November 2010 Archives

November 24, 2010

Attorney/Lawyer Assistance With Florida's Crime Victim Compensation Program

Crime victims may be eligible for up to $25,000 ($50,000 for catastrophic injury) in compensation benefits from the State of Florida's Victim Compensation Program. (Qualifying crimes include assault, DUI and hit-and-run accidents, rape, and murder.) Unfortunately, the beaurocratic maze that must be navigated to receive benefits, especially during times of heightened stress, often proves overly daunting for victims. Law firms versed in handling these matters can assist victims in obtaining compensation.

The benefits obtainable through the Victim Compensation Program resemble those available to individuals involved in personal injury cases. Therefore, an experienced personal injury lawyer will have a good understanding of how to meet the requirements of the Victim Compensation Program. In some instances, the lawyer can pursue a personal injury claim and a claim for Victim Compensation Program benefits simultaneously.

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November 23, 2010

Profits Over People - The Willful Ignorance of Florida Car Rental Companies

It is unlawful for any person whose driver's license has been suspended to operate a vehicle upon the streets and highways of Florida. Florida Statute 322.34. In addition, any vehicle owner who knowingly allows a person with a suspended license to operate his/her vehicle in Florida commits a misdemeanor of the second degree. 322.36. (Since Florida Statute 322.38, which addresses the minimum duty owed by rental agencies, uses the word "person" in reference to an owner who rents his/her vehicle, the use of the word "person" in 322.36 makes its provisions applicable to rental agencies.)

We are currently involved in litigation against Enterprise Leasing Company of Florida, LLC (Miami-Dade County case number 08-80070 CA 23), for catastrophic injuries caused by the renter of one of its vehicles in a highway roll-over accident. When Enterprise allowed the renter to drive its vehicle off its lot, his Florida license was under suspension for moving violations.

Enterprise's defense is that it did not know or have a duty to determine if the renter's license was suspended. Interestingly, an Enterprise representative testified in deposition that, had the company known [of the suspension], it would have been negligence on its part to entrust its vehicle to the renter. We have asserted that Enterprise had a duty to limit the risk to our client, which included making an effort to determine, at a minimum, the status of its renter's Florida license. In a Motion for Summary Judgment, Enterprise asked the court to decide the issue. The court denied Enterprise's motion, allowing us to proceed with our case.

Since 1999, Florida driver license status records have been searchable through the Internet by DL number or name/date-of-birth/sex, making status information available in a matter of seconds. Enterprise did not perform this simple and fast search in our case. Had it done so, it would have learned of the suspended license, which was registered in the database since 2006, some two years before our accident. (By the way, Enterprise's customer, who did not have a valid credit card, paid cash to rent the vehicle.)

Was this a case of willful ignorance to avoid the chance of turning away a paying customer?

For many years, numerous car rental companies had been using databases to screen driving records of potential renters. See articles #1 and #2. (It is estimated that 6-10% of potential renters are denied by the screening process. The reasons for the denials vary from suspended licenses to poor driving records.) However, among the major car rental companies, Enterprise was an exception to that policy.

Sadly, the pack may soon, if not already, be following Enterprise's lead.

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November 16, 2010

Letter to Editor (Miami Herald) Regarding Medical Malpractice Litigation (Florida)

The Readers' Forum section, The Miami Herald published a letter from a South Florida doctor containing various assertions about medical malpractice litigation. The letter angered my wife, who decided that a response was necessary. Here it is:

Dr. Jerome Reich's statement that "about 25-30 percent of the cost of our system is directly related to malpractice litigation, defensive medicine because of the threat of litigation and flagrantly ridiculous cases that some attorneys take on a contingency basis simply for "settlement"" is inflammatory and wrong.

Through years of misrepresentations, the insurance and medical industries have convinced the general public that every medical malpractice jury verdict favors the patient regardless of the merits of any particular case. The statistics tell a much different story. According to a 2001 study conducted by the Bureau of Justice Statistics, medical malpractice plaintiffs win only 27% of trial cases. There are many other studies with similar results. Interestingly, when this issue was brought up before the Florida legislature several years ago, the people making these inflammatory statements would not do so under oath.

A large focus of the conservative position on health care reform has been that frivolous lawsuits drive up health care costs and require doctors to practice "defensive medicine" that is costly and wasteful. However, the health economists and independent legal experts who study the issue do not believe that is true. They say that malpractice liability costs are a small fraction of the spiraling costs of the U.S. health care system, and that the medical errors that malpractice liability tries to prevent are themselves a huge cost both to the injured patients and to the health care system as a whole. Tom Baker, a professor at the University of Pennsylvania Law School and author of The Medical Malpractice Myth states "If you were to eliminate medical malpractice liability, even forgetting the negative consequences that would have for safety, accountability, and responsiveness, maybe we'd be talking about 1.5 percent of health care costs."

The bottom line to me is that medical malpractice lawyers provide a much needed service. Heaven forbid that you or a family member be the victim of medical malpractice and have no legal recourse. Without legal recourse, what incentives are there to make our medical system better?

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November 15, 2010

15-Passenger Vans Are Rolling Death Traps - Product Liability/Negligence

Fifteen-passenger vans, especially those manufactured before 2004, are, by design, inherently unstable and unsafe, making them prone to roll over during tire blowouts and quick maneuving at higher speeds. People are being severly injured and killed when the vans roll over. Sadly, federal regulators and auto safety experts have known for years that these vans are unfit to transport people, yet they continue to be manufactured.

These vans were originally designed to carry cargo, not people. Those designed before 2004 lack even the most basic safety improvements and NHTSA-required warnings and advisories. However, even the newer models are unstable.

Federal law prohibits the sale of 15-passenger vans for the school-related transport of high school age and younger students, yet they continue to be rented for family use by the major rental agencies.

More than 500,000 of these vehicles are in use in the United States.

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November 14, 2010

Florida Workers' Compensation Statute of Limitations

A statute of limitations is a provision that ends a person's right to claim benefits or sue for compensation and damages. A Florida workers' compensation claim or petition for benefits is forever barred unless it is filed within (1) two years of the date of injury, or (2) after the initial two years, within one year of the last payment of compensation or provision of medical treatment, care or attendance. Florida Statute Sections 440.19(1) & (2).

The two years from the date of injury element does not begin to run until the injured worker, as a reasonable person, knew or should have recognized the "nature, seriousness, and probable compensable character of his injury or disease." See Herb's Exxon v. Whatmough, 487 So. 2d 1169, 1172 (Fla. 1st DCA 1986) and 440.19(1). The practical application of this rule is that the statute of limitations (SOL) begins to run in most cases, but not all, from the date of the actual accident. Examples of when the SOL does not begin to run on the date of the accident include conditions of unknown cause, such as hepatitis and HIV infection (where the diagnosis comes well after the infecting mechanism, e.g., needle stick, occurred), a minor injury, e.g., tinge of back pain from lifting a box, that is diagnosed a few weeks later as a serious condition, and injuries resulting from repetitive trauma (see this blog). If the issue of knowledge goes to trial, a Judge of Workers' Compensation Claims will make the final determination based on the "reasonable man" standard (a standard frequently used in law to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining a particular issue).

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November 10, 2010

Florida Workers' Compensation Temporary Partial Disability (TPD) Benefits - The Claimant's Burden of Proof

Florida employees injured in the course and scope of their employment may be eligible for workers' compensation wage loss benefits. Florida's workers' compensation system offers three types of wage loss benefits - Temporary Partial Disability (TPD) (Florida Statute 440.15(4)), Temporary Total Disability (TTD) (440.15(2)), and Permanent Total Disability (PTD) (440.15(1)). Of the three types of benefits, only TPD and TTD are available during the recovery stage, or before maximum medical improvement (440.02(10)). Of the two, only TPD is payable while the injured employee is able to work. This blog will discuss what evidence injured workers must present to make a prima facie case to receive TPD.

Under 440.15(4)(a), TPD benefits are payable "if overall maximum medical improvement has not been reached and the medical conditions resulting from the accident create restrictions on the injured employee's ability to return to work." For years, the second clause of this simple sentence has resulted in extensive litigation. With the recent decision in Wyeth/Pharma Field Sales and Gallagher Bassett v. Vivian Toscano, 40 So.3d 795 (Fla. 1st DCA 2010), the heavy litigation may be at an end.

Sales concerns a claim for TPD benefits. While the Claimant was recovering from injuries sustained on the job, she was restricted by her doctor from performing the functions of her regular job. Because the employer failed to make light duty work available, the Claimant remained out of work, thus earning no wages. Also during this period of time, the employer layed off 1,200 workers, including the Claimant. Although the employer accepted the compensability of Claimant's accident and injuries, it refused to pay TPD benefits. A claim for TPD was filed and the case went to trial.

At trial, the Claimant established through medical and other evidence, that her physical limitations after the accident did not allow her to return to and adequately perform her prior job with the employer, resulting in a reduction of her wages below 80% of her pre-injury average weekly wages (AWW). See section 440.15(4)(a) (providing compensation shall be equal to 80 percent of the difference between 80 percent of the employee's average weekly wage and the salary, wages, and other remuneration the employee is able to earn post-injury, as compared to weekly). The employer defended by contending that the Claimant could not establish a "causal connection" between her compensable injuries and her subsequent loss of wages. The employer pointed to the layoff and argued that the Claimant was capable of working and voluntarily limiting her income. The employer also proposed that the Claimant could not satisfy her burden of proving a causal relationship between her injuries and the subsequent loss of income, because she failed to engage in a job search during her period of medical recovery. The employer presented no evidence that the Claimant was terminated from post-injury employment for misconduct, or left the employment for unjustifiable reasons.

The Judge of Compensation Claims, Charles Hill, III, disagreed with the employer, concluding that, by proving the incapacity to perform her pre-injury job, which resulted in a direct reduction of earnings, the Claimant had carried her burden for TPD benefits under 440.15(4)(a), a burden which was not overcome by the employer. The employer appealed the judge's ruling. The First District Court of Appeal upheld Judge Hill's ruling.

Because the TPD issue is one of great importance and much confusion, resulting in extensive litigation, the court decided to publish a thorough and thoughtful opinion for guidance. The effort is appreciated. The court addressed numerous points. Among them:

Affirmative Defenses to Payment of TPD
Affirmative defenses are legal positions raised by a party in opposition to claims for relief made against them by another party. The party raising an affirmative defense has the burden of proving the defense. The opposition has no obligation to rebut a position that has not been established. The appellate court noted that the employer failed to come forward with any evidence supporting any affirmative defense to TPD, which include: the employee unjustifiably refuses suitable employment; the employee is terminated from post-injury employment for "misconduct;" the employee leaves her post-injury employment without just cause.

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November 9, 2010

Florida Workers' Compensation and Independent Contractors

With the exception of independent contractors working or performing services in the construction industry (Florida Statute 440.02(15)(c)3), individuals working as independent contractors are not eligible for workers' compensation benefits from the companies for whom they are performing services. The reason why is because they are not considered employees of those companies. F.S. 440.02(15)(d)1.

These statements should not be misconstrued as meaning that employees of independent contractors are not entitled to workers' compensation. Such employees are entitled to workers' compensation from their own employers. However, in many instances, the individuals who work as independent contractors are self-employed or work for others who do not have workers' compensation insurance.

Many companies seek to limit their workers' compensation insurance premiums and claims by classifying individuals as independent contractors when they are not. On the opposite end of the spectrum, some companies try to avoid being sued for negligence by classifying independent contractors as employees. See Florida Statute 440.11 Exclusiveness of Liability.

The issue has been heavily litigated in Florida. To provide some guidance on the issue, the Florida Legislature created a checklist of factors to consider in making the determination. See 440.02(15)(d). The factors include:


  • Whether or not the individual maintained a separate business, with his or her own work facility, truck, equipment and materials;

  • Whether or not the individual holds or has applied for a federal identification number;

  • Whether or not the individual performs work for any entity in addition to the person for whom he or she was performing work at the time of the accident;

  • Whether or not the individual incurs the expenses of the work performed;

  • Whether or not the individual may realize a profit or a loss in connection with the work;

  • The success or failure of the individual's business depends on the relationship of business receipts to expenditures

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November 4, 2010

Florida Law: Are ATVs Dangerous Unstrumentalities?

In 1920, the Florida Supreme Court, in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), applied the dangerous-instrumentality doctrine to automobiles. The significance of the holding is that owners of automobiles are responsible for personal injuries caused through the negligence of those who drive their vehicles. The legal theory that holds the owner accountable is known as vicarious liability. The Supreme Court reasoned:

This form of vicarious liability is not based on respondent superior or an agency conception, but on the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent.

(See this blog for a major exception to the danagerous-instrumentality doctrine.)

In 1984, the Florida Supreme Court expanded the dangerous-instrumentality doctrine to include golf carts, even those being used on the golf course. Meister v. Fisher, 462 So. 2d 1071 Fla. 1984). However, as the evolution of common law doctrine moves at a glacial pace, it has not yet been determined if ATVs are dangerous-instrumentalities for purposes of vicarious liability. The question is likely to be answered soon.

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November 2, 2010

The Truth (and Lies) About Medical Malpractice Litigation - Florida Perspective

Through years of misrepresentations, the insurance and medical industries have convinced the general public that every medical malpractice jury verdict favors the patient regardless of the merits of any particular case. Like a non-stop chant - think Florida State University football games - they scream of a crisis involving frivilous claims and fleeing doctors (but refuse to make the same claims under oath). The statistics tell a much different story.

According to the Insurance Information Institute, a study of almost 11,000 medical malpractice trials between 1985 and 1999 found that provider-defendants won approximately 81 percent of the time. A Bureau of Justice Statistics study of medical malpractice cases tried in large counties across the United States found that defendants won approximately 73 percent of the time. By contrast, the study reports that plaintiffs won 52 percent of all tort trials (not just medical malpractice trials) in its sample that took place in 2001.

Despite the availability of these enlightening numbers, the false misrepresentations have not abated. Sadly, the legislators of many states, Florida included, have accepted, purposely or not, the misrepresentations like a grouper swallowing its prey. The result has been the enactment of laws making it prohibitive to pursue a claim for negligence against medical providers.

In Florida, pre-suit requirements can exact the expenditure of upwards of $10,000 before a lawsuit can be instituted, versus a more reasonable $400 filling fee to initiate a claim against a non-medical provider. In addition, the Florida Legislature, aided and abetted by Governor Jeb Bush, placed arbitrary damage caps on awards against medical providers. (See this blog.) Claims against non-medical providers do not have similar arbitrary damage caps.

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