Florida Injury Attorney Blawg

Prior to 1990, Florida employers had a common law qualified privilege to discuss current and former employees with prospective employers. The leading case was Nadar v. Galbreath, 462 So.2d 803 (Fla. 1984). For an employee to overcome the privilege, and thus hold the employer liable for defamation or intentional interference with a business relationship, proof was required that the false information was made with express malice - not to be confused with "actual malice," the standard applicable to claims against public officials or public figures - described as "where the primary motive for the statement is shown to be an intention to injure the plaintiff." Nadar, 462 @ 806 (citing Loeb v. Geronemus, 66 So.2d 241 (Fla. 1953). This common law standard needed to be shown by a preponderance of the evidence.

Florida Statute 768.095 appears to have superseded the common law. (The case law handed down since the enactment of 768.095 is somewhat confusing on the interplay, if any, between the statute and the common law.)

Continue reading "Florida Law Regarding Employer Liability for Disclosing False Information About Employees" »

The Republican Establishment has chosen Willard Mitt Romney to lead its people to The Promised Land. It points to his success in making large sums of money as the primary qualifying factor for the selection.

G-d chose Moses to lead the Jews to their Promised Land. Interestingly, what persuaded G-d to select Moses was his compassion more than his accomplishments.

The Book of Exodus tells us that Moses was rescued from the Nile River as an infant and raised by the Pharoah's daughter. One day he witnessed an Egyptian beating a Jew. He killed the Egyptian. Later he intervened in a fight between two Jews, the circumstances of which forced him to flee Egypt. While in the desert, he saved the seven daughters of Jethro from evil shepherds.

These acts showed perseverance, courage and fortitude. This was not enough for G-d.

Continue reading "Mitt's No Moses" »

Most freedom-loving Americans believe that intelligence, skill, character, and temperament are the most important qualities of a judge. Not so Florida Governor Rick Scott. Ideology is what matters most to this governor ... right-wing ideology at that.

In a blatant effort to subvert a free-acting judiciary, Governor Scott is seeking to change the way judge's are selected in Florida. He is pushing legislation that will remove the selection process from the hands of independent groups and give it to the governor. Shocking.

Reproduced below is a Letter to the Editor published in today's Miami Herald which touches nicely on the subject:
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Keep Florida's judiciary independent
 
There's a challenge afoot this legislative session for Florida Bar Association President Scott G. Hawkins and the Bar's board members: To protect Florida's justice system from a force that, if left unchecked, would eviscerate it.

Gov. Rick Scott plans to completely overtake Judicial Nominating Committee appointments. The governor has stated he would like to move all JNC appointments to the Office of the Governor, rejecting the time-honored and traditional input of the Florida Bar. This would amount to the biggest judicial power grab in Florida's history.

Don't be fooled by the promises and rhetoric: This is not about the philosophical belief that Florida would have a stronger, more independent judiciary if picked exclusively by the executive branch. Gov. Scott has an agenda for "his" judiciary.

Continue reading "Florida Governor Rick Scott Seeks to Pack the Courts " »

Arbitration has become the procedural remedy of choice for the business community in almost every type of civil dispute, from employment matters to nursing home negligence. Arbitration involves the resolution of civil disputes by a panel of costly private arbitrators rather than by government-paid judges and citizen jurors. If for no other reason than that arbitration abrogates the jury system, it is generally looked upon with disfavor by lawyers who represent plaintiffs in civil disputes.

Whether a dispute is arbitrated is a matter of agreement between the parties. Typically, the agreement is made at the outset of the relationship. For example, in the context of nursing homes, the arbitration agreement will be part of the package of admission documents. It is not unusual for the individual to such an agreement to be unaware of the provision or feel like he or she has no choice in the matter, a take-it-or-leave-it proposition.

Courts generally favor arbitration agreements, Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005), but such agreements are subject to state law contract defenses such as unconscionability, Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 264 (Fla. 2d DCA 2004). To succeed in an unconscionability argument, both procedural and substantive unconscionability must be shown. Bland, ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So. 2d 252, 256 (Fla. 2d DCA 2006).

Continue reading "Checklist of Considerations Regarding Florida Abitration Agreements" »

America's civil and criminal justice systems are grounded on the Mosaic Code. The Law, contained in the Torah's Books of Exodus, Leviticus, Numbers, and Deuteronomy, pre-dates Roman laws and is the first to incorporate humanism and the democratic spirit into a written Judicial code. Four centuries before Christ, the Jews devised a legal system based on the dignity of man and individual equality before the law. Individuals accused of crimes were considered innocent until proven guilty, had the right to confront their accusers, were allowed to testify in their own behalf, were not subject to double jeopardy, and could appeal convictions.

A thorough and interesting book containing observations on this subject and many more about Jewish history is Max Dimont's Jews, God & History. Reproduced here are some of Mr. Dimont's insightful observations on the subject of this blog:

• "The Torah was a bold leap into the future, a giant stride ahead of anything existing at that time. Its concept of equality before the law, a law based on the written code, seems to be a Semitic innovation."


• "The Mosaic Code ... was the first truly judicial, written code, and eclipsed previously known laws with its all-encompassing humanism, its passion for justice, its love of democracy."


• "These laws were essentially divided into three categories: those dealing with man's relation to man, those dealing with man's relation to the state, and those dealing with man's relation to God."


• "The Mosaic Code laid down the first principles for a separation of church and state.... In the Mosaic Code the civil authority was independent of the priesthood.... The priesthood was charged with the responsibility of keeping the government within the framework of Mosaic law, just as the United States Supreme Court is not above the federal government but is, nevertheless, charged with the responsibility of keeping it within the framework of the Constitution. Moses also laid the foundation for another separation, which has since become indispensable to any democracy. He created an independent judiciary."


• "There is a curious resemblence between the philosophic outlook of American constitutional law and that of Mosaic law. The federal government has only the powers granted to it by the Constitution. The individual states can do anything not specifically denied to them. In essence, the Mosaic law also established the principle that the Jews could do anything not specifically denied to them. Instead of saying, '"Do such and such a thing,"' the laws of Moses usually say, '"Don't do this or that."' Even where the Mosaic law makes a positive statement, it is often either an amendment to a negative commandment or else hemmed in by a negative admonition, saying, in effect, '"When you do this, then don't do that."' The Ten Commandments, for instance, list only three do's but seven don'ts. The three positive Commandments are: '"I am the Lord thy God"'; observe the Sabbath; and honor your parents. The seven don'ts leave little doubt as to what one is not supposed to do. By fencing in only the negative, Moses left an open field for positive action. This allowed the Jews great flexibility. As long as they did not do anything specifically prohibited, they could, like the individual American states, do anything they wanted to do."

Continue reading "Mosaic Law and American Jurisprudence" »

Corporate America has campaigned for more than 30 years to turn the thinking of average citizens against the civil justice system. Sadly, the campaign has worked, fostering views that are contrary to one of the fundamental principles on which America was founded, namely, that the individual should be able to seek redress from the powerful on equal footing. Reference: We the People.

With the hope of encouraging people to resist Corporate America's dangerous propaganda, this blog gives a primer on the basic issues centering around the Tort Reform debate, or, as I refer to it, Tort Deform.

What is the civil justice system? It is the system individuals and corporations use for suing in civil court to seek compensation for alleged harm caused by other individuals and corporations. The fundamental components of the system are judges, juries, and lawyers for both sides.

What is a "tort"? A tort is harm that a company or a person causes another person either on purpose or because they are negligent. The best known torts involve personal injuries, but can include other types of actions. The Plaintiff is the party who brings the action and is usually seeking monetary compensation.

Aren't these personal injury or "tort" lawsuits flooding the courts? No. Tort cases make up only 6 percent of the entire civil court caseload and they are decreasing. The National Center for State Courts shows a 21 percent decline in tort filings from 1996 to 2005. Richard LaFountain et al., Examining the Work of State Courts: A National Perspective from the Court Statistics Project (National Center for State Courts 2009) at 1, 2. (The Court Statistics Project is a joint project of the Conference of State Court Administrators, the U.S. Department of Justice's Bureau of Justice Statistics and the National Center for State Courts.)

• Only 10 percent of injured Americans ever file a claim for compensation, which includes informal demands and insurance claims. Only two percent file lawsuits. David A. Hyman and Charles Silver, "Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid,"59 Vand. L. Rev. 1085, 1089 (May 2006) (citing Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society 3 (2002));Rand Institute for Civil Justice, Compensation for Accidental Injuries in the United States (1991).


• Academics generally concede there is no evidence that "frivolous" lawsuits are a problem.


• In 1999, the Institute of Medicine (IOM) concluded that between 44,000 and 98,000 Americans die each year (and 300,000 are injured) due to avoidable medical errors in hospitals alone. Yet eight times as many patients are injured as ever file a claim; 16 times as many suffer injuries as receive any compensation. The Harvard School of Public Health closely examined 1,452 closed claims and concluded that "[p]ortraits of a malpractice system that is stricken with frivolous litigation are overblown." David M. Studdert et al., "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation," New England Journal of Medicine, May 11, 2006. The study found that most injuries resulting in claims were caused by medical error, and that those that weren't were, nevertheless, not "frivolous" claims.


• In 2005, tort jury and bench trials together constituted 1.3 percent of all general civil dispositions in 79 jurisdictions reporting and 3.5 percent of all tort dispositions in 104 jurisdictions reporting.

What is "tort reform"? This term refers to laws that benefit the corporate sector. These laws make it more difficult for injured people to sue in civil court, or limit the power of judges and juries to make decisions in tort cases. (See these examples: 2010 Florida Legislature Further Curtails the Rights of Medical Malpractice Victims; Vehicle Owners - Other Than Rental Agencies - Vicariously Liable Under Florida Law.)

Continue reading "South Florida Trial Lawyer - Tort Reform ("Deform) & What It Means" »

Magnetic resonance imaging (MRI) is a test that uses a magnetic field and pulses of radio wave energy to make pictures of organs and structures inside the body. In many cases MRI gives different information about structures in the body than can be seen with an X-ray, ultrasound, or computed tomography (CT) scan. MRI also may show problems that cannot be seen with other imaging methods. It is the standard diagnostic test for viewing the intervertebral discs.

In some instances, contrast material is used to enhance the images made by the MRI. Some of those imaging agents contain the chemical gandolinium. U.S. government regulators have begun warning doctors that this class of injectable can cause a rare and sometimes fatal condition in patients with kidney disease. The Food and Drug Administration is adding its strongest warning label to the imaging agents that contain gandolinium.

If contrast material is used, the technologist will put it in through an intravenous (IV) line in your arm. The material may be given over 1 to 2 minutes.

Continue reading "Product Liability - Dangerous Side Effects From MRI Imaging Drug (Gandolinium)" »

The subject of this blog dovetails nicely with the current Wall Street protests over corporate greed.

It was recently learned that State Farm Insurance raised between $2.4 and $4 million for the 2004 election campaign of an Illinois judge. It was the most expensive race in U.S. judicial history.

The judge, Lloyd Karmeier, won the race to become a member of the Illinois Supreme Court, the highest court in the state. From that perch, he voted to overturn a $1 billion judgment that had been entered against State Farm.*

Losing its case at the trial level, before an impartial jury, it appears that State Farm sought an extra-judicial remedy, albeit cloaked in the garments of a sitting judge.

Continue reading "Corporate Greed - State Farm Exposed for Orchestrating Massive Donation to Supreme Court Justice" »

Follow this link, Ros-Lehtinen rethinks, to read my letter to the editor published by the Miami Herald on September 29, 2011.

I wrote the letter in response to an article published by The Herald on September 25, complimenting Rep. Ros-Lehtinen for co-sponsoring the Respect of Marriage Act, a law designed to extend rights to gays and lesbians. Instead of being duly impressed with her position, which I support, I was disappointed that she was receiving gushing recognition for coming to a decision, at age 59, that any fair minded person would understand from the earliest days of their ability to reason and consider. By the age of 5 years, each of my two children understood what it has taken Rep. Ros-Lehtinen 59 years to appreciate.

Continue reading "Attorney Jeffrey P. Gale's Letter to the Editor (Miami Herald) Re Rep. Ileana Ros-Lehtinen/Respect of Marriage Act" »

The legal principle which binds a litigant to the path chosen to right a wrong is known as election of remedies. The principle should not be confused with the procedure of seeking alternative remedies within the same forum, best illustrated by a multi-count complaint asserting various legal theories of recovery.

Although not a common element in most cases, the election of remedies issue does arise with some frequency in connection with workers' compensation and personal injury cases.

For the most part, it is clear when a worker has been injured on the job. Falling from a roof and being struck by a forklift are clear examples of work related accidents. Under Chapter 440 of Florida's Statutes, Section 440.11 in particular, most employers with four or more employees will have what is called workers' compensation immunity for these types of accidents. What this means is that most employees are limited to the remedies available under Florida's workers' compensation system.

Continue reading "Florida Election of Remedies Law in Context of Workers' Compensation & Personal Injury" »

Sovereign Immunity derives from the medieval principle that "The King can do no wrong." Prior to 1975, its application in Florida meant that the government could not be sued for damages caused by its wrongdoing. In that year, the Florida Legislature enacted Florida Statute 768.28, which allowed actions against the state or any of its agencies or subdivisions (e.g., cities, municipalities, counties). However, the statute capped the amount that could be recovered, regardless of the actual damages in a case, and it allowed to stand absolute immunity for planning level decisions.

From the statute's original enactment until July 1, 2011, a period of 36 years, the damage caps stood at $100,000 per individual, $200,000 total per claim. For example, if 4 people were catastrophically injured by the negligence of a government employee, the most any one individual could recover was $100,000, leaving the other 3 to share the remaining $100,000. (The $200,000 could also be split equally among the four or any other way, so long as any one victime did not receive more than $100,000.)

In 2009, the Florida Legislature passed a bill upping the damage caps to $200,000/$300,000 effective July 1, 2011. The increase, although far from adequate in many cases, was a long time coming and a positive step.

The statute has left untouched absolute sovereign immunity for the discretionary, judgmental, planning-level decisions of a governmental entity. Examples include decisions concerning the initial plan, road alignment, traffic control device installation, the improvement of roads and intersections, and defects in the construction of a road, median, and intersection.

However, once the sovereign becomes aware of a hazard so serious and so inconspicuous to a foreseeable plaintiff that it virtually constitutes a trap, the planning level absolute sovereign immunity is waived, bringing into play the damage caps discussed above.

Countless wars have been fought over whether planning level immunity applies or has been waived.

Continue reading "Sovereign Immunity and Florida Personal Injury Law" »

I have blogged here in the past that the 2011 Republican-controlled Florida Legislature seemed bound and determined to gut one of the state's most important laws at holding vehicle manufacturers accountable for producing defective products. Although some within the legislature may have had this outcome as a goal, reasonable minds prevailed in the 2011 legislative session to the extent that the legislative body's modifications did not eviscerate the law as many within the civil justice community had feared.

The principle of law under discussion is the crashworthiness doctrine. It stands for the proposition that vehicle manufacturers can be liable for harm caused by unsafe vehicles, even if the vehicle was put to the test by another negligent party. Kidron v. Carmona, 665 So. 2d 289 (Fla. 3rd DCA 1995) (following Larson v. General Motors, 391 F. 2d 495 (8th Cir. 1968)).

The principle was later bolstered by the holding in D'Amario v. Ford, 806 So. 2d 424 (Fla. 2001), which limited the use of comparative fault in crashworthiness cases.

In D'Amario a minor was the passenger in a vehicle that struck a tree. A fire began that ended in an explosion, causing the minor to lose three limbs and suffering burns to much of his body. The fire resulted from a defective relay switch manufactured by Ford.

The minor and his mother sued Ford for the damages resulting from the defective switch. They did not seek to recover compensation from Ford for injuries from striking the tree.

At trial, Ford sought to introduce evidence as to the cause of the initial accident, which was that another minor was intoxicated and negligently drove the vehicle into the tree. The plaintiffs (mother and son) argued that this evidence was irrelevant to the claim for damages caused by the defective switch. The trial court admitted the evidence, meaning that it allowed the jury to hear the evidence. The jury returned a verdict for Ford.

The case was appealed and made its way to the Florida Supreme Court. The court considered cases from other states and concluded that the majority view in the nation was that such impact evidence was relevant. Nevertheless, the Florida Supreme Court adopted the minority view, ruling in favor of the catastrophically injured minor and his mother.

Before D'Amario, in crashworthiness cases jurors were allowed to hear evidence of the driver's fault and apportion damages against the driver. This tended to direct the focus of responsibility onto the negligent driver and take it off the manufacturer whose defective product caused the enhanced injury. D'Amario eliminated the chance of such evidence distracting, confusing, or angering juries.

Not surprisingly, automobile manufacturers have been trying for ten years to reverse D'Amario. Many thought their goal would be accomplished in the 2011 legislative session. Although a measure was proposed that would have satisfied the manufacturers, amendments filed on the Senate Floor by Senator David Simmons (R) and passed by both chambers of the Legislature prevented the crashworthiness doctrine from being eliminated altogether in Florida. The bill that passed, which does modify D'Amario, revised Florida Statute 768.81.

The revised 768.81(3)(b) provides as follows:

In a products liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them. The jury shall be appropriately instructed by the trial judge on the apportionment of fault in products liability actions where there are allegations that the injuries received by the claimant in an accident were enhanced by a defective product. The rules of evidence apply to these actions.

Continue reading "Florida Legislature Leaves Intact Much of the Crashworthiness (D'Amario) Doctrine" »

Florida'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).

Continue reading "Florida's Dangerous Instrumentality Doctrine and Motor Vehicles" »

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.

Continue reading "President Obama Signs National Food Safety Bill" »

Job one of lawyers who represent individuals who have suffered personal injuries and/or property damage losses is to maximize the client's recovery. The conventional thinking is that the recovery in every case is limited by the measure of actual damages, in other words, the recovery cannot exceed the loss.

Surprisingly, this is a rule that can be broken ... with a proviso.

In Despointes v. Florida Power Corporation, 2 So.3d 360 (2nd DCA 2008), a person who was paid $224,567.66 by her own insurance company, CIGNA, for fire damage, was able to pursue a claim for damages, through her estate, against a third party for the amount already recovered from the insurance company.

The device used for this opportunity was an assignment from CIGNA of its subrogation/reimbursement right.

The CIGNA policy provided for the right of subrogation against any third party recovery. This right authorized CIGNA to pursue a claim against the third party responsible for causing the house fire for the amount it paid to its insured. Instead of pursuing the claim, it assigned the right to its insured.

Thereafter, the insured sued the third party, Intermatic, alleging that the fire had been caused by a defective surge protector. The Defendant argued that the insured was not allowed to recover the money she had already received.

The trial court agreed. The Second District Court of Appeal did not.

Continue reading "Florida Law: Maximize Recovery by Obtaining Assignment of Subrogation Rights" »