Florida Injury Attorney Blawg

March 24, 2015

Jeffrey P. Gale, P.A. // Florida Personal Injury Law: Inconsistent vs. Inadequate Verdicts

Florida civil trial juries are given wide latitude in resolving factual conflicts. A verdict supported by evidence will be allowed to stand even if other evidence backs a contrary result. However, inconsistent and inadequate verdicts must be modified or reversed.

An “inconsistent” verdict can only be corrected by the jury that has rendered it. Before the jury is excused, the party or parties taking issue with the verdict must ask the court to instruct the jury on the inconsistencies and send it back for further deliberation. If the request is denied, the jury is excused.
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March 18, 2015

Jeffrey P. Gale, P.A. // Florida Personal Injury Law: Zero Verdict for Pain & Suffering [can be] Inadequate as a Matter of Law

by Jeffrey P. Gale, P.A.

In Parrish v. City of Orlando, 53 So.3d 1199 (Fla. 5th DCA 2011), the plaintiff suffered a comminuted proximal humerus fracture in her left shoulder from tripping and falling on an uneven sidewalk. The jury awarded $51,929.02 for past medical expenses, and $130,000 for future medical expenses. However, the jury awarded no past or future noneconomic damages. Because of the zero award, Ms. Parrish moved the trial court post-verdict to order an additur (F.S. 768.74) and/or a new trial (FRCP 1.530). When her motion was denied, she appealed.
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February 20, 2015

Jeffrey P. Gale, P.A. // The Case Against Jeb Bush

by Jeffrey P. Gale, P.A.

Lawyers know best!

Jeb’s running for president of the United States. He has a strong chance of winning.

People who care about the rights of families and individuals should be fearful of a Jeb Bush presidency.

For the next two years, millions of dollars will be spent trying to shape Bush’s image in voters’ minds. Among the themes will be that he, like his brother before him George W. Bush was purported to be, is a compassionate conservative.
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February 16, 2015

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation: Don’t Fall Into PTD Supplemental Payments Trap

by Jeffrey P. Gale, P.A.

Some of Florida’s most severely injured workers may qualify for Permanent Total Disability (PTD) benefits under Section 440.15(1) Florida Statutes. In the absence of a catastrophic injury such as a spinal cord injury involving severe paralysis, amputation of an arm, a hand, a foot, or a leg, severe brain or closed-head injury, or total or industrial blindness, the qualifying standard is that the injured employee is not capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence. (The Florida Legislature, under the control of Jeb Bush, changed the PTD standard from “light duty” to “sedentary employment.” This significant difference keeps many severely injured, deserving workers from qualifying for PTD.)
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February 7, 2015

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Law: Compensability of Accidents During Company Sanctioned Activities

by Jeffrey P. Gale, P.A.

Our firm has been hired by a woman who recently sustained a serious leg injury while walking back to her car from a company sponsored holiday party. The employer has refused to provide workers’ compensation benefits, claiming that the accident did not happen in the course and scope of employment.

While our firm handles both workers’ compensation and premises liability cases, we have agreed to pursue a premises liability action against the employer. (The accident happened on its property.) We believe that the employer and possibly others are responsible for creating an accident-causing dangerous condition.
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January 28, 2015

Jeffrey P. Gale, P.A. // Florida Personal Injury Law: Tenuous Reasoning Allows Admission of Prejudicial Evidence

by Jeffrey P. Gale, P.A.

Getting the injured party fully compensated for the cost of future medical care is a primary concern in most personal injury cases. The Plaintiff has one shot in court to get the jury to award an adequate amount of money to cover the cost of these future medical expenses. Expert and lay evidence is presented on the issue. Once the decision is made, the Plaintiff cannot return to court to seek more money.

It is not uncommon for medical charges to exceed the amount medical providers willingly accept as payment. This is typically the case, for example, for payments made by health insurance and Medicare. Providers often agree with health insurance carriers to accept reduced payments as payment in full. Medicare, on the other hand, has a schedule of allowable charges for every service, usually well below usual and customary charges. A provider that accepts Medicare cannot balance bill the patient.
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January 16, 2015

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation PTD/SSD Offset Vis-a-Vis ACE & AWW

by Jeffrey P. Gale, P.A.

Injured workers who qualify for workers’ compensation permanent total disability benefits (PTD) under Florida Statue 440.15(1), receive 66-2/3% of their average weekly wage (AWW) payable biweekly. Such injured workers may also qualify for Social Security Disability (SSD) monetary benefits payable monthly.

The sum of the two benefits may exceed 100% of an injured worker’s AWW. Is the injured worker allowed to receive more than his AWW? It depends.
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January 14, 2015

Jeffrey P. Gale, P.A. // Florida Motor Vehicle Accident Law: Vicarious Liability and Negligent Entrustment Create Liability

by Jeffrey P. Gale, P.A.

Florida motor vehicle owners beware! You can be held to account for accidents caused by other drivers even when you are nowhere near the crash scene.

Because motor vehicles, like guns, in the wrong hands and used improperly are likely to cause great damage, Florida motor vehicle owners are liable without regard to their own fault for damages caused by the negligent operation of their vehicles. This principle is known as vicarious liability.
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January 14, 2015

Jeffrey P. Gale, P.A. // Florida Personal Injury Law: Medical Lien Cutoff Dates

by Jeffrey P. Gale, P.A.

It is not uncommon in personal injury cases that some medical bills are paid by health insurance and Medicare. These payments should not be ignored by any of the parties to the personal injury case, especially the injured party.

These sources must be repaid from the proceeds of any recovery made in the personal injury case. (Note: PIP, which is mandatory no-fault motor vehicle medical insurance, does not have to be reimbursed.)

While it may be possible to negotiate the repayments, it is, of course, important to know how much is owed. Making this determination can depend on when the payments were made in relationship to when the personal injury case was settled.

This cutoff date varies depending on the entity involved.

HEALTH INSURANCE: The cutoff date depends on whether or not the health insurance policy is subject to ERISA. If it is not, the lien ends at the date of settlement. See Florida’s collateral statute — 768.76. It is fairly well established (although not conclusively — see Coleman v. Blue Cross and Blue Shield of Alabama, Inc. So.3d , 35 FLW D2718 (Fla. 1st. DCA 12-8-2010) for a contrary view) — that the collateral source statute does not apply to ERISA plans. ERISA lien rights are controlled by the subrogation/reimbursement language in the Summary Plan Description (SPD). The SPD should be requested, but in all likelihood its provisions are expansive, allowing for the recovery of all charges related to the accident including those made post-settlement. The plan may provide that it is not responsible for covering post-settlement accident related care.

Because ERISA laws strongly favor the carriers, dealing with ERISA liens is never pleasant. Nevertheless, we drive a hard bargain. We sometimes begin negotiating by making a low ball offer to repay 30% of the lien amount coupled with a request that the insurance carrier agree to cover future accident-related medical expenses. Another approach is to argue for a 40+% discount to account for attorneys fees and costs incurred in securing the recovery.
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January 4, 2015

Jeffrey P. Gale, P.A. // Tort “Reform” (Deform) Endangers Us All

by Jeffrey P. Gale, P.A.

On December 31, 2014, an article published in the Business Section of the Miami Herald, illustrated with chilling clarity the dangers posed by so-called tort reform.

In a nutshell, “tort reform” is the movement supported by right-wing interest groups to block and limit recoveries in personal injury cases. The propaganda disseminated to support these efforts is that most lawsuits are frivolous. Huge sums of money and influence have been invested to make the public believe this nonsense. Sadly, the smear campaign has been successful.

That success spells danger to every member of our society.

The Miami Herald article describes how tort reform has prevented law firms from prosecuting claims against General Motors for accidents caused by defective ignition switches resulting in death and catastrophic injuries. By placing arbitrary caps on the amount of damages that can be awarded for injury or death, rather than allowing a jury to make the determination after considering the evidence, law firms cannot afford to prosecute the claims. Quite simply, the investment in time and money doesn’t make business sense.
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FLORIDA INJURY ATTORNEY BLAWG