Earlier this year our law firm participated in a one week jury trial against a condominium association and a general contractor seeking damages for personal injuries sustained by our client, an elderly woman. The association hired the general contractor to rebuild a wood dock that ran, unimpeded, behind each condo unit in the community alongside a North Miami Beach canal. The first thing the contractor did was remove every other wood plank through the entire length of the dock. It then undertook to replace every plank, beginning in a small section and working east and west in each direction as the work progressed. After the GC had laid down 100 linear feet of new wood, it got into a dispute with the association over payment issues. This resulted in a complete work stoppage in late July of 2012; the GC performed no more work on the site after this point. Our accident happened on November 11, 2012, nearly four months later.
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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.
Florida Personal Injury Law: Zero Verdict for Pain & Suffering [can be] Inadequate as a Matter of Law
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.
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.
Claiming that the plaintiff's injuries are preexisting is a favorite defense tactic. Less responsibility for them. Some injuries, like herniated intervertebral discs and torn or frayed shoulder tendons, are extremely susceptible to this tactic. The defense argument is that the conditions are the result of natural aging and/or prior accidents.
Whenever possible, we like to counter this tactic by presenting prior medical records that are silent with regard to complaints similar to those for which we are seeking compensation. While this strategy may not eliminate entirely the preexisting condition argument, at the very least it shows that any such preexisting condition was aggravated in the accident. Florida law authorizes compensation for aggravation. See C. F. Hamblen, Inc. v. Owens, 172 So. 694 (Fla. 1937) and Florida Standard Jury Instruction 501.5a.
One of our recent cases demonstrates the point. Between September, 2013 and March, 2014, our client was involved in three separate motor vehicle accidents. While the third was the most serious, she sought medical treatment from the same board certified orthopedist for neck and back pain in all three. The doctor ordered cervical and lumbar MRIs to assist in diagnosing her injuries.
In Miranda v. Arizona, the Supreme Court of the United States established a formal warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial situation) before they are interrogated. The court ruled that the person in custody must be informed that he/she has the right to remain silent, and that anything the person says can be used against the person in a court of law. What developed from the ruling is the well-known "Miranda Warning":
"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?"Even though the Miranda Warning only applies to criminal suspects, potential personal injury civil litigants should consider the wisdom of remaining silent until receiving the advice of counsel. The alternative is to risk saying something that will harm the civil case.
Fault and damages are key components of every personal injury case. Limiting both is the primary objective of every liability insurance company. Adjusters, investigators, and lawyers are employed to this end from the very beginning of a reported claim. They will quickly reach out for information from witnesses and victims for the purpose of obtaining incriminating and exculpatory evidence to limit their exposure. What a victim says to these people can be used against him/her in and out of court.
(Read this blog, Limited Application of Florida's Motor Vehicle Accident/Crash Report Privilege, for the confidentiality of statements given to motor vehicle crash investigators.)
By 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).
Will Jeb Bush/Right-Wing Extremism be the Straw that Breaks the Back of Florida's Workers' Compensation System?
Injured 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.
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).
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.
In 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.
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.
Insurance 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.
The 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.
Medicaid 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.)