmed by back surgery performed below the prevailing professional standard. Mr. Clark's permanent injuries have left him wheelchair bound.

The award allocated damages for past and future medical and related expenses; past and future pain and suffering; and past and future loss of consortium. In addition, the arbitration panel, consisting of one person selected by the plaintiff, one picked by the defendants, and third a neutral former judge, also left open the chance of an award of punitive damages.

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