Recently in Personal Injury Category

September 18, 2014

Florida Personal Injury Law: Non-Delegable Duty Creates Joint & Several Liability

joint & several.jpgBy amending §768.81 Florida Statues, the Florida Legislature eliminated, effective 2006, the application of joint and several liability in most personal injury cases. Under the joint and several doctrine, in cases involving multiple defendants each negligent defendant was wholly responsible financially for the negligence of every other defendant. This concept especially benefited plaintiffs where one or more negligent defendant did not have the financial means to satisfy its share of the damages awarded, while one or more other defendants had the means to satisfy the entire award.

The doctrine was replaced by the comparative fault doctrine. Under this doctrine, each defendant's share of liability was limited to its allocated percentage of fault. For example, if each of three defendants was found one-third at fault, the most any one of the three would be responsible for paying is one-third of the total damage award. If the total damage award was $1,000,000, the most any one of the three defendants would have to pay is $333,333.33. If the others could not afford to pay their shares, the injured Plaintiff would simply not be fully compensated. In comparison, under the joint and several doctrine each one of the three would be liable for the full measure of damages. If, for example, one of the defendants was the Coca-Cola company and the other two were poor deadbeats without adequate insurance coverage, Coca-Cola would be on the hook for the full amount. Coca-Cola would have a right to go after the other defendants to recoup some of the money it paid.

By scuttling joint and several liability, the Republican Legislature, with the full backing of then Governor Jeb Bush, shifted the burden of loss from insurance companies and large corporations onto injured victims.

While joint and several liability does not apply in most post-April, 2006 personal injury cases, it remains a viable legal doctrine in cases where an independent contractor has breached a non-delegable duty. The most common scenario involves a property owner who hires one or more independent contractors to perform maintenance and security in and around a property, like a shopping mall. If a person rightfully on the property is injured by the negligent performance by the independent contractor, the independent contractor and the property owner are jointly and severally liable. This has long been the law in Florida:

"The law imposes on hotels, apartments, innkeepers, etc., the duty to keep their buildings, premises and appliances in a condition reasonably safe for the use of their guests, or at least those parts of the buildings and premises to which the guest are invited and may reasonably be expected to use. The duty of maintaining safe premises cannot be delegated to another."
Goldin v. Lipkind, 49 So.2d 539, 541 (Fla. 1950) (emphasis added). Moreover, this is a well-established principle of law recognized throughout the country. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 511-12 (5th ed. 1984).

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August 13, 2014

Will Jeb Bush/Right-Wing Extremism be the Straw that Breaks the Back of Florida's Workers' Compensation System?

scales of justice.jpgInjured workers have experienced a steady erosion of their rights under Florida's workers' compensation system since its inception in 1935. Some periods have seen greater losses than others. None, however, were as ugly as the Jeb Bush years, when he served as the 43rd Governor of Florida from 1999 to 2007, along with a Republican-controlled House and Senate. Together, they happily gutted the system.

After years of injustice and suffering, the chickens may be coming home to roost.

Before Florida had a workers' compensation system, in order for an injured worker to receive lost wages and medical benefits, he or she was burdened with proving employer-fault caused the accident. This was a time-consuming and always difficult burden, made more tenuous by legal principles that barred any recovery if the worker - contributory fault - or a fellow servant were even slightly at fault, or the employee accepted the dangers of hazardous employment. This system, a form of common law negligence, saw most injured workers go without ever receiving benefits. The system also proved unwieldy to employers, who were regularly tied up in lawsuits and could not reasonably predict their exposure.

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July 13, 2014

Florida Personal Injury Law: Alcohol Use as Evidence of Negligence

drunk.jpgThere is a reason why the following inquiry is a standard interrogatory for personal injury cases in the Florida Rules of Civil Procedure:

Did you consume any alcoholic beverages or take any drugs or medications within twelve hours before the time of the incident described in the complaint? If so, state the type and amount of alcoholic beverage, drugs or medication which were consumed and when and where you consumed them.
While excessive alcohol consumption can support a claim for punitive damages -- see this blog:, Special Considerations in Florida Motor Vehicle Crash Cases Involving Alcohol (DUI) -- evidence of alcohol use, even short of "voluntary intoxication," can be relevant to the issue of simple negligence. It's application is not limited to vehicle accident cases.

The Florida Supreme Court decided long ago that evidence of a person being under the influence of intoxicants at the time of an automobile collision is admissible, on the theory that a driver so exhilarated is likely to be abnormally reckless. Taylor v. State, 46 So.2d 725 (Fla., 1950). It is valuable and useful to corroborate or render more likely, evidence that is doubtful or disputed. Smith v. State, 65 So.2d 303 (Fla., 1953).

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July 3, 2014

Florida Personal Injury Law: Duty Opens the Courthouse Doors

Every personal injury plaintiff must plead and prove that the defendant owed and breached a duty of care and that the breach proximately (i.e., foreseeably and substantially) contributed to the specific injury suffered. These are the prima facie elements of a personal injury case.

Whether a duty exists is a matter of law for the court (judge) to determine rather than a factual question for the jury. The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader "zone of risk" that poses a general threat of harm to others. See Kaisner v. Kolb, 543 So.2d 732, 735 (Fla. 1989) (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla. 1983)). It is a minimal threshold legal requirement for opening the courthouse doors. See McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992) (In footnote number 1, the court qualified and explained the concept as follows: "Of course, to determine this legal question the court must make some inquiry into the factual allegations. The objective, however, is not to resolve the issues of comparative negligence or other specific factual matters relevant to proximate causation, but to determine whether a foreseeable, general zone of risk was created by the defendant's conduct.")

On the other hand, the proximate causation element is concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred. Id. at 502. This is a "much more specific factual requirement that must be proved to win the case once the courthouse doors are open." Id. at 502. Generally, issues of breach, proximate cause and foreseeability as related to proximate cause are fact questions for the jury, not resolved by summary judgment. McCain and See Springtree Properties, Inc. v. Hammond, 692 So.2d 164, 167 (Fla.1997). Importantly, it is immaterial that the defendant could not foresee the precise manner in which the injury occurred or its exact extent. Restatement (Second) of Torts § 435 (1965). In such instances, the true extent of the liability would remain questions for the jury to decide. McCain at 503.

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June 10, 2014

Breaching a Personal Injury Confidential Settlement Agreement Can Have Serious Consequences

handshake2.jpgIn a decision demonstrating strong support of confidentiality provisions, even at the expense of family dynamics, in Gulliver Schools, Inc. v. Snay, the Third District Court of Appeal punished a father (the Plaintiff) for informing his college-age daughter that a settlement was reached with the Defendant in an emotional case.

When his employment contract was not renewed, the Plaintiff sued the Defendant for age discrimination and retaliation under the Florida Civil Rights Act. Florida Statute Sections 760.01-760.11 and 509.092. Within days of the settlement, which included a confidentiality provision, the Plaintiff's daughter posted the following message on her Facebook page.

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.
As a result, the Defendant refused to pay the Plaintiff a large portion of the money promised under the settlement agreement. Plaintiff's subsequent Motion to Enforce was granted by the trial court. However, the trial court order was reversed on appeal.

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March 9, 2014

Florida Personal Injury Law: Pedestrian Struck by Motor Vehicle

city-zone-945513-m.jpgA pedestrian struck and injured by a motor vehicle may be covered by some, all or none of the following types of motor vehicle insurance:

Personal Injury Protection (PIP). PIP is no-fault insurance, meaning that covered individuals receive the benefit without regard to fault. Put another way, at-fault individuals may recover under this type of insurance. This coverage does not compensate for non-economic damages like pain and suffering, and the limit for what it does cover -- medical and lost wages -- is typically capped at $10,000 combined. It is also subject to deductibles and does not pay 100% of the medical benefits or lost wages. It is not always easy figuring out whose insurance coverage applies.

  • If the pedestrian owns a vehicle and has PIP coverage on the vehicle, a requirement under Florida law for operational vehicles registered in the state, the pedestrian's own policy applies. F.S. 627.736(4)(e)1.

  • If the pedestrian does not own a vehicle that must be insured, but resides with a relative who does, the resident relative's policy provides coverage. F.S. 627.736(4)(e)3. (If there is more than one resident relative with coverage, each carrier must pay its pro-rata share. Regardless of the number of carriers, PIP coverage is limited to $10,000 unless a policy has a higher coverage limit. F.S. 627.736(f)).

  • If neither the pedestrian nor a resident relative has PIP, the at-fault vehicle owner's and/or operator's carrier provides coverage. F.S. 627.736(4)(e)4.
CAVEAT: None of these PIP provisions apply if the accident occurs outside of Florida.

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February 23, 2014

The Pre-Suit Settlement Demand Package in Florida Personal Injury Cases

truck2.jpgInsurance companies operating in Florida are under a legal duty to adjust claims in good faith to prevent their insureds from being subject to excess judgments (a court judgment in excess of a policy's liability limit). A carrier that fails to act in good faith may be forced to satisfy an excess judgment as punishment for breaching the duty.

Most individuals do not maintain adequate policy limits to cover the full consequences of a serious accident. For example, the minimum and least expensive limit for motor vehicle bodily injury (BI) insurance is $10,000 per person/$20,000 per accident. For those individuals who even carry BI coverage at all -- it is not mandatory in Florida -- this is the limit level most frequently chosen. BI insurance is expected to cover past and future medical expenses, past and future lost income, property damage, and non-economic damages such as pain and suffering. Nor do most individuals have enough private money to cover damages above policy limits. In cases involving serious injuries, $10,000 does not go far.

Liability insurance companies have an affirmative duty to gather damages information. They cannot sit idle when information is at their disposal. Evidence such as vehicle property damage and the police crash report, often indicators of the seriousness of a crash and fault, are usually readily available. This information, alone, can be enough for the carrier to make the decision to tender policy limits. For example, in a case involving a $10,000 policy, evidence of a high speed crash resulting in significant property damage should be enough for the carrier to tender.

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December 7, 2013

Medicare Set Asides in Personal Injury Cases

dollars.jpgThe Medicare Secondary Payer Act of 1980 ("MSP") -- Link to the MSP Manual -- was enacted to limit the financial burden on taxpayers for the medical expenses of Medicare beneficiaries whose medical needs are the primary responsibility of some other source.

Until 2010, the MSP's main focus was on workers' compensation cases. (Florida's workers' compensation laws are contained in Chapter 440 of Florida's statutes.) Injured workers who receive a lump sum settlement in a workers' compensation case are required to pay all or a portion of those proceeds for the medical care related to their job accident injuries before Medicare will pay penny-one. While third-party civil liability plaintiffs have always been expected to reimburse Medicare for benefits paid in the past, the same regulations with regard to future coverage was never applied. In other words, Medicare was not expecting these Medicare beneficiaries to cover the expenses of future medical care resulting from their accidents from settlement proceeds.

For some time, The Centers for Medicare and Medicaid Services ("CMS"), the federal agency responsible for administering Medicare and Medicaid (as well as a host of other federal programs ) within the Department of Health and Human Services, has been hinting that the Medicare Secondary Payer Act applied to future medical services in third party liability cases, pointing out that the statutory language is the same for workers' compensation and liability cases. With regard to liability cases, Barbara Wright of CMS stated: "So where future medicals are a consideration in arriving at the settlement, appropriate arrangements should be made for appropriate exhaustion of the settlement before Medicare is billed for related services."

One consequence of this new thinking is that insurers and self-insured entities are currently required to report claims made by Medicare-eligible claimant/plaintiffs to the Centers for Medicare and Medicaid Services ("CMS"). This suggests that "appropriate exhaustion of the settlement before Medicare is billed for related services" is required "before Medicare is billed for related services" in personal injury cases. Interestingly, as of the posting of this blog, Medicare has not taken the next step of denying the payment of bills where the care is related to injuries sustained in an accident for which future medicals were considered in arriving at a settlement.

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October 13, 2013

Medicaid Lien Law in Florida Personal Injury Cases Appears to be Resolved

us supreme court.jpgMedicaid will sometimes pay the medical expenses incurred by a person injured in an accident, albeit at rates substantially below the medical provider's usual and customary charges. When Medicaid does pay, beneficiaries must reimburse Medicaid from third party payments for medical care. See section 409.910(11)(f), Florida Statutes (2013). The goal of the statute is to protect tax dollars while preventing Medicaid beneficiaries from receiving a windfall. Tristani v. Richman, 652 F.3d 360, 370, at 372 (3d Cir. 2011).

In Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006), the U.S. Supreme Court confirmed that the Medicaid lien was limited to payments for medical care. Id. at 284. At issue in Ahlborn was a North Carolina Medicaid lien statute similar to Florida's.

In spite of Ahlborn, AHCA, which administers Florida's Medicaid system, insisted that its payments could be recovered from the entire settlement without regard to the various other damage elements typically constituting the basis of a settlement. (In addition to incurred medical expenses, personal injury cases usually also involve claims for lost wages, future medical expenses, mental anguish, and pain. According to Ahlborn, Medicaid's lien only attaches to the payments made for medical care.) Moreover, ACHA refused to negotiate or even concede that any court had a say in the matter. AHCA's brazenness was challenged.

In Roberts v. Albertson's Inc., 37 Fla. L. Weekly D2515 (Fla. 4th DCA Oct. 24, 2012), reh'g and reh'g en banc denied, modified on reh'g, No. 4D10-2313 (Fla. 4th DCA June 26, 2013), the Fourth District Court of Appeal issued a decision authorizing the trial court to conduct a hearing to determine the Medicaid lien. The court could consider evidence of payments for such other damages as lost wages, pain, and mental anguish, as well as determine how much less the case settled for than its full value. (Cases are often settled for less than full actual damages due to a variety of factors including comparative fault and limited insurance coverage.)

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September 21, 2013

Florida Workers' Compensation Liens -- The "Manfredo" Formula Made Simple

law books.jpgFlorida employees injured at work may be able to bring a valid claim for damages against a third party. For purposes of this blog, a third party means an entity, including an individual, other than the employer or other entity entitled to workers' compensation immunity. A third party case may exist if the work related injury was caused by the negligence or intentional act of the non-exempt entity. A simple example is where a deliveryman is injured in a motor vehicle accident by a negligent non-exempt third party. Because the accident happened in the course and scope of the employment, the worker would is eligible to recover both workers' compensation benefits and personal injury damages.

Where workers' compensation benefits have been furnished, Section 440.39 Florida Statutes creates a lien against the compensation the injured worker receives from a third party. In other words, the employer or its insurance carrier have the statutory right to be repaid from the money paid to the injured worker by the third party. "The lien statute has a straightforward and appropriate objective--the prevention of double recoveries by injured employees who have recovered statutory benefits under the workers' compensation law but also have claims against responsible parties other than the employer. Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1108 (Fla.2006). The statute allows the employer or insurer to be subrogated to the proceeds of such third-party tort recoveries to the extent of the amounts paid or to be paid by the employer or insurer." Luscomb v. Liberty Mut. Ins. Co., 967 So.2d 379 (Fla. 3rd DCA 2007). Importantly, the workers' compensation lien is capped at the claimant's net recovery. City of Hollywood v. Lombardi, 770 So.2d 1196, 1202 (Fla.2000), and Aetna Insurance Co. v. Norman, 468 So.2d 226, 228 (Fla.1985).

The lien can be waived by the employer or carrier. However, this will typically come at the cost of the workers' compensation case settling for less than if the lien remained in place.

When the lien isn't waived, how is the claimant's net recovery determined?

The formula, as set forth in the statute, can be difficult to comprehend. Extensive litigation has ensued over its meaning and application, with many appellate decisions attempting to explain the issues. In my opinion, the best play to start to understand the formula is the Florida Supreme Court case Manfredo v. Employer's Casualty Insurance Company, 560 So.2d 1162 (Fla 1990).

This is the so-called "Manfredo Formula": Third party settlement/recovery amount less (-) attorney fees and costs divided by (/) full case value = the % value of the wc lien.

Here's the formula by way of a hypothetical example:


  1. WC lien (medical, indemnity, settlement, etc.): $ 100,000

  2. $ 250,000 third party settlement less fees (40%) and costs ($ 35,000) = $ 135,000

  3. Full case value: $ 1,000,000. (The case was for less due to tough liability, coverage limits, etc.)

  4. $ 135,000 divided by $ 1,000,000 = 13.5%

  5. 13.5% of $ 100,000 = $ 13,500.

Hence, the workers' compensation employer/carrier recovers $ 13,500, 13.5%, of its $100,000 lien from the $250,000 personal injury recovery.

Resolving the WC lien is not always this simple. In the Aetna case, the Florida Supreme Court noted some complicating factors. In speaking of 440.39, the court wrote:

This very logical process, and the statute describing it, becomes more complicated because of the broad array of circumstances that may occur with the third-party claims and recoveries. They may be brought by the employee, employer, or insurer (based on the one-year windows described above), and the attorneys prosecuting the claims may therefore be compensated by the employee, employer, or insurer. The employee may have settled all the workers' compensation medical and indemnity claims for a lump sum (as here), or the benefits may continue to be payable into the future. The third-party recoveries may exceed the total benefits paid and to be paid by the employer or its insurer, or they may be less than that total (as here). There may be multiple third-party claims and recoveries, and therefore multiple computations of the lien, and the recoveries may occur at different times. A particular recovery may be less than the "full value" of the third-party claim for a variety of reasons: other third-party tortfeasors may be responsible for some of the damages, the employee may have been comparatively negligent, or the plaintiff and counsel for the plaintiff may discount the value of the claim in order to avoid the risk and delay inherent in any lawsuit.

Continue reading "Florida Workers' Compensation Liens -- The "Manfredo" Formula Made Simple" »

August 1, 2013

Tax Considerations in Florida Personal Injury Cases

dollars.jpgFew personal injury lawyers have degrees in tax law or accounting. While having advanced knowledge of tax law is not a requisite to the proper handling of a personal injury case, having a basic understanding of potential tax consequences is. To perform up to par, the personal injury lawyer must know which elements of a settlement may be taxable and address the issues accordingly. Anything less falls below the professional standard of care and may have serious negative consequences.

CAVEAT: We do not give tax advice to our clients and we are not giving it in this blog. The information contained in this blog should be used for guideline purposes only rather than as definitive tax advice. For definitive advice on these issues, consult a tax lawyer or accountant.

There are numerous areas in personal injury settlements with potential income tax consequences: 1) punitive damages; 2) damages for emotional distress; 3) the consideration paid for a confidentiality agreement; (4) money paid to compensate for lost income; and (5) money paid to compensate for medical expenses.

A starting point for the legal authority on this topic is Section 104 of the Internal Revenue Code, which reads as follows:

§ 104. Compensation for injuries or sickness.

(a) In general. Except in the case of amounts attributable to (and not in excess of) deductions allowed under section 213 [IRC Sec. 213] (relating to medical, etc., expenses) for any prior taxable year, gross income does not include--

(1) amounts received under workmen's compensation acts as compensation for personal injuries or sickness;

(2) the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account
of personal physical injuries or physical sickness;

(3) amounts received through accident or health insurance (or through an arrangement having the effect of accident or health insurance) for personal injuries or sickness (other than amounts received by an employee, to the extent such amounts (A) are attributable to
contributions by the employer which were not includible in the gross income of the employee, or (B) are paid by the employer);

(4) amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the
Coast and Geodetic Survey or the Public Health Service, or as a disability annuity payable under the provisions of section 808 of the Foreign Service Act of 1980 [22 USCS
§ 4048]; and

(5) amounts received by an individual as disability income attributable to injuries incurred as a direct result of a terroristic or military action (as defined in section 692(c)(2) [IRC Sec. 692(c)(2)]).

If the IRS decides to scrutinize a settlement for tax consequences, the taxpayer bears the burden of proving what aspects of a personal injury settlement are non-taxable. See Internal Revenue v. Schleier, 515 U.S. 323 (1995). Relevant evidence may include the pleadings, discovery in the case, and the settlement agreement. While it may be good practice for the Plaintiff to have an allocated agreement, meaning one in which the settlement proceeds are broken into component parts for the various damage elements (e.g., personal injuries; economic losses (wages and medical), punitive damages), the exercise is not dispositive of the issue. See Bagley v. Commissioner of Internal Revenue, 121 F.3d 393 (8th Cir. 1997) (The court held: "when assessing the tax implications of a settlement agreement, courts should neither engage in speculation nor blind themselves to a settlement's realities") and Delaney v. Commissioner, 99 F.3d 20, 23-24 (1st Cir. 1996) (court must look beyond language of settlement to determine 'in lieu of what' for damages paid").

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July 28, 2013

Florida Construction Site Sub Contractors are Liable for Personal Injuries Caused by Gross Negligence

worker2.jpgPre-Jeb Bush, Florida construction subcontractors were held liable in tort for damages caused by their negligence when the party harmed was an employee of a subcontractor with whom legal vertical privity was not shared. This powerful threat caused subcontractors to pay heightened attention to workplace safety. When subcontractors fell short of being reasonably safe and the result was bodily injury, they paid the cost.

This did not sit well with Governor Bush and his Republican cohorts who controlled Florida's legislature. Profits were at stake. Action was taken to eliminate this bothersome "loophole." Legislation was passed granting "horizontal immunity" to construction subcontractors without any contractual or other legal connection to employees of other companies. See Florida Statute § 440.10(1)(e)(2). See also § 440.11(1)(b)(2).

Thankfully, the immunity is not absolute. § 440.10(1)(e)(2) provides that gross negligence is excepted from the workers' compensation exclusivity provision. To establish gross negligence, a Plaintiff must show (1) a composite of circumstances which, together, constitute a clear and present danger; (2) an awareness of such danger by the subcontractor; and (3) a conscious voluntary act or omission by the subcontractor that is likely to result in injury. See Pyjek v. Valleycrest Landscape Development, Inc., So.3d , 38 FLW D1064 (Fla. 2nd DCA 5-15-2013); and Villalta v. Cornn Int'l, Inc., 109 So. 3d 305 (Fla. 1st DCA 2013) (citing Glaab v. Caudill, 236 So. 2d 180, 185 (Fla. 2d DCA 1970)); cf. Merryman v. Mattheus, 529 So. 2d 727, 729 (Fla. 2d DCA 1988) (explaining that mere knowledge of vulnerability of employee to the possibility of injury is insufficient to amount to gross negligence; there must be a likelihood of injury from employee's vulnerability greater than mere danger, rising to a "clear and present danger").

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July 26, 2013

Gross Negligence as the Path Around Florida's Workers' Compensation Employer Immunity

worker3.jpgMost Florida employees injured at work will be limited to receiving compensation through the state's workers' compensation system as laid out in Chapter 440 of the Florida Statutes. The main reason for this limitation is that employers and fellow-employees are immune from being sued for simple negligence. See F.S. 440.11.

'"[S]imple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons . . .."' Carraway v. Revell, 116 So. 2d 16, 22 (Fla. 1959) (quoting Bridges v. Speer, 79 So. 2d 679, 682 (Fla. 1955)).

Negligence cases and workers' compensation cases are different creatures subject to their own set of laws with regard to compensation for injuries. One of the main differences is that the workers' compensation system does not authorize compensation for pain and suffering. (No Compensation for Pain & Suffering Under Florida's Workers' Compensation System.)

Chapter 440 is a no fault system for the provision of benefits. In theory, at least, the worker's compensation statutes provide a system of compensation for injured workers in which the worker receives the guarantee of rapid compensation for work related injuries. Reality is often a different story. Even when the system works as designed, its shortcomings are many. Read these blogs:

In some instances, injured workers would be more fairly compensated through the civil justice system (negligence) than through the workers' compensation system. Unfortunately, due to a number of factors, including employer and fellow-employee immunity (see above), and a lack of fault (i.e., all but the injured worker are blameless for the accident), injured workers infrequently have the option of seeking a civil rather than a workers' compensation remedy.

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July 2, 2013

Anatomy of a (Florida) Premises Liability/Personal Injury Settlement

Shaking hands.jpgEvery case is different. From accident to injuries, no two cases are ever exactly alike. That said, certain common elements do run through every case. From time to time I will be posting about some of the cases our firm has resolved. The common elements should become apparent in these blogs.

This first example involves a 2011 premises liability accident. Our client slipped in wet paint as she was descending a stairway after work. The property owner had hired an unlicensed and inexperienced recent Cuban immigrant to improve the appearance of the premises for a December holiday party. The painter failed to place warnings signs around the stairwell. It was night time and the outside stairwell was poorly lit. The accident happened in the blink of an eye. There was nothing our client could do to prevent the fall.

Our client, who was wearing flat-soled shoes, landed squarely on her rear-end. She felt immediate pain. Grey paint stained her pants and blouse. She called a co-worker, who assisted her in receiving medical care at a clinic located in her building. Within days she was receiving medical care under the workers' compensation system from doctors hand-picked by the WC insurance carrier.

Because the building owner was not her employer, she was free to pursue a premises liability case against the owner. (See this blog on the law of non-delegable duty and Florida Statute 440.11, Florida's workers' compensation immunity statute.) However, she was unaware of this right, and the workers' compensation attorney she hired did not consider the option. Within months, our client became disenchanted with her workers' compensation attorney and came to our law firm for a consultation.

Our law firm handles workers' compensation and premises liability cases. We quickly recognized that she also had a viable personal injury case. We agreed to handle both cases. This was seven months after the accident.

Our first course of business was to request a slew of records, including medical and employment documents from the workers' compensation insurance carrier. This was quicker, easier, and cheaper than requesting each set of records individually from the various entities. Within thirty days we had the records and were able to review them to get a clearer picture of the cases.

Among other things, we learned that she had undergone a 3-level spine fusion surgery in early 2012. We also learned that, in 2007, she had another, albeit less intrusive, back surgery. The prior surgery turned out to play a prominent role in the premises liability case.

Continue reading "Anatomy of a (Florida) Premises Liability/Personal Injury Settlement" »

June 19, 2013

Reducing Substantial Florida Personal Injury & Workers' Compensation Medicaid Liens -- Our Recent (June, 2013) Court Experience

scales.jpgA few months ago our law firm, working with the Domnick & Shevin, PL law firm, settled a difficult liability case against an insurance agency arising out of a catastrophic motorcycle crash.

Our client had been hospitalized for two months. Medicaid paid his substantial hospital bill. After the case settled, Medicaid came to us demanding to be repaid in full from the settlement proceeds.

We disputed Medicaid's claim to be repaid in full. Instead, we offered the agency a small portion of the settlement to go away. Medicaid rejected the offer. Unwilling to give in, we filed a Motion to Reduce Medicaid Lien with the court that handled the underlying liability case. (We reserved jurisdiction with this court by including language In the Order of Voluntary Dismissal that it retained jurisdiction "to determine liens and reductions of liens based on equity or any other basis, including, but not limited to, Medicaid's interest in any recovery.")

Medicaid countered with a number of arguments. Among them: The court did not have jurisdiction to entertain the dispute. In its view, the Plaintiff was required to file a separate lawsuit, a dec action, against Medicaid; and Florida Statute 409.910 authorized a full recovery.

Continue reading "Reducing Substantial Florida Personal Injury & Workers' Compensation Medicaid Liens -- Our Recent (June, 2013) Court Experience" »