August 2011 Archives

August 27, 2011

Strategies for Handling Florida Personal Injury Claims Against Drunk (DUI) Drivers

drunk.jpgPersonal injury cases against drunk drivers present positive opportunities for Plaintiff lawyers to seek punitive damages and recover enhanced compensatory damages (e.g., pain & suffering; lost wages).

Punitive Damages

The procedure for claiming punitive damages and the standards for holding a defendant liable for punitive damages are set forth in Florida Statute 768.72.

A claim for punitive damages may not be plead in the initial complaint. Rather, the Plaintiff must seek leave of court to amend the complaint to claim punitive damages. The judge should allow the amendment if evidence in the record or proferred by the Plaintiff provides a reasonable basis for recovery of such damages. Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996) and F.S. 768.72(1). Contrary to the proposition often put forward by Defendants, the statute does not require an evidentiary hearing to permit the amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court's determination. Strasser v. Yalamanchi, 677 So.2d 455 (Fla. 2d DCA 1981).

768.72 says this about what must be shown to establish liability:

(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:


(a) "Intentional misconduct" means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

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August 24, 2011

Florida's Dangerous Instrumentality Doctrine and Motor Vehicles

hummer.jpgFlorida's dangerous instrumentality doctrine imposes vicarious responsibility upon the owner or other possessor of a motor vehicle who voluntarily entrusts it to another for any subsequent negligent operation which injures a member of the traveling public. Jackson v. Hertz Corporation, 590 So.2d 929, 937. See Kraemer v. General Motors Acceptance Corp., 572 So.2d 1363 (Fla. 1990); Susco Car Rental Sys. v. Leonard, 112 So.2d 832 (Fla. 1959); Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947); Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920); Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975 (1917).

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August 20, 2011

Florida Workers' Compensation - The Claimant's Standard of Proof

scales of justice.jpgIn its infinite, albeit, less than perfect wisdom, American jurisprudence places on the party asserting a claim the burden of proving the claim. In criminal and civil cases, the proponent must, to use a sports analogy, outscore the opponent in order to win. A tie or less is never a victory but often a defeat. The standard in Florida workers' compensation cases may be an exception to the rule.

Everyone is familiar with the standard of proof in criminal cases. For a defendant to be convicted, the prosecution must prove the defendant's guilt beyond and to the exclusion of any reasonable doubt. In college football terms, this is the equivalent of a 63-10 pasting.

This is an extremely high standard, as well it should be.

The burden of proof is not nearly as high In civil cases (e.g, personal injury; medical malpractice; premises liability). Nevertheless, the proponent (i.e., Plaintiff; Claimant; Petitioner) maintains the burden of presenting evidence that tips the scale in his or her favor, i.e., the weight of the evidence must favor the proponent by at least 51%. The standard is described in Florida Standard Jury Instruction 401.3 GREATER WEIGHT OF THE EVIDENCE as follows:

"Greater weight of the evidence" means the more persuasive and convincing force and effect of the entire evidence in the case.

Instead of a 63-10 shellacking, a last second field goal for a 1 point victory will do the job.

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August 17, 2011

Florida Personal Injury Law: Releasing Active Tortfeasors

Through legal doctrines such as those pertaining to dangerous instruments (e.g., motor vehicles), principals & agents, and employers & employees, passive tortfeasors can be held liable for the active negligence of others. An active tortfeasor is the person whose negligence has caused an accident, while a passive tortfeasor is the person or company made liable through one or more legal doctrines such as those mentioned above. This type of liability on the part of the passive tortfeasor is known as vicarious liability.

Examples: #1: Through the dangerous instrumentality doctrine, the owner of a motor vehicle will be liable for damages caused by the permissive driver of that vehicle. #2: An employer will be responsible for the damages caused by its employee in the course and scope of the employment. (Our law firm is currently in suit against Mears Destination Services, Inc. for an accident caused by the driver of one of its buses. Mears is vicariously liable under both examples.)

For various practical and strategic reasons, it is sometimes beneficial for the Plaintiff (the party harmed) to reach a settlement with the active tortfeasor, while the passive tortfeasor remains a Defendant in the case. Can this be done without [the Plaintiff] losing the right to continue his or her fight against the passive tortfeasor? Although it may seem counterintuitive, the answer is Yes.

This wasn't always so. It took statutes then court opinions based on the statutes to change the law. The first positive Florida statute was enacted in 1957, while the first good appellate decision interpreting the statute was Hertz Corp. v. Hellens, 140 So.2d 73 (Fla. 2d DCA 1962). Since then, Florida law has become even clearer on the subject through the following authorities:

Florida Statutes:

Case Law:
Another aspect that was, but is no longer problematic when settling with active tortfeasors concerns dismissals with prejudice. In JFK Medical Center, Inc. v. Price, 647 So. 2d 833 (Fla. 1994), a medical malpractice case, the Plaintiff settled with the active tortfeasor doctor, agreeing to dismiss the case against him with prejudice. The passive hospital, which was a party due to its alleged employer/employee relationship with the doctor, moved for summary judgment on the theory of res judicata, arguing that the claim against it was barred by the active tortfeasor being dismissed with prejudice. The trial court granted the hospital's motion. The 4th DCA reversed the trial court and the Florida Supreme Court approved the appellate court's decision, holding "that a voluntary dismissal of the active tortfeasor, with prejudice, entered by agreement of the parties pursuant to settlement, is not the equivalent of an adjudication on the merits that will serve as a bar to continued litigation against the passive tortfeasor." 647 So. 2d at 834.

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August 13, 2011

South Florida FLSA Lawyer: Fair Labor Standards Act Requires Overtime for Piece Rate Employees

The Fair Labor Standards Act (FLSA) authorizes piece rate pay. However, the Act also requires the payment of overtime wages for every piece rate hour over 40 worked weekly. 29 U.S.C. § 207(f) (2010).

The overtime rate is determined by establishing the "regular rate of pay," § 207(e) (2010), which is done by dividing the employee's total weekly earnings by the number of hours worked. The overtime rate is 50%, or 1/2, of the regular rate of pay.

For example: An employee is paid $400.00 for 50 hours of piece rate work in a week. $400 divided by 50 results in a regular rate of pay of $8.00 per hour, making the overtime rate $4.00. The employee's pay should have been $440.00 (50 x $8.00 + 10 x $4.00).

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August 10, 2011

FLSA Topics: "On the Clock;" "Di Minimis Time;" "Rounding;" Etc.

clock.jpgThe Fair Labor Standards Act (FLSA) is full of twists and turns. Here are just a few of them:

On the Clock: With the everyday use of cellular phones, computers, emails, and text messaging, employers can find themselves facing claims for FLSA overtime wage claims for heretofore unexpected reasons. Employees performing work activities such as responding to emails, text messages and telephone may be considered "on the clock" for purposes of the FLSA.

If enough employees are involved, the consequences can be devestating to the employer. ABC News recognized the threat when it stripped all of its writers of company-issued BlackBerrys. Employees of publicly traded real-estate company CB Richard Ellis are pursuing a collective claim for OT wages for required after-hours use of their BlackBerrys.

The FLSA is clear that non-exempt employees are entitled to compensation at 1.5 times the hourly rate for all time over 40 worked in a week. Two exceptions:

De Minimis Time: Not all time non-exempt employees work over 40 in a week is compensable at 1.5 times the normal rate. The exception is for de minimis time.

The Department of Labor describes this time as being a few seconds or minutes duration beyond the scheduled time. The various appellate courts do not hold a uniform view, keeping the door open to litigation. The US Court of Appeals, Federal Circuit, in Carlsen v. United States, 521 F.3d 1371 (Fed. Cir. 2008), suggested that 10 minutes was the cutoff. The Ninth Circuit Court of Appeals rejected the idea of time alone being the determining factor for whether an activity is de minimis. In Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984), it established three considerations: "(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work." Id. at 1063.

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August 8, 2011

Florida Vehicle Insurance Law: PIP Setoff Not Applied Uniformly

Florida Statutes section 627.733, entitled Required Security, requires all motor vehicle owners to maintain "no-fault" automobile insurance covering, among other items, 80% of the insured's own medical expenses. See §§ 627.733(1), (3)(a), 627.736(1)(a). The typical Florida PIP policy has a $10,000 coverage limit with deductibles of up to $2,000.

From a fair reading of the statutes it seems that every vehicle owner who procures the mandatory no-fault coverage is exempted from tort liability for 80% of medical expenses and 60% of lost wages up to the PIP policy limit (typically $10,000).

However, what happens when the fault-free party fails to maintain the required PIP coverage? In other words, the non-negligent party is in violation of the law by failing to maintain PIP.

Until the Florida Supreme Court rules on the issue, the answer depends on where in Florida the accident happens.

Florida's civil court system is divided into county courts, circuit courts, district courts of appeal, and the Florida Supreme Court. The county and circuit courts are the only trial courts within the system, while the DCAs and the Florida Supreme Court are dedicated appellate courts.

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August 7, 2011

Nursing Home/ALF Abuse: Florida Republicans Fail Elderly/Infirm

wheelchair.jpgFlorida Republicans have controlled the state's legislature and Governor's office (Jeb Bush (1998-2006); Charlie Crist (2006-2010); Rick Scott (elected in 2010)) for more than 10 years. Their time in power has seen a decline in the rights and protections afforded Florida's elderly and infirm. Bad legislation and funding cuts are the reasons for the decline.

The Republican policy of putting business interests before individuals explains the bad legislation and funding cuts. The beat goes on....

In its hard-hitting multi-part series, Neglected to Death, The Miami Herald exposes the sorry state of affairs involving Florida's ALF/nursing home industry. (Here is a link to the newspaper's latest story in the series, State of Failure.)

Examples since 2007:


  • Encouraged by Florida's largest industry group, a dozen legislators came forward with 36 pieces of legislation to remove or weaken regulations - including parts of the Residents' Bill of Righs that guarantees safety and protection to vulnerable adults. (This past legislative session saw 23 such bills.)

  • In 2009, lawmakers said that state regulators no longer have to report abuses and deaths to the Legislature, instead allowing them to keep the cases secret.

  • Republican lawmakers rejected a plan to crack down on rogue operators.

  • Saying they were too expensive, lawmakers blocked efforts to increase inspections by state agencies to once every 15 months.

  • AHCA inspectors - ACHA is the state agency charged with controlling conditions in the facilities - were stripped of the authority to call doctors to get residents removed from facilities, leaving the decision to the facilities.

  • During the 2011 legislative session, fellow Republicans tried to repeal a law sponsored by Sen. Mike Fasano requiring homes to carry life-saving heart devices. "It's outrageous," he said. "I shake my head in disbelief. The cost is minimal to what the cost of life is.

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August 6, 2011

FLSA "Companionship Services" Exemption - Does it apply to CNAs, LPNs, and RNs?

The Fair Labor Standards Act (FLSA) requires employers to pay employees overtime pay, at a rate of time and a half, for all hours worked in excess of 40 hours per week. However, the Act contains many exemptions.

Many court battles have and will continue to be fought over these exemptions. One that is difficult for Claimants to beat is the so-called "Companionship services" exemption, derived from The Code of Federal Regulations, Title 29, Section 552.6. The section provides as follows:

As used in section 13(a)(15) of the Act, the term companionship services shall mean those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, That such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked. The term ``companionship services'' does not include services relating to the care and protection of the aged or infirm which require and are performed by trained personnel, such as a registered or practical nurse. While such trained personnel do not qualify as companions, this fact does not remove them from the category of covered domestic service employees when employed in or about a private household.

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August 3, 2011

President Obama Signs National Food Safety Bill

In January of this year, President Obama signed a $1.4 billion overhaul of the nation's food safety system. It is the first major overhaul of the food safety system since the 1930s. It comes on the heels of several deadly outbreaks of E. coli and salmonella poisoning in peanuts, eggs, and produce in the past few years, and aims to reduce the estimated - by the CDC - 48 million Americans who are sickened every year by food borne illness. (Of that, 180,000 are hospitalized and 3,000 die.) The law emphasizes prevention through increased inspections of U.S. and foreign food facilities, allowing the FDA to order the recall of tainted food, the imposition of new safety regulations on producers of the highest-risk fruits and vegetables, and requiring processors to provide detailed food safety plans to the FDA. (The law exampts meat, poultry and processed eggs, since they are regulated by the Agriculture Department. Also exempt are some small businesses.)

Only right-wing Republicans would oppose such legislation ... and they do.

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August 2, 2011

Florida Premises Liability Law Allows Evidence of No Prior Similar Events

Premises liability lawyers, both Plaintiff and Defense, know that evidence of prior accidents or events may, by a showing of substantially similar conditions, be admissible to prove one or more elements of a case. Less well recognized is that no-accident history may also be admitted into evidence for a variety of purposes.

No-accident history may be admissible to show: (1) An absence of the defect or condition alleged, (2) the lack of a causal relationship between the injury and the defect or condition charged, (3) the nonexistence of an unduly dangerous situation, or (4) want of knowledge (or of grounds to realize) the danger.

Relevant cases


  • Springtree Props., Inc. v. Hammond, 692 So.2d 164, 165 (Fla.1997) (considering absence of similar accidents in determining whether fact issues remained)

  • Cent. Theatres v. Wilkinson, 154 Fla. 589, 18 So.2d 755 (1944) (evidence that for several years there had been no accident from shooting at location admissible);

  • Lewis v. Sun Time Corp., 47 So. 3d 872 3rd (Fla. 3rd DCA 2010) (allowed evidence of no-falls on wet terrazzo steps since the hotel was opened in 1937)

  • State, Dep't of Transp. v. Patterson, 594 So.2d 830, 831 (Fla. 4th DCA 1992) ("[A]ppellant was entitled to have the jury consider that the records it still maintained revealed no bicycle accidents in the tunnel prior to the present accident.")

  • McAllister v. Robbins, 542 So.2d 470, 471 (Fla. 1st DCA 1989) (relying in part on evidence that no one had fallen over the concrete blocks at issue during the preceding seventeen years)

  • Doe v. U.S., 718 F.2d 1039, 1043 (11th Cir.1983) (applying Florida law and approving evidence that for a number of years before the incident, there had never been a crime against a person committed on the premises)

  • Perret v. Seaboard Coast Line R.R. Co., 299 So.2d 590, 594 (Fla.1974); Williams v. Madden, 588 So.2d 41, 43 (Fla. 1st DCA 1991); Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075 (Fla. 3d DCA 1983) involving the admission of testimony concerning the prior safety history of the site in question, that is, previous accidents or their absence

  • Lawrence v. Fla. E. Coast Ry. Co., 346 So.2d 1012, 1015 (Fla.1977) ("[D]eterminations of whether a proper predicate of similarity exists should be left to the sound discretion of the trial judge.")

  • Friddle v. Seaboard Coast Line R.R. Co., 306 So.2d 97 (Fla.1974); Ry. Express Agency, Inc. v. Fulmer, 227 So.2d 870, 873 (Fla.1969); Hogan v. Gable, 30 So.3d 573, 575-76 (Fla. 1st DCA 2010); Warn Indus. v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977); but cf. Godfrey v. Precision Airmotive Corp., 46 So.3d 1020 (Fla. 5th DCA 2010); Cooper v. State, 45 So.3d 490 (Fla. 4th DCA 2010) (concluding "the dissimilarities of these cases are greater than their similarities")

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August 1, 2011

Rescinding Insurance Policy - Florida Statute 627.409 vs. "Knowledge and Belief"

Florida Statute 627.409 (2010) allows an insurance company to rescind an insurance policy on the grounds of misrepresentation if it can prove:

a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.

(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.

However, in Casamassina v. US Life Ins. Co., 958 So. 2d 1093 (4th DCA 2007), the insurance carrier was prevented from using the statute to rescind the policy by language in its own insurance application.

United States Life Insurance Company issued a $500,000 life insurance policy to John Casamassina on November 6, 1997. Less than two weeks later, Casamassina was diagnosed with a brain tumor; he died on December 4, 1997. After U.S. Life denied the policy claim, the trust beneficiary of the policy and the widow filed suit.

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