Florida Injury Attorney Blawg

We are finding that more and more employers are switching from paying wages based on set schedules to only paying for work performed. Although the practice has been in place for years, it seems to become more prevalent during tough economic times. Whether the practice is allowed under the FLSA (Fair Labor Standards Act) and Florida Statute 448.08 depends on the circumstances.

In a recent case, our client was employed to load and unload cargo planes at Miami International Airport. Because planes departed and arrived on rough schedules, he often had no work to perform for long stretches of each 8 hour shift. For the first two years, he was paid for each hour of his shift, work or no work, including overtime wages. This all changed one week without warning when his paycheck was nearly half the normal rate. He learned that the employer had changed its policy to limit wages to work performed, cutting out idle time pay. Instead of being paid for 48 hours a week, the minimum amount of time he was required by the employer to be at the airport, he was only paid for 24 to 30 hours, a substantial difference. We sued the employer for overtime wages under the Fair Labor Standards Act and unpaid wages under Florida Statute 448.08. The case ended up settling on terms favorable to our client.

Another case involves an auto mechanic who, although required by the employer to be onsite, only got paid when he worked on vehicles rather than while waiting for assignments.

Continue reading "Wages for Waiting Time - FLSA and Florida Statute 448.08 (Unpaid Wages)" »

Florida's workers' compensation system, embodied in Chapter 440 of Florida's Statutes, is mostly unfriendly towards injured workers. Some smart people predict that it is only a matter of time before the system is declared unconstitutional as no longer providing a fair alternative to the personal injury system, which is what is was created to do nearly 80 years ago and what it mostly did until 2002, until Jeb Bush and Republican legislators began eviscerating the system one large cut at a time. The workers' compensation system today is a shadow of the one that existed a mere 10 years ago. (For a detailed breakdown of the differences, see our recent blog, Florida's Workers' Compensation System's Steady Decline Into the Abyss.)

One area of Chapter 440 that has not lost its bite for injured workers is Section 440.205, which reads:

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.

440.205 has been on the books for many years. However, it took the Florida Supreme Court, in Smith v. Piezo Technology and Professional Adm'rs, 427 So.2d 182 (Fla., 1983), to make it official that 440.205 "creates a statutory cause of action for a wrongful discharge in retaliation for an employee's pursuit of a workers' compensation claim and such action is not cognizable before a deputy commissioner but rather is cognizable in a court of competent jurisdiction."

What this means is that injured workers may sue employers who have retaliated against them for making a workers' compensation claim. The lawsuit is brought in circuit court rather than in workers' compensation court, and damages can include pain and suffering, a type of damage that is not available in workers' compensation cases.

Continue reading "Survey of Florida's Workers' Compensation Wrongful Termination Law" »

The three most common toxic gases - hydrogen sulfide, carbon monoxide, and methane - can injure and kill, both slowly and instantaneously, at home and in the workplace. They are produced naturally. Where the potential exists, safety procedures and safety devices should be in place.

HYDROGEN SULFIDE: Known as sewer gas or stink damp for its rotten egg smell. Colorless and flammable, in high concentrations it can cause death in just a few breaths. It occurs naturally in crude petroleum, natural gas, volcanic gases, and hot springs, and also results from bacterial breakdown of organic matter.

CARBON MONOXIDE: This gas is odorless, colorless, impossible to see and taste. In low concentrations, CM causes flu-like symptoms such as headaches, dizziness, nausea and fatigue. At high concentrations, it is a killer. It is generated by gasoline powered equipment like motor vehicles, space heaters, gas stoves, and generators. Proper ventilation can reduce risk. In a 2010 Florida tragedy, five young teens were killed in a Hialeah motel room when a car was left running in an abutting covered garage. They were found dead in their room fully clothed. Tobacco smoke generates CM.

Continue reading "Toxic Gases (the Silent Killers) and Florida's Civil Justice System" »

As if the arbitrary and capricious damage caps already on the books were not enough, the 2012 Republican-controlled Florida Legislature is moving forward with legislation designed to keep those harmed by medical negligence from ever being compensated for their losses.

Senate Bill 1506 will allow doctors to get patients to waive their right to compensation for losses suffered from medical malpractice.

That's right, not a single penny for past and future medical expenses, lost wages, or for pain and suffering!!!

How could this be, you ask. Simple. With a Governor Rick Scott and a super-majority of radical Republicans controlling both chambers of the Florida Legislature, anything is possible.

Eliminate zoning restrictions on pristine land. Done. Tax dollars to private religious schools. Done. Reduce spending for public schools. Done. Suppress voting rights. Done.

Ending the rights of malpractice victims. Almost done.

Continue reading "2012 Florida Legislature Seeks to Eliminate Rights of Medical Malpractice Victims" »

49 U.S.C. Sec. 30106 (the "Graves Amendment") shields those "engaged in the trade or business of renting or leasing motor vehicles [when] there is no negligence or criminal wrongdoing on the part of the owner" from vicarious liability for the rented or leased vehicle. Sec. 30106(a).

Given this language, does the Graves Amendment shield car dealerships from vicarious liability for accidents involving loaner vehicles? The one decision discussing the Graves Amendment vis-a-vis free service loaners, Zisersky v. Life Quality Motor Sales, Inc., 866 N.Y.S. 2d 501 (N.Y.. Sup. Ct. 2008), says No. Correctly, in our view, the court concluded that a loaner is neither a "lease" nor a "rental."

The Graves Amendment has been used to shield rental agencies from vicarious liability for serious personal injuries caused by the drivers of their vehicles. We take issue with the Graves Amendment being applied under any circumstances, yet, sadly, it seems to be carrying the day in courts of most states with regard to rental agencies ... at great harm to many individuals.

For example, our office is currently involved in a case where the negligent renter of an Enterprise vehicle caused it to flip over numerous times on I-75 near Gainesville, Florida. Enterprise is hiding behind the Graves Amendment to deny needed compensation to our client, an innocent passenger who was airlifted to Shands Hospital.

Continue reading "Graves Amendment Does not Apply to Loaner Vehicles" »

A deposition is the gathering of sworn verbal testimony under oath. Except for communications that are protected by attorney/client privilege and the 5th amendment right against self-incrimination, witnesses are required to answer deposition questions. If a lawyer feels that a question is confusing, misstates testimony, lacks foundation, or assumes facts not in evidence, it is proper for an objection to be lodged before the question is answered. In most instances, the objection should simply be, "I object to the form of the question." This alerts the deposing lawyer that there may be a problem with the question. However, unless the lawyer invites the objecting attorney to explain or clarify the objection, nothing more should be said. Unfortunately, some lawyers abuse the right to object by not only explaining and clarifying without been asked to do so, they also suggest the response the witness should make. This obstructs the fact gathering process and is prohibited by various authorities.

It is difficult to keep disagreeable attorneys from staying in bounds during depositions. One solution is to warn the attorney and if the abuse continues, try to get the presiding judge on the telephone to issue a ruling on the spot. Sanctions can be sought after the deposition, but the cat is out of the bag by then.

Continue reading "Preventing Speaking Objections During Depositions - Florida Law" »

Traumatic brain injury (TBI) is the term used to describe brain injuries caused by trauma. Common causes of TBI include motor vehicle accidents, sport incidents, and simple fall down accidents. Brain injuries can also be caused by chemicals, lack of oxygen (hypoxia), Tumors, infection, and stroke.

No matter the cause, the consequences of TBI can be devastating physically, emotionally, and financially. TBI is also one of the leading causes of death in the United States.

TBI is a complex injury with a broad spectrum of symptoms and disabilities, ranging from headaches, dizziness, memory loss, mood swings to coma and persistent vegetative state. Even mild symptoms of TBI can have life-changing consequences.

When TBI is caused by negligence, the victim may be able to recover compensation from the at-fault party for lost wages, loss of earning capacity, pain & suffering, loss of capacity to enjoy life, and past and future medical benefits, including attendant care. In addition, the victim's spouse and dependents may be compensated for the impact of the injury on their lives.

Continue reading "Legal Remedies for Traumatic Brain Injuries (TBI) Caused by Negligence" »

Florida Statute 768.0415 instructs that unmarried dependents of parents sustaining significant permanent injury through the negligence of others shall be compensated for damages including loss of services, comfort, companionship, and society.

The compensation for damages under this statute is not limited to minors. It includes adult dependents.

Continue reading "Negligent Parties Liable Under Florida Law to Dependents for Significant Permanent Injuries To Parents" »