January 2011 Archives

January 29, 2011

Florida Negligent and Inadequate Security Law and Intentional Criminal Acts

Florida no longer recognizes the principle of joint and several liability with regard to satisfying final judgments rendered in personal injury cases. Under the concept of joint and several liability, one liable defendant could be forced to pay for the fault of other defendants. One of the theories behind the concept is that the damages would not have occurred but for that party's fault, so make each party whose fault formed part of the chain leading to the total damages, liable for the fault of all.

Where one or more of the at-fault defendants did not have the financial means to pay its share of the damages, a defendant could be stuck with paying a disproportionate share of the judgment relative to its degree of fault. This procedure worked to the benefit of plaintiffs, who could turn to any defendant to satisfy the whole judgment. Consider this example: The drivers of a Coca-Cola truck and an uninsured vehicle are found equally at-fault for causing a horrible highway accident resulting in the death of a minor child in a third vehicle. At trial the jury awards damages totaling $5,000,000 and a final judgment is entered in this amount. Under joint and several liability, the Coca-Cola company can be forced to satisfy the entire judgment, although the jury has decided that its driver was only 50% at-fault. With the elimination of joint and several liability by the Florida Legislature, plaintiffs can no longer rely on any defendant to satisfy the entire judgment. Under current law, in my example, Coca-Cola would have to pay $2,500,000 instead of the full $5,000,000 final judgment.

What about when a violent crime is committed and a negligent security case is brought against the property owner and/or party in possession of the property for failing to prevent the crime? As between the property owner/possessor and the perpetrator of the crime, does the property owner get a discount on its liability to the extent of the perpetrator's role in the event? Thankfully, the answer is a resounding No.

Fabre v. Marin, 623 So.2d 1182 (Fla.1993) is the Florida Supreme Court case that requires the allocation of fault among all negligent parties, including the plaintiff. The jury makes the determination and provides its answer on what is called the Jury Verdict Form. The verdict form will contain the name of everyone accused of being at-fault, even those not a party to the lawsuit, and the jury will determine the percentage of fault of each. Each defendant pays no more than its percentage of fault, regardless of whether or not any other at-fault defendant has the financial means to satisfy its share of the final judgment. No longer can the plaintiff look to one defendant to satisfy more than its share of a judgment.

Continue reading "Florida Negligent and Inadequate Security Law and Intentional Criminal Acts" »

January 27, 2011

Identity Theft Safety Tips

Helpful tips to reduce identify theft:


  • Do not sign the back of your credit cards. Instead, put "PHOTO ID REQUIRED."

  • When you are writing checks to pay on your credit card accounts, DO NOT put the complete account number on the "For" line. Instead, just put the last four numbers. The credit card company knows the rest of the number, and anyone who might be handling your check as it passes through all the check processing channels won't have access to it.

  • Put your work phone # on your checks instead of your home phone. If you have a PO Box, use that instead of your home address. If you do not have a PO Box, use your work address. Never have your SS# printed on your checks. You can add it if it is necessary. But if you have It printed, anyone can get it.

  • Place the contents of your wallet on photocopy machine. Do both sides of each license, credit card, etc. You will know what you had in your wallet and all of the account numbers and phone numbers to call and cancel. Keep the photocopy in a safe place.

  • (Also carry a photocopy of your passport when traveling either here or abroad.)

Here is some important information to limit the damage in case your ID or identity are stolen:

  • Cancel your credit cards immediately. The key to this is having the toll free numbers and your card numbers handy so you know whom to call. Keep those where you can find them.

  • File a police report immediately in the jurisdiction where your credit cards, etc., were stolen. This proves to credit providers you were diligent, and this is a first step toward an investigation (if there ever is one).

  • Call the 3 national credit reporting organizations immediately to place a fraud alert on your name and also call the Social Security fraud line number. The alert means any company that checks your credit knows your information was stolen, and they have to contact you by phone to authorize new credit.

Here are the numbers you always need to contact with regard to your missing or stolen wallet:

  • Equifax: 1-800-525-6285 1-800-525-6285

  • Experian (formerly TRW): 1-888-397-3742 1-888-397-3742

  • Trans Union : 1-800-680 7289 1-800-680 7289

  • Social Security Administration (fraud line): (800) 269-0271 & (800) 269-0271

Continue reading "Identity Theft Safety Tips" »

January 26, 2011

President Obama Mentions Medical Malpractice Reform ("Deform") in 2011 State of the Union

I voted for President Obama and fully expect to vote for him again in 2012. However, I am disappointed by one of his remarks delivered in the 2011 State of the Union message. In speaking about taking steps to improve the economy, the president mentioned that he is willing to work with the Republicans on medical malpractice reform legislation. I am hoping that his words were only rhetoric, chum if you will, to get a few cheers from the Republicans during the address, rather than an expression of his true intentions.

Among the lawyers who handle medical malpractice cases and know the realities of this practice area beyond the rhetoric, the word "deform" is substituted for the word "reform." This is because the word "reform" suggests a good thing, while the word "deform" imparts a whole different meaning.

Make no mistake about it, the medical malpractice "reform" favored by Republicans is not a good thing for individuals harmed by serious medical mistakes. Their idea is to make it more difficult, if not completely impractical, for individuals harmed by medical negligence to seek redress through the civil justice system. I consider this a bad thing rather than a good thing, hence the use of the word "deform."

For many years, powerful forces, in particular, the insurance industry, have pounded into the psyche of American society that our country faces a medical malpractice crisis. However, the truth is far different than the propoganda.

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January 25, 2011

Personal Liability of Managers Under the Fair Labor Standards Act (FLSA)

One of the principal reasons for business being conducted through a corporation, is for the officers, directors, managers, and shareholders of the corporation to be shielded from personal liability for the company's failures and mistakes. Absent fraud or comingling, the so-called corporate shield is supposed to protect them from personal liability. This holds true for most business deals gone sour and accidents caused by corporate negligence such as by defective products.

To the surprise of many, the Fair Labor Standards Act (FLSA) has a vehicle for piercing the corporate shield.

Congress enacted the FLSA in 1938 to create and maintain minimum standards of living for workers in industries engaged in interstate commerce. Section 202. Congress attempted to secure this goal, in part, by enacting a prohibition which generally mandated that individuals who work more than 40 hours in a week receive an overtime premium. In essence, the Act provides for the payment of overtime wages calculated at X-1/2 for all hours worked over 40 in a week.

Some employers try to skirt the law through creating a variety of false arrangements, however, the majority of those in violation only do so through innocent ignorance or misunderstanding. In piercing the corporate veil, the FLSA does not draw a distinction between intentional acts and innocent mistakes.

Continue reading "Personal Liability of Managers Under the Fair Labor Standards Act (FLSA)" »

January 22, 2011

Florida Legal Issues Regarding Motorcycle Insurance

No type of insurance coverage is required to lawfully operate a motorcycle in Florida. The owner of a motorcycle can obtain a license plate and registration without any coverage. This is different than the law with regard to cars and trucks. The owner of either of those types of motor vehicles must, at a mimimum, have Personal Injury Protection (PIP) and Property Damage - Liability insurance to obtain a plate and registration. (PIP is no-fault coverage and can pay the policy holder and a few others up to $10,000 for medical benefits and lost wages, while PD - Liability covers property damage to the other vehicles.)

However, in the event of an accident resulting in death or personal injury, if the uninsured motorcyclist or car/truck owner with only PIP/PD is charged with causing the accident, his/her drivers license and all vehicle registrations will be suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) of the Florida Statutes. Taking it one step further, these consequences will also result to the inadequately insured owner even if he/she was not operating the vehicle, if the accident was caused by a permissive user. This is because Florida considers vehicles used on its roads and highways to be dangerous instruments, subjecting its owners to the same liability for accidents as the permissive operators.

Continue reading "Florida Legal Issues Regarding Motorcycle Insurance " »

January 21, 2011

FLSA/Overtime Protection for Light Weight Truck Drivers

The Fair Labor Standards Act (FLSA), enacted in 1938, was Congress's effort to create and maintain minimum standards of living for workers in industries engaged in interstate commerce. Congress attempted to secure this goal, in part, by enacting a prohibition which generally mandated that individuals who work more than 40 hours in a week receive an overtime premium. However, until 2005, drivers, drivers' helpers, loaders and mechanics of vehicles weighing 10,000 lbs. or less who performed tasks that affected the safety of vehicles operating in interstate commerce were exempted from the maximum hours provisions of the Act, set forth specifically in 29 U.S.C. Section 207. This changed on August 10, 2005, when the exemption was removed by the enactment on August 10, 2005, of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).

The FLSA is a complicated set of laws laden with numerous exemptions and qualifications. Employers and employees should consult with a legal expert well-versed in handling FLSA cases to address the many aspects of the Act.

Continue reading "FLSA/Overtime Protection for Light Weight Truck Drivers" »

January 19, 2011

Florida Workers' Compensation Statute of Limitation

A statute of limitation is a provision that ends a person's or company's right to sue with regard to a legal dispute. Every legal dispute in Florida is subject to a statute of limitation, with the time period in any particular matter depending on the nature of the dispute. Florida Statute 95.11 sets forth the statute of limitation periods for most legal disputes. The statute of limitation for workers' compensation cases is set forth in Florida Statute 440.19.

The workers' compensation statute of limitation is a provision that ends a person's right to claim benefits or sue for compensation and damages unless the person meets certain conditions. For accident dates after January 1, 1994, a claim or petition for benefits is forever barred unless it is filed within (1) two years of the date of the injury; or (2) after the initial two years, within one year of the last payment of compensation or provision of remedial treatment, care or attendance.

The start of every statue of limitation period is triggered by an occurence or event. For example, in a breach of contract matter, the triggering event is the breach of the contract. For wrongful death, it is the date the cause of the wrongful death was confirmed or suspected, typically the date of the accident. In workers' compensation cases, the work-related accident starts the limitation period running.

In cases involving clearly identifiable accidents and injuries, such as breaking an ankle after falling from a ladder, the date of accident as the triggering event is obvious. However, not all triggering events are so obvious. For example, a worker may feel a twinge in his back from lifting a heavy box, and for a time feel only minor discomfort, then one day, even a week or two later, experience full-blown symptoms indicative of a bad herniated disc injury. Under this scenario, the statute of limitation period may not begin to run until the full-blown symptoms manifested, which is when the injured worker, as a reasonable person, should recognize 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)]. In other words, the triggering event may come after the actual date of accident.

Other examples of how the workers' compensation statute of limitation is applied:


  • Occupational Disease: An occupational disease is one that arises from the hazard of a disease particular to a job that distinguishes it from the usual run of occupations, or the incidence of the disease is substantially higher in that occupation [see Florida Statute 440.151]. In cases involving occupational disease, the statute of limitation clock begins to run from the date of disability. Disability is defined in Section 440.02(13) as "incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury." This means that the date when the SOL clock begins to run may be different from the date the injured worker was first exposed or when he or she detected the disease, or even when symptoms first appeared.

  • Injuries from Repetitive Trauma: A repetitive trauma injury is one in which disability results from months or even years of minor, but repetitive trauma. (My first workers' compensation trial involved a repetitive trauma injury. We alleged and, fortunately, were able to prove, that our client's serious back condition developed from years of lifting heavy bed box mattress frames from ground level to overhead shelves.) In these cases, the SOL begins to run from the date of the disability or the date of last injurious exposure, whichever is later.

Continue reading "Florida Workers' Compensation Statute of Limitation" »

January 12, 2011

Determining the Settlement Value of Florida Workers' Compensation Cases

Many factors go into determining the settlement value of a Florida workers' compensation case. Although the opposing parties are seeking different outcomes - the Claimant wants to recover as much as possible, while the Employer/Carrier wishes to settle for as little as possible - each side benefits from performing a fair and honest evaluation; neither party gains an advantage from being deluded about a case's true value.

This is not to say that the parties, after performing their assessments, will always arrive at similar conclusions. Law is more art than science. Judgment calls based on a countless number of variables often result in significantly different conclusions. The goal of successful negotiating is to narrow the differences to an acceptable agreement.

Before considering the factors that influence case value, it should be noted that no party to a workers' compensation case can be forced to settle. Not even a judge of workers' compensation claims can force a settlement on the parties. Moreover, there is no jury system in workers' compensation where a verdict is reached awarding a lump sum of money. Most workers' compensation cases are mediated, but the settlement can only come through an agreement of the parties.

It should also be noted that compensation for non-economic damages (sometimes referred to as, Pain & Suffering) is not awardable in workers' compensation cases. (See these blogs: personal injury; wrongful death.)

Continue reading "Determining the Settlement Value of Florida Workers' Compensation Cases" »

January 9, 2011

Differences Between Florida's Workers' Compensation System and the Wrongful Death Act for Loss of Life

Yesterday's blog was about the primary legal differences between Florida's workers' compensation and personal injury systems with regard to accident-related bodily injuries. Today's blog will address the differences, which are significant, between Florida's workers' compensation system and it's Wrongful Death Act for the loss of life due to accidents.

For the most part, the laws in Florida regarding compensation for death caused by accidents are prescribed by statute. Workers' compensation addresses the issue through Florida Statute 440.16, while Florida's Wrongful Death Act (768.16-768.26), covers it in the context of third-party liability. (CAVEAT: There are exceptions to Florida's workers' compensation immunity laws that could make the employer liable for damages under the Wrongful Death Act. A lawyer should always be consulted to consider the issue.) The differences between the two bodies of law are significant.

THE MAIN DIFFERENCES:


  • Negligence. As a legal concept, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. It is often difficult to prove negligence. While negligence does not have to be established in a workers' compensation case, it is a necessary and essential element of every wrongful death case other than those involving strict liability.

  • Damages. The monetary compensation for death in workers' compensation may not exceed $150,000, up from $100,000 from just a couple of years ago. With the exception of death caused by medical malpractice (see this blog), the wrongful death statute does not contain a similar arbitrary cap. The wrongful death statute allows for what is known as non-economic damages (e.g., loss of companionship; mental pain and suffering). Florida's workers' compensation system does not. The primary reasoning for the difference has to do with the issue of negligence. The Florida Legislature has decided that not being allowed to recover non-economic damages is a fair price to pay for not having to prove negligence in workers' compensation cases. In my view, $150,000 hardly makes for a fair trade-off. Workers' compensation allows for the recovery of $7,500 in funeral expenses.

  • Who May Recover Damages. Both bodies of law contain statutory schemes for who may recover damages for death resulting from an accident. Each scheme is convoluted. The monetary benefits through workers' compensation are paid on a periodic basis, while the compensation under the Wrongful Death Act are paid in a lump sum. I have prepared a flow chart for who may recover under the Wrongful Death Act - follow this link.

  • Statute of Limitations. Two (2) years for each. There are exceptions and variations on this black-letter statement, so a knowledgeable lawyer should be consulted before any conclusions are reached.

  • Trial by Jury. Not available in workers' compensation cases. Available upon request in wrongful death cases.

  • Attorney Representation. Available in both types of cases.

The issues addressed in this blog are complex and complicated, not nearly as simple as they may appear here. It is for this reason that we encourage and highly recommend that these issues be addressed with a qualified attorney.

Continue reading "Differences Between Florida's Workers' Compensation System and the Wrongful Death Act for Loss of Life" »

January 8, 2011

The Differences Between Florida Workers' Compensation and Personal Injury Cases

As our law firm has an expertise in workers' compensation and personal injury cases, we are frequently asked to explain to our clients and other lawyers the differences between the two. Although both types of cases involve bodily injuries, they have little else in common.

With rare exception (see Florida Statute 440.11), the remedies available against employers for job related accidents are controlled by Chapter 440 of the Florida Statutes, which is the body of law devoted to workers' compensation cases. Personal injury cases are controlled by different statutes and case law. The differences are significant.

THE MAIN DIFFERENCES:


  • Negligence. As a legal concept, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. It is often difficult to prove negligence. Whereas proving negligence is not required in workers' compensation cases, it is an essential element of every personal injury case except those involving strict liability.

  • Compensation for Pain and Suffering. Because workers' compensation claimants are relieved of the heavy burden of having to prove negligence, the Florida Legislature, as a trade-off, does not allow them to be compensated for pain and suffering. In contrast, personal injury claimants can be compensated for pain and suffering. This difference is easily the most difficult concept for our workers' compensation clients to understand. It is counter-intuitive. We spend a significant amount of time discussing this concept with all of our workers' compensation clients.

  • Medical Benefits. Medical benefits are furnished to injured workers pursuant to the workers' compensation system. It is a lousy system for injured workers (see this blog), with the biggest negative being that employers and their insurance carriers control the selection of all medical providers. By contrast, personal injury claimants do not have automatic medical benefits; claimants must fend for themselves in obtaining medical care. PIP (motor vehicle accidents), health insurance, and Medicare/Medicaid are the main sources sometimes available to cover the expense. It is more difficult for the uninsured. Arrangements can sometimes be made through the lawyer for the provision of medical care. In theory, the personal injury claimant is supposed to be compensated at the end of the case for past and future medical expenses.

  • Lost Wages. Like medical benefits, eligibility for workers' compensation lost wages starts with the report of a work related accident. The benefit amount ranges from 66-2/3% to 80% of 80% of lost wages. Except for permanent total disability (PTD - 440.15(1)), a difficult standard to prove, the limit for the number of weeks of temporary disability benefits (i.e., prior to reaching maximum medical improvement) a claimant may receive is 104. Only a small percentage of claimants receive the full 104 weeks of benefits. The personal injury system for the payment of lost wages is significantly different. There is no built-in equivalent, like in workers' compensation, for self-executing benefits to be paid. In some instances, PIP and private disability insurance fill the role, but often those benefits are not available or applicable. For the most part, it is not until the case is resolved that the personal injury claimant is compensated for lost wages past and future. The standards that apply for the determination and entitlement to lost wages also are different between workers' compensation and personal injury cases.

  • Trial by Jury. Not available in workers' compensation cases. Available upon request in personal injury cases.

  • Statute of Limitations. 2 years for workers' compensation, 4 years for personal injury. (Be careful not to confuse the personal injury statute of limitations with the statutes of limitations applicable to wrongful death cases (2 years) and medical malpractice (2 years). Also, in personal injury cases against a governmental entity, although the statute of limitations is 4 years, a particular written statutory notice of claim must be given within 3 years. Finally, and of great importance, sometimes there are ways of extending a statute of limitations beyond the black-letter numbers given above. Accordingly, it is important to discuss these issues with an attorney before concluding that it is too late to pursue any legal claim based on a statute of limitations.)

  • Attorney Representation. Available in both types of case. We handle both type of cases on a contingent basis (no fees and costs payable by the client until we win the case), but, by law, the fee formulas are significantly different.

There are numerous other differences between workers' compensation and personal injury cases, but these are the main ones. Needless to say, an experienced legal professional should be consulted to discuss all of these issues.

Continue reading "The Differences Between Florida Workers' Compensation and Personal Injury Cases" »

January 7, 2011

Negligent Security (Rape/Assault/Murder) Law in Florida is a Creature of Premises Liability Law

I have blogged previously on various topics pertaining to premises liability law (open & obvious doctrine; slip & fall; dog bites; and natural conditions. One topic about which I have not written is negligent security.

Negligent security cases involve harm to residents, guests, patrons and the like through the conduct of a bad actor such as a rapist or a mugger.

One of my previous blogs addresses the general principles of Florida law regarding landowner liability for accidents or events that occur on their property. For the most part, every commercial property owner owes some duty of care to those who enter their property, with the level of care being defined by a particular individual's status on the property (e.g., invitee, invited licensee, uninvited licensee, trespasser). These general principles apply to negligent security cases.

Sadly, rapes and assaults at commercial locations like malls and apartment complexes are events all too common in Florida. Of course, some of these crimes cannot be prevented. However, many could be deterred through reasonable security measures such as improved lighting, beefed up security, video cameras, and eliminating secluded areas.

Continue reading "Negligent Security (Rape/Assault/Murder) Law in Florida is a Creature of Premises Liability Law" »

January 6, 2011

Crashworthiness Doctrine Under Assault in Florida Legislature

I am a member of the Florida Justice Association (FJA), a Tallahassee-based organization dedicated to strengthening and upholding Florida's civil justice system and protecting the rights of Florida's citizens and consumers. Within the organization is an Internet discussion group, of which I have been a member for more than ten years, consisting of a sub-group of lawyers who only represent Plaintiffs/Claimants. In other words, no defense attorneys are allowed access to this discussion group. The group discusses legal issues concerning the rights of individuals within the context of the civil justice system. It is an invaluable resource.

Many of my blogs discuss the dangers facing Florida's civil justice system. Among the specific topics discussed regarding the larger issue deal with what is referred to in Florida as the crashworthiness or enhanced injury doctrine. (Blogs 1, 2, and 3.) I have warned that this important consumer safety law was in danger of being eliminated by Rick Scott and Florida's Republican-controlled legislature. Well, in just day two of the Rick Scott administration, the doctrine is under assault and, given the Republican numbers, likely to be killed.

Given the importance of the doctrine to the safety and well-being of people in Florida, this assault on the doctrine is a hot topic of discussion on the FJA's Internet discussion board. I found one post particularly enlightening and have decided to post it here (slightly edited). The author is Florida Attorney Rich Newsome.

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This coming Tuesday afternoon, the Florida Senate Judiciary Committee, chaired by Senator Anitere Flores, will take up an anti-consumer bill involving automobile safety. This bill is being spearheaded by Ford Motor Company and if passed, will have huge consequences for consumers who are maimed and killed by defective cars. (Blogger's note: In 2009, Ms. Flores introduced and shepherded workers' compensation legislation that has resulted in the drastic curtailment of the ability of injured workers to obtain benefits. The legislation is in the process of being appealed as unconstitutional to the Florida Supreme Court.)

Continue reading "Crashworthiness Doctrine Under Assault in Florida Legislature" »

January 4, 2011

Florida Police Department Responsibility for Sexual Assault by Law Enforcement Officers

Florida police departments are not immune from employing a few bad apples. Occasionally, we learn of a law enforcement officer taking advantage of a vulnerable woman while in uniform during working hours. When such a vile event occurs, the legal question arises as to whether or not the offending officer's agency must bear civil (as opposed to criminal) responsibility for the officer's actions. The obvious reaction would seem to be, Yes, of course!!! Unfortunately, the reality is not so simple.

Florida employers may be held liable for the intentional actions of their employees under two legal principles: (1) Negligent hiring. Where the employer knew or should have known prior to hiring that the potential employee was of unfit character, but hired anyway; and (2) Negligent retention. When the employer knew or should have known after hire of an employee's unfit character, but fails to terminate or modify the employment responsibilities.

However, merely establishing one or both of these principles is not enough. The victim must also show that (1) the unfit character of which the employer knew or should have known had some reasonable relationship to the bad acts committed; and (2) the bad acts were initiated in the course and scope of employment and to serve the interests of the employer.

One of the leading cases in Florida regarding this topic is Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744 (Fla. App. 1 Dist., 1991). Tallahassee Furniture's employee was hired to deliver furniture to customers' homes. More than one month after making a delivery, he returned to a female customer's home and raped her. The young victim sued the employer, Tallahassee Furniture, for negligent hiring and retention.

Continue reading "Florida Police Department Responsibility for Sexual Assault by Law Enforcement Officers" »