Florida Injury Attorney Blawg

Experienced personal injury attorneys consider many factors in judging how to manage their cases. While common elements are present from case to case, no two cases are ever completely alike. Both subjective and objective considerations must be taken into account to reach decisions most beneficial to client and attorney alike. The decisions are always consequential. The best personal injury attorneys are the best decision makers.

The elements influence everything from: whether the law firm accepts a case; whether a lawsuit will be filed versus simply trying to resolve the case pre-suit; settlement amount; whether to go to trial; whether the case is declined after it has been accepted by the law firm. Since every case has many moving parts, these and other case management decisions are adjusted frequently.

COMMON CONSIDERATIONS
Insurance coverage. There are many different types of liability insurance to cover for losses caused by negligence. The more common are homeowners, premises liability, bodily injury (BI), and medical malpractice. Most individuals and businesses with sizable unprotected assets have strong liability insurance coverage. A fair percentage with weaker financial positions have coverage, although usually with lower policy limits. Some have no coverage at all. The state of Florida has few requirements for maintaining liability insurance. (One exception is for tractor trailers/18-wheelers. The owner is required to maintain $750,000 in coverage. Unfortunately, laws are often violated, including as to maintaining insurance. Surprisingly, doctors are not required to maintain malpractice insurance.) It is mostly left as a personal choice. No matter how significant the damages, no financial means plus no insurance usually means no recovery. Few lawyers will accept a case under these circumstances. Coverage that is available but limited under the circumstances can influence a lawyer's decision to take the case, or how hard and far to push it.

Negligence. Florida operates a fault-based civil liability system. (The workers' compensation system, covered in Chapter 440 of the Florida Statutes, is not fault-based. Benefits, rather than damages, are recoverable under Chapter 440. These benefits are much different than the damages recoverable under the civil liability system.) Only conduct which falls below a reasonable standard is punished. Fault can be shared by various individuals and entities, including the aggrieved party. This is the concept of comparative fault. Fault can be clear, it can be gross, it can be illusive. These fault considerations (and more) influence the course and outcome of every negligence case. Fault must be proved by the aggrieved party to recover damages (e.g., medical bills, lost wages, pain and suffering).

Injuries. Other factors aside, the worth of any personal injury case is always capped by the extent of the injuries. Put another way, an accident without injuries is an accident without value. Individuals can be compensated for the aggravation of pre-existing injuries. See Florida Standard Jury Instruction 501.5(a). This is a frequent battleground issue. Our firm is in suit for a woman involved in a slip and fall accident. Within months of the accident, she underwent a 3-level spine fusion surgery. Because of a relatively minor back surgery 7 years before and some evidence of normal preexisting degeneration, the Defendant is trying to avoid blame for her injuries. It has even hired a notorious insurance company "whore" doctor to support its position. (Mediation is scheduled.)

Medical Treatment. Medical conditions must be documented to be proven. Receiving consistent care from reputable doctors is an important component. Insurance companies know the players, juries are good at recognizing the good and the bad. Delaying the receipt of care or gaps in care make a difference. While there are reasonable explanations for inconsistent care -- the most common being the inability to pay -- a good personal injury attorney can help make arrangements for timely, steady, and quality care to be provided.

Continue reading "Significant Factors in Establishing the Value of Florida Personal Injury Cases -- No Two Cases are Alike" »

Before Florida adopted a workers' compensation system, in 1935, for workers injured on the job to recover medical expenses and lost wages, or be compensated for non-economic damages, like pain and suffering, they had to prove that the accident resulted from negligence on the part of the employer or some third party. Further complicating their path to recovery was the legal principle known as contributory negligence, which acted as a complete bar to recovering benefits if the injured worker contributed in any way to causing the accident, even by as little as 1%. Few workers were able to overcome these two burdens. And for those few who succeeded, the slow grind of justice often left them broken and destitute.

The new system created an immediate sea change of good for Florida's workers. No longer would they be forced to fight, usually unsuccessfully, for every needed benefit. So long as the injury happened in the course and scope of the employment, medical and lost wage (indemnity) benefits would be furnished, contributory negligence notwithstanding. It was the declared ideal of the system to be self-executing, meaning benefits would come without a fight, and, where there was a dispute, the worker received the benefit of any doubt.

In exchange for this no-fault system, injured workers were forced to give up the right to seek common law civil remedy damages, like pain and suffering, from the employer. (They could still seek these damages from third parties.) In other words, employers were immune from civil lawsuits. See, Florida Statute 440.11 for the present day manifestation of what is commonly referred to as "workers' compensation immunity."

The system was hailed as a fair balance between the needs of injured workers and the rights of employers. Workers would receive the quick delivery of benefits, while employers were protected from jury verdicts. Neither side was entirely satisfied or entirely disappointed with the system, an indication of its success.

While the system was tweaked from time-to-time by legislative action and court decrees, it remained fairly evenly balanced for more than 50 years. That fair balance changed dramatically, in favor of Big Business and insurance companies, under the rule of Governor Jeb Bush (1999-2007), who followed the example set by his big brother George, as governor of Texas . Successive Republican governors -- Charlie Crist and Rick Scott -- and Republican legislators, who controlled both the Florida House of Representatives and the Senate, did nothing to swing the pendulum back towards a fair middle ground. Accordingly, It can be said with full certainty that Florida now has one of the most unjust, if not the single most unjust, workers' compensation systems in the entire United States.

Continue reading "Florida Workers' Compensation a Long Way From Its Roots" »

In every serious personal injury case in Florida, the issue of who will pay the medical providers and how much always arises. Needless to say, providers want to recover as much as they can. Patients, of course, want to pay as little as possible out-of-pocket. How this plays out often depends on who pays the bills.

The different pay sources include health insurance, PIP (motor vehicle insurance), workers' compensation, the patient (self-pay), the tortfeasor (out-of-pocket), bodily injury liability coverage, UM/UIM (motor vehicle insurance), Medicare and Medicaid.

Various laws dictate who pays what and when. In some instances, the only available sources are Medicare or Medicaid (M/M) and bodily injury liability and/or UM/UIM. Since M/M provide some of the lowest reimbursement rates and providers accepting M/M payments are not allowed to balance bill their patients, in terms of raw numbers it is often to the victim's advantage for M/M to pay the providers. While victims will ultimately have to reimburse M/M from their recovery in the personal injury case, the amount of the reimbursement is almost always less than what must be paid to the provider directly from the third party recovery (1st party if from UM/UIM).

Continue reading "Medical Providers Not Required To Bill Medicare and Medicaid in Personal Injury Cases" »

Plaintiffs personal injury lawyers typically have preferences in which medical providers they use to treat and render expert opinions on such issues as causation, disability, and prognosis. This is often due to familiarity and confidence in the provider's competence. It is sometimes dictated by financial considerations.

Many people are uninsured or have inadequate coverage. When care is required that exceeds a person's current ability to pay, many medical providers refuse to accept those people as patients. Some providers, however, are willing to take on the care and treatment of individuals in this predicament with the expectation of receiving payment from the personal injury case. To insure payment upon the favorable resolution of a case, these doctors sometimes require the patient and their personal injury lawyers to sign a letter of protection (LOP), an agreement to pay from the recovery.

This is not unreasonable. People with injuries require care. Most doctors cannot afford to work for nothing.

Continue reading "Excessive/Onerous Discovery Allowed of Florida Personal Injury Treating Doctors" »

Payments made by health insurance and Medicare must be repaid by the beneficiary of the payments from money recovered in the personal injury case for which the medical care was furnished. (Note: PIP, which is no-fault insurance for medical bills in car accidents, does not have to be reimbursed.) In determing how much is owed, an end date beyond which further payments are not reimbursable must be established.

The cutoff date varies depending on the entity involved.

HEALTH INSURANCE: The cutoff date depends on whether the 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. Rather, those 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 recovery of all charges related to the accident. The plan may even provide that it is not responsible for covering post-settlement accident related care.

Continue reading "Cutoff Date for Liens in Florida Personal Injury Cases" »

For Florida accident victims and those who care for and about them, the tyrannical reign of Jeb [Bush] the Horrible (Governor of Florida from 1999 to 2007) continues to haunt.

Once upon a time in Florida, employees hurt at work could sue their employers in tort by proving that an employer's conduct created a "substantial certainty" the harmful accident would occur. Although the standard was tough, it still gave employees harmed through conduct exceeding mere negligence a fighting chance of being fairly and fully compensated, rather than being limited to the oftentimes inadequate benefits available under Florida's workers' compensation system. A victim making the requisite showing was able to overcome an employer's workers' compensation immunity.

Dear Jeb and his uncaring Republican lackeys in the Florida Legislature were dismayed that working men (and women) had a fighting chance against the beloved "Job Creators," so they eliminated the right. In 2003, the Florida Legislature effectively overruled the Florida Supreme Court case of Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), the case which gave a decent interpretation to the "substantial certainty" standard, by amending Florida Statute 440.11 with the "virtually certain" standard. The pertinent language reads as follows:

The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

As fairly stated by the 4th DCA in List Industries v. Dalien (opinion issued on January 23, 2013), "The change from '"substantial certainty"' to '"virtually certain"' is an extremely different and a manifestly more difficult standard to meet. It would mean that a plaintiff must show that a given danger will result in an accident every -- or almost every -- time."

Continue reading "Virtually Impossible for Injured Workers to Overcome Workers' Compensation Immunity to Sue Employers for Negligence" »

Winning may not be a victim's only concern in a personal injury case. Collecting on damages awarded post-victory can be of equal or greater importance.

Not every tortfeasor (at-fault party) is adequately insured or has the independent financial means to satisfy a court judgment. In some instances a non-negligent party, one, perhaps, with the resources to satisfy a judgment, is held legally accountable for the damages caused by another party. This is called vicarious liability. The most common example of vicarious liability involves the owner of a motor vehicle being responsible for the negligence of a permissive user of the vehicle. It is worth repeating that a vicariously liable party need not be negligent.

Florida employers can be liable for the conduct of their employees in two different ways. One is vicarious liability. The other requires active negligence on the part of the employer.

An employer can be vicariously liable for the act of an employee committed (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer. Valeo v. East Coast Furniture Co., So.3d , 37 FLW D1820 (Fla. 4th DCA 8-1-2012). In Valeo, following a motor vehicle accident the plaintiff exited his truck and approached the driver's side window of the defendant's truck, whereupon the defendant's employee hit him in the eye with a padlock. The defendant's driver testified that he hit the plaintiff with a padlock because he thought the plaintiff was trying to rob him of cash he was carrying for the employer. The plaintiff denied being the aggressor. The trial court decided that the employer could not be vicariously liable under these circumstances. The appellate court disagreed, holding that the question was one to be decided by a jury.

Continue reading "Liability of Florida Employers for Employee Negligence " »

People hurt on the job can often bring damage claims against their employer under workers' compensation and third parties responsible for causing the accident. Normally, workers' compensation medical and lost wage benefits are provided to the injured worker before the third party case is resolved.

Florida Statute 768.76 provides that amounts owed by negligent third parties are offset by benefits injured persons receive from collateral sources. However, the offset does not apply to benefits that must be repaid. The right a source has to be repaid is known as subrogation.

Workers compensation insurance carriers have subrogation rights pursuant to Florida Statute 440.39.

Continue reading "Liability Defendant Does Not Receive Offset From Waiver of Florida Workers' Compensation Lien" »

Adults hosting house parties are well advised to be hyper vigilant in preventing alcohol or drugs from falling into the hands of minors. The negative consequences of failure, outlined in Florida Statute §856.015, can be substantial.

An adult who fails to keep a minor from possessing or consuming alcohol or drugs commits a second degree misdemeanor, punishable by a fine up to $500 and 60 days in prison. Where harm comes to a minor or others due to a violation of 856.015, the offense is a first degree misdemeanor, punishable by a fine up to $1000 and one year in jail.

Continue reading "Adult Party Host Liability for Possession/Use of Alcohol and Drugs by Minors" »

Securing the payment of medical expenses is one of the main responsibilities of Personal Injury attorneys. At trial, Plaintiffs must prove (1) that charges are for treatment for injuries at issue in a lawsuit, as opposed to treatment for some other condition, and (2) the charges are reasonable and necessary. See Garrett v. Morris Kirschman & Co., Inc., 336 So.2d 566 (Fla. 1976).

Interestingly, while part (1) requires expert medical testimony, part (2) is established from the Plaintiff's perspective, rather than from the perspective of a medical expert. See, Id., and Albertson's, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986).

Continue reading "Securing the Payment of Medical Expenses in Florida Personal Injury Cases" »

Rear-end crashes represent nearly 25% of all roadway motor vehicle accidents. The natural inclination is to blame the driver of the approaching vehicle, the one that slammed into the rear of the other vehicle. Florida law supports this notion by creating a presumption of fault against the approaching driver.

Law enforcement, the courts, and personal injury lawyers are well-advised to think twice before jumping to this conclusion. They must understand that attentive drivers sometimes crash their vehicles into the rear-end of leading or stationary vehicles in broad daylight through no fault of their own.

Our firm and Domnick & Shevin PL are involved in a lawsuit against a motor coach company and its driver for a client who drove his employer's passenger bus into the rear of the motor coach. The motor coach was stopped in a through lane without any traffic forcing it to stop or slow down. It did not have a flat tire, run out of gas, or have a mechanical emergency. Our client, who approached from behind in the same lane, had a clear view of the stopped vehicle beginning from approximately 1000 feet away. There were no cars in front of him in any of the approaching traffic lanes. Our client noticed the motor coach from a distance off, but it wasn't until he was too close to avoid the accident that he perceived it was stopped. Our client sustained catastrophic injuries.

We have hired numerous experts to explain various elements of the case. An engineer will discuss speeds, distances and things of that nature. A trucking expert will describe industry standards and safety issues. Neither of these experts, nor the many doctors who will talk about our client's horrible injuries and the economist, who will calculate past and future economic damages, are qualified to explain the phenomenon of why a trailing driver can plow into the rear of another vehicle without being at fault.

That is the job of a human factors expert. We have hired one of the best.

Continue reading "The Science of "Looming Motion" and "Looming Threshold" in Rear-End Motor Vehicle Crashes" »

Astute personal injury lawyers always look for ways to maximize their client's financial recovery. Establishing aggravating factors against the at-fault party is one of the main ways of doing this. In motor vehicle accident cases, there is no better opportunity for scoring points against the liable party than connecting alcohol use to the accident.

The involvement of alcohol can lead to a claim for punitive damages. The procedure for claiming punitive damages and the standards for holding a defendant liable for punitive damages are set forth in Florida Statute 768.72.

A claim for punitive damages may not be plead in the initial complaint. Rather, the Plaintiff must seek leave of court to amend the complaint to claim punitive damages. The judge should allow the amendment if evidence in the record or proferred by the Plaintiff provides a reasonable basis for recovery of such damages. Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996) and F.S. 768.72(1). Contrary to the proposition often put forward by Defendants, the statute does not require an evidentiary hearing to permit the amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court's determination. Strasser v. Yalamanchi, 677 So.2d 455 (Fla. 2d DCA 1981).

768.72 says this about what must be shown to establish liability:

(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:

(a) "Intentional misconduct" means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

Continue reading "Special Considerations in Florida Motor Vehicle Crash Cases Involving Alcohol (DUI)" »

Purchasers of used goods, such as appliances and cars, often buy from dealers subject to the condition that the items are being sold "As Is." Does this provision in a sale agreement insulate the seller from liability for personal injuries caused by a defect? Probably not.

Sellers use "As Is" disclaimers with the intention and expectation of disclaiming all warranties, both express and implied. To be valid, the disclaimers must meet certain requirements such as being written and conspicuousness within the written document.

An "As Is" disclaimer is not an exculpatory clause. An exculpatory clause relieves a party of tort liability. Because exculpatory clauses relieve parties of exercising due care, they are looked upon with disfavor in most states, including Florida. To be enforceable, an exculpatory clause must be so clear and understandable that "an ordinary and knowledgeable person will know what he is contracting away." Gayon v. Bally's Total Fitness Corp., 802 So.2d 420, 421 (Fla. 3d DCA 2001); Southworth & McGill v. Southern Bell Tel. & Tel. Co., 580 So.2d 628, 634 (Fla. 1st DCA 1991); Ivey Plants, Inc. v. FMC Corp., 282 So.2d 205, 208 (Fla. 4th DCA 1973); Middleton v. Lomaskin, 266 So.2d 678, 680 (Fla. 3d DCA 1972). See, also, Enforceability of Exculpatory Clauses (Pre-Injury Liability Releases) in Florida

Continue reading "The "As Is" Doctrine and Florida Personal Injury Law" »

Some 80 years ago in Florida, workers' compensation was substituted for the personal injury system as the nearly exclusive remedy for employees seeking compensation from employers for workplace accidents. The idea was that workers should not have to establish fault, a basic element of every personal injury case, in order to be compensated. In exchange for this valuable concession, employers were relieved from having to pay non-economic damages, broadly referred to as pain and suffering. In its original form, this quid pro quo was fair.

The quid pro quo is fair no longer. Through years of Republican rule - beginning with Governor Jeb Bush, in concert with right-wing dominated legislatures - the once equal quid pro quo balance has given way to a one-sided workers' compensation system strongly favoring employers and their insurance carriers over injured workers.

See these blogs to understand the imbalance:

• Florida's Workers' Compensation System's Steady Decline Into the Abyss


• The Steady Erosion of Florida Workers' Compensation Rights & Benefits


• Florida Workers' Compensation Law: Proving Medical Causation

Due to the gross imbalance, accident lawyers must always consider ways to overcome the workers' compensation immunity granted to employers. Unfortunately, the option is rarely available.

The known ways of overcoming the immunity have been:

1. If an employer fails to have workers' compensation coverage in place. See Florida Statute Section 440.11(a)


2. An employer commits an intentional tort that causes the injury or death. See Section 440.11(b)


3. Estoppel. The employer denies that the accident occurred in the course and scope of employment employment. See Byerley v. Citrus Publ'g, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999)

Continue reading "New Twist in Florida's Workers' Compensation Immunity Law" »

People harmed in accidents by the negligence of others often have available to them other sources, such as private insurance and governmental programs, to provide lost wages and medical benefits while they wait to be compensated by the tortfeasors (at-fault parties) for their losses. Florida Statute 768.76 calls these other sources collateral sources.

768.76(1) permits a tortfeasor an offset in the amount of any collateral source of indemnity and medical benefit unless the source of indemnity has a right of subrogation. In other words, if the recipient of the collateral source benefits does not have to repay the providers, the tortfeasor does not have to pay for them.

The reasoning behind this principle, known as the Collateral Source Rule, is to prevent victims from receiving a windfall.

Continue reading "Florida's Collateral Source Rule & Workers' Compensation Liens" »