Florida Injury Attorney Blawg

Florida's Wrongful Death Act, located at Sections 768.16-768.26 of the Florida Statutes, concentrates on loss suffered by survivors and creates a separate entitlement to damages for each survivor. However, the survivors cannot bring separate legal actions. Rather, the personal representative is the only party with standing to bring a wrongful death suit on behalf of the estate and the survivors. See § 768.20, Fla. Stat. Under the legal procedure set out in the wrongful death statute, all survivors and claimants are required to participate in a single legal action to be filed by the estate on behalf of all the survivors. Upon trial, damages are to be apportioned to each survivor in the verdict form." Wiggins v. Estate of April Brown Wright, 850 So.2d 444 (Fla., 2003).

The personal representative selects the attorney who will pursue the recovery on behalf of the estate and the survivors. The typical contingent fee retainer agreement in these cases provides for attorneys' fees from 33-1/3% (case settled pre-suit) to 40% (post-suit, post-Answer [to lawsuit]) of the combined amount recoved by the estate and the survivors.

In many instances the survivors entitled to compensation in a wrongful death action may be in agreement both as to prosecuting a wrongful death claim, and in the distribution of any recovery. When this is the case, this procedure will work well, especially when all of the survivors have a commonality of interest and a single attorney can represent those interests. This may often be the case, for example, when a parent-spouse is killed and the surviving spouse and children are represented by the same attorney.

Continue reading "Attorneys' Fees in Florida Wrongful Death Cases" »

Florida Statute 767.04 imposes strict liability on dog owners for injuries suffered in public places and in or on private property when the victim is lawfully there. The former viciousness, in other words, the dog's history, is irrelevant, hence the strict liability aspect of the statute.

However, the victim's own negligence (e.g, taunting the dog) can be considered to reduce or avoid a dog owner's liability.

Additionally, except as to children under the age of 6, "or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words '"Bad Dog,"' the owner can avoid liability.

Continue reading "Florida's Dog Bite Law" »

Probably every motor vehicle insurance policy now issued in Florida will contain what is known as the household member exclusion for bodily injury insurance benefits. (Bodily injury insurance is the type of coverage that compensates individuals injured in motor vehicle accidents caused by negligence.) The exclusion will apply to "any member of the family of an insured residing in the same household as the insured." (Typical insurance policy language.) To the surprise of many, including some lawyers, the household exclusion is enforceable in Florida.

A simple example: A father and his minor son are involved in an accident caused by the father's negligent operation of his vehicle. The son is severly injured. The insurance policy on the vehicle contains $100,000 of bodily injury coverage. The policy also contains the family household exclusion.

If the vehicle involved in the accident was the only insured vehicle owned by the father or any other family member, the young son, who resides with his father, is out of luck. Period. This is so even if the father maintained underinsured motorist coverage under the policy. Even though the son is technically uninsured due to the household exclusion, the Florida Supreme Court, in Reid v. State Farm Fire & Cas. Co., 352 So.2d 1172 (Fla. 1977), has decided that a vehicle cannot be both insured and uninsured on the same policy. Because the vehicle in our simple scenario did have bodily injury coverage, and thus, was not uninsured, the son could not avail himself of the uninsured motorist coverage under the same policy.

However, if any other resident family member, including the father, owned another vehicle and maintained uninsured motorist coverage for that vehicle, even through the same insurance company, the minor son would be entitled to the coverage.

CONCLUSION: If a family owns more than one vehicle, protect against the family household exclusion by maintaining uninsured motorist coverage on each vehicle. (For that matter, I recommend uninsured/underinsured coverage on all motor vehicle policies, even if only one vehicle is owned in the household. Although the household exclusion would not be overcome, uninsured/underinsured insurance is important in other ways.)

Continue reading "Florida Vehicle Insurance Law - Household Member Exclusion" »

In Patricia Farley v. Chase Bank, U.S.A, N.A., No. 4D09-651 (opinion published on June 9, 2010) (not final until disposition of timely filed motion for rehearing), the District Court of Appeal of the State of Florida, Fourth District, sent a cautionary message to those who fail to object within a reasonable period of time to incorrect account statements.

In every civil legal case, the initial burden of proof is upon the Plaintiff to present a prima facie case. In a lawsuit brought to collect a debt, this means that the Plaintiff/Creditor must come forward initially with probative evidence of the correct amount of the debt and the liability of the debtor. Without doing so, the Plaintiff/Creditor's case will fail.

In the Farley case, before the lawsuit was filed Chase Bank had rendered an account statement to Ms. Farley. When Ms. Farley failed to pay or challenge the correctness of the statement, she was sued by the bank.

At the trial court level, Chase Bank came forward with evidence that Ms. Farley had received the account statement and failed to challenge its correctness. Ms. Farley insisted that Chase Bank must prove its case by providing an itemized copy of the account sued upon. The trial court disagreed with Ms. Farley, concluding instead that the bank had made a prima facie case by presenting evidence that Ms. Farley had failed to challenge the correctness of the pre-suit account statement. Ms. Farley's appeal of the trial court's decision was rejected by the 4th DCA.

Continue reading "Florida Debt Collection Law: Account Stated - Disagree Now or Pay Later" »

Florida employees injured at work may be entitled to retraining benefits. The procedure is outlined in Section 440.491 of the Florida Statutes.

Upon referral of an injured employee by the carrier (defined in section (1)(a) of 440.491), or upon the request of an injured employee, the Florida Department of Education (department) shall conduct a training and education screening to determine whether it should refer the employee for a vocational evaulation and, if appropriate, approve training and education or other vocational services for the employee. The department will not approve training and education unless it determines that the reemployment plan is likely to result in a return to suitable gainful employment.

If the department approves training and education, the money to pay for the services will come from the Workers' Compensation Administration Trust Fund, established by s. 440.50. The training and education can be provided through community colleges, approved career centers, and other vocational services. Under some circumstances, the department will pay for a temporary residence at or near the facility where the services are being provided.

Continue reading "Florida Workers' Compensation Retraining & Education Benefits" »

Permanent Total Disability (PTD) is the only periodic (bi-weekly) monetary payment available to injured workers after maximum medical improvement (MMI) is reached. The standard for qualifying for PTD benefits has changed numerous times over the years.

When I began handling workers' compensation cases, in 1987, to qualify for PTD benefits an injured worker had to have a listed injury such as total blindness, amputation of an arm, or a severe brain or closed head injury, or establish that he or she was unable to perform light duty work uninterruptedly. (Light duty is commonly recognized as: (1) no lifting > 20 lbs.; (2) frequent (1/3 to 2/3 of the time) lifting or carrying objects up to 10 lbs.; (3) standing 6 out of 8 hours per day; and (4) stand and use arms and hands.)

This standard applied until 1994, when the Florida Legislature, in a Special Session convened by Governor Lawton Chiles, replaced the light duty standard with a formula tied into the Social Security Disability (SSD) standard. The Legislature believed that this formula would make it more difficult for injured workers to qualify for workers' compensation PTD benefits. In practice, however, just as many if not more injured workers qualified for PTD under this standard.

This did not sit well with Governor Jeb Bush and his corporate constituents, so in 2002, the Republican-controlled Florida Legislature changed the standard again. The SSD formula was replaced with the requirement that injured workers must show they are unable to engage in at least part-time sedentary employment within a 50-mile radius of the employee's residence. (Sedentary duty is commonly recognized as: (1) no lifting > 10 lbs. at a time; (2) occasional (1/3 of time) lifting or carrying small articles like docket files, ledgers and small tools; (3) sit 6 hours during 8 hour day and stand and/or walk the remaining 2 hours; and (4) good manual dexterity in both hands.) When coupled with the Legislature's companion 2002 changes curtailing the amount of attorneys' fees an injured workers lawyer was allowed to receive, the change dramatically reduced the number of individuals who qualified for PTD benefits.

The standard proved so onerous, that the law was revisited a few years later. The outcome of the Legislature's decision to reconsider resulted in our current law, which provides as follows: "[I]n order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee's residence, due to his or her physical limitation." Section 440.15 Florida Statutes (2009).

Continue reading "Workers' Compensation Permanent Total Disability (PTD) - The Shifting Standard" »

Individuals and companies sued in Florida on debts (real & fabricated) and delinquent mortgages are not without legal defenses or affirmative relief. Here is a checklist of some of the available legal principles:

• Estoppel - Equitable, Promissory and Collateral.


• The action is barred by the statute of limitations applicable to such actions.


• This action is barred by the statute of frauds.


• Unclean Hands.


• Payment.


• Fraud.


• Right of Rescission.


• The note is unenforceable under Florida law.


• The Plaintiff did notify the Defendant of any assignment within thirty (30) days.


• The Plaintiff is not the real party in interest herein and has no standing to make this claim against Defendant.


• The Defendant herein did not contract with or agree to incur any debt to Plaintiff; therefore, Plaintiff does not have a legal claim against Defendant.


• The Plaintiff did not purchase or otherwise come into legal possession of any account between the alleged creditor and Defendant.


• Failure of Contractual condition precedent: no notice of default.


• No HUD counseling notice.


• Illegal charges added to balance.


• Failure of good faith and fair dealing: unfair and unacceptable loan servicing.


• Plaintiff has failed to provide servicing of this residential mortgage loan in accordance with the controlling servicing requirements prior to filing this foreclosure action.


• Defendant has a right to receive foreclosure prevention loan servicing from the Plaintiff before the commencement or initiation of this foreclosure action.


• Defendant is in doubt regarding his rights and status as a borrower under the National Housing Act and also under the Pooling and Servicing or trust agreement that controls and applies to the subject mortgage. Defendant is now subject to this foreclosure action by reason of the above described illegal acts and omissions of the Plaintiff.


• Counter-Plaintiff is being denied and deprived by Counter-Defendant of their right to access the required troubled mortgage loan servicing imposed on the plaintiff and applicable to the subject mortgage loan by the National Housing Act and also under the Pooling and Servicing or trust Agreement that controls and applies to the subject mortgage. Counter-Plaintiff is being illegally subjected by the Counter-Defendant to this foreclosure action, being forced to defend the same and they are being charged illegal predatory court costs and related fees, and attorney fees. Counter-Plaintiff is having his/her credit slandered and negatively affected, all of which constitutes irreparable harm to them for the purpose of injunctive relief.


• As a proximate result of the Counter-Defendant's unlawful actions set forth herein, Counter-Plaintiff continues to suffer the irreparable harm described above for which monetary compensation is inadequate.


• Counter-Plaintiff has a right to access the foreclosure prevention servicing prescribed by the National Housing Act and under the Pooling and Servicing or trust Agreement that controls and applies to the subject which right is being denied to them by the Counter-Defendant. These wrongful and predatory acts committed by the Counter-Defendant, and/or through the Counter-Defendant's agents, employees or predecessor in interest were intentional and deceptive.


• Counter-Plaintiff sues for violation of his rights under Sections 559.55-559.785 Florida Statutes, the Florida Consumer Protections Act.

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.