maze1-300x225Some wrongs present the aggrieved party with more than one legal remedy. A common example is when an injured person has the option of seeking a recovery under common law or workers’ compensation pursuant to Chapter 440, Florida Statutes. Once the choice is made and pursued beyond a certain point, the alternate option cannot be pursued. This is the legal principle known as Election of Remedy.

Typically, the injured person receives or seeks workers’ compensation benefits before deciding to pursue civil damages. There is no shortage of Florida appellate case law addressing how far one may go in the pursuit before the choice becomes binding. There is very little case law addressing the opposite scenario, namely, how far one may go in pursuing a civil remedy before being foreclosed from seeking workers’ compensation benefits.

The legal analysis is the same for both types of cases:

An election is matured “when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other,” and “[i]t is generally conceded that to be conclusive it must be efficacious to some extent.” Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936)Williams v. Duggan, 153 So.2d 726 (Fla. 1963).

It is usually much easier to determine whether an election has been made in a civil case than it is in a workers’ compensation case. In civil cases, damages are not paid unless and until a determination has been made on the legal issue of whether common law is the proper vehicle for pursuing a remedy. Until this final determination is made, the election has not matured.

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Uber-300x145Riders and operators of Uber and Lyft rides will be surprised to learn that they are barely covered by insurance or not covered at all for economic losses and personal injuries resulting from crashes caused by uninsured and underinsured motorists.

Florida Statute 627.748 outlines the insurance requirements for Transportation Network Companies (“TNC”) such as Uber and Lyft. When the TNC driver is logged on to the digital network but is not engaged in a prearranged ride, the insurance coverage requirements are:

  • $50,000 for death and bodily injury per person,
  • $100,000 for death and bodily injury per incident,
  • $25,000 for property damage, 
  • Personal injury protection benefits, and
  • Uninsured and underinsured vehicle coverage (“UM/UIM”).

While a TNC driver is engaged in a prearranged ride, defined in 627.748(1)(b) as “when a TNC driver accepts a ride requested by a rider through a digital network controlled by a transportation network company, continuing while the TNC driver transports the rider, and ending when the last rider exits from and is no longer occupying the TNC vehicle,” the coverage limits above are bumped up to “at least $1 million for death, bodily injury, and property damage.”

Of the five varieties of coverage required by the statute, only the first four in the list above are mandatory. Uninsured and underinsured vehicle coverage, which is for the protection of persons insured under bodily injury policies who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, can be rejected by the “insured named in the policy” on behalf of all insureds under the policy. Section 627.727(1), Florida Statutes.

While the TNC statute, 627.748, leaves it up to the companies or the drivers to secure the required coverage, the reality is that the companies secure the coverage. This makes the companies “the insured named in the policy” authorized to reject  the UM/UIM. Since UM/UIM adds to the cost of the insurance policy, TNC companies are rejecting the coverage (Lyft) or selecting limits lower than the required BI limits (Uber). (627.727(1) allows insureds to reject altogether or select limits lower than the BI limits. Hence, Uber is able to select $10,000 in UM/UIM coverage even though its BI is $50,000/$100,000 or $1,000,000.)

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cemetery1We are representing the surviving spouse of an elderly gentleman who fell and broke his hip due to the negligence of a condominium association. While hospitalized for the serious injury, he contracted Covid 19 and died. Our claim against the condo association is for his wrongful death rather just for the broken hip. We are doing so on the authority of Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977).

In Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977), a car crash victim’s injuries were made worse by the negligence of a treating doctor. The victim was allowed to claim damages for the enhanced injuries from the parties liable for the underlying car crash case.

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car-insurance-policyMotor vehicle insurance companies are expert at finding ways of denying coverage under policies. The successful denial of coverage can leave the insured with significant burdens.

The successful denial of coverage in Geico Indemnity Co. v. Walker, Case No. 4D20-764 (Fla. 4th DCA May 12, 2021), is a cautionary tale for Floridians, as the circumstances underlying the denial are exceedingly common.

In Walker, the Geico insured was the driver in a single-vehicle crash that killed him and his passenger. The passenger’s estate filed a wrongful death action against the insured. Geico denied coverage under the driver’s policy because the subject vehicle was not a listed vehicle on its policy. With respect to the incident, Geico asserted that the subject vehicle did not meet the definition of an owned, non-owned, or temporary substitute vehicle.

Following Geico’s denial, the two estates entered into a settlement agreement whereby damages would be determined by arbitration and the driver’s estate would assign its right to sue Geico for breach of duty to defend and to indemnify. The arbitration resulted in an arbitration award of $7,722,150 in total damages for the passenger’s wrongful death claim against the driver.

The case we are discussing is the appeal from the passenger’s lawsuit against Geico facilitated by the assignment. At the trial court level, it was established that the vehicle operated by the Geico insured was a 1992 Porsche, made available to the driver by the owner, his stepfather, to use and take care of for ten years without specific restrictions. The Porsche was not listed under the Geico policy as an insured vehicle. Instead, the vehicle was listed in the stepfather’s automobile insurance policy with Allstate, which also listed the driver as an insured driver on that policy.

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dollarsIt is common for health and disability (lost wages) insurance companies to pay benefits to their insureds who have been injured through the negligence of others. Most of the insurance policies contain language granting the insurance company a right of reimbursement for the money it has paid out from the proceeds recovered by the insured in the personal injury case for the same losses.

How much must be repaid depends on policy language and who is paying the settlement or judgment in the personal injury case.

Many of the insurance policies provide that the carrier has the right to be reimbursed in full up to the amount recovered in the liability case before the insured and the insured’s attorney receive penny one. When the compensation is paid by a tortfeasor, who is the person or entity responsible for causing the harm, reimbursement is determined by the formula set forth in  section 768.76(4), Florida Statutes. The statutory formula applies even where the insurance policy calls for full reimbursement to the carrier first. In Ingenix v. Ham, 35 So.3d 949 (Fla. 2nd DCA 2010), Gerald Ham’s health insurer, UnitedHealthcare, paid almost all of Ham’s medical bills relating to a medical procedure that ultimately resulted in his death. After settling with the medical providers (i.e., tortfeasors) in a medical malpractice lawsuit, Ham’s estate contended that it was only required to reimburse UnitedHealthcare a reduced amount according to the formula set out in section 768.76(4), Florida Statutes (2008). UnitedHealthcare took the position that it was entitled to full reimbursement in accordance with the language of its policy. The court held that section 768.76(4) controlled, limiting UnitedHealthcare’s reimbursement to the formula under section 768.76(4).

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maze2The difficulties and limitations associated with medical negligence claims are many. The list includes:

  • Medical malpractice claims have a shorter statute of limitations than ordinary negligence claims — two years versus four years. See § 95.11(4)(b) and § 95.11(3)(a).
  • Prospective medical malpractice plaintiffs must comply with complex and costly presuit requirements, as set forth in chapter 766, Florida Statutes, before filing a medical malpractice suit, which includes conducting “an investigation to ascertain that there are reasonable grounds to believe” that medical malpractice occurred. Ordinary negligence claims do not have these requirements. Id. § 766.203(2)see generally id. § 766.201-.212.
  • The restrictions that chapter 766 places on medical malpractice plaintiffs’ ability to prove their cases persist even after a lawsuit is filed, such as providing specific qualifications for medical experts testifying as to the standard of care. See generally id. § 766.102.
  • Certain adult children (over the age of 25) whose parents die as a result of medical negligence are barred from recovering lost parental companionship, instruction, and guidance and for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(3).
  • Certain parents of adult children who die as a result of medical negligence are barred from recovering for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(4).

“Because of the statutory restrictions and requirements that apply only to medical malpractice claims, any ‘doubt’ as to whether a claim is for ordinary negligence or medical malpractice should be ‘generally resolved in favor of the claimant.”‘ J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla. 1994).

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cemetery1I have railed at length in this blog against a Florida law that allows medical providers alone to avoid the same legal liability everyone else faces for causing the negligent loss of life. The offensive statute is section 768.21(8), Florida Statutes, which is part of Florida’s Wrongful Death Act.

Section 768.21, entitled “Damages,” describes who is entitled to what in wrongful death cases. Subparts (3) and (4) provide as follows:

(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.
(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

Where the wrongful death resulted from medical malpractice, subpart (8) bars the recovery of “lost parental companionship, instruction, and guidance and for mental pain and suffering” of “all children of the decedent if there is no surviving spouse.” as otherwise allowed in subpart (3), and “mental pain and suffering” for “[e]ach parent of an adult child … if there are not other survivors” as otherwise allowed in subpart (4). Subpart (8) provides as follows:

(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

(For purposes of this statute, an adult child is a child over the age of 25)

This simple paragraph has caused heartache upon heartache to a countless number of parents and children whose loved ones died from medical malpractice. Every week our office receives phone calls from disbelieving adult children and parents seeking a magical solution that doesn’t exist. Often, we are their fourth and fifth call. Sadly, the best we can offer are condolences and the suggestion they complain to Florida’s Governor and its state legislators. Not very comforting words.

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firefighter2-300x200In City of Jacksonville v. Ratliff, 217 So. 3d 183 (Fla. 1st DCE 2017), a firefighter with a pre-existing history of diabetes, high cholesterol, prior history of smoking, and a family history of early onset CAD – blocked arteries (CAD – coronary artery disease) caused by the build-up of plaque – among other pre-existing factors, suffered a myocardial infarction (another term for heart attack) after a stressful meeting at work. The myocardial infarction resulted from the rupture of the plaque.

The Employer/Carrier (E/C) presented uncontroverted evidence that the CAD was caused by preexisting factors unrelated to work. Nevertheless, the Judge of Compensation Claims (JCC) awarded compensation and related medical treatment for the myocardial infarction under the “heart-lung” statute, section 112.18, Florida Statutes. E/C appealed. The First DCA affirmed the JCC’s decision.

The Claimant asserted compensability of the heart condition on a “presumption only” basis; or in other words, the Claimant had no medical evidence of occupational causation and relied solely on the presumption of the “heart-lung” statute. To rebut the presumption, E/C faced only the threshold rebuttal burden of presenting competent evidence, rather than clear and convincing evidence, that the disease was not work related. This required E/C to provide evidence that a single factor, or multiple factors, wholly combined, causing the CAD were non-industrial in nature.  Punsky v. Clay Cty. Sheriff’s Office, 18 So.3d 577 at 583 (Fla. 1st DCA) (on rehearing en banc)Fuller v. Okaloosa Corr. Inst., 22 So.3d 803, 806 (Fla. 1st DCA 2009).

E/C met its burden. Even still, it was held responsible for Claimant’s heart attack.

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ladder1We currently represent an elderly woman who was knocked down in the hallway of her condominium building by a large, unleashed dog. She fell and struck her head on the ground. In the days following the event, she had headaches and was lightheaded. While taking a shower, she fainted. As a result of this event, she was hospitalized then transferred to a facility for a month of rehabilitation. She is now receiving 24/7 attendant care at home.

Are the injuries sustained from the subsequent fall compensable?

Something similar happened in Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So. 2d 549 (Fla. 1951). The Plaintiff/Appellee had suffered a brain concussion and other injuries in a motorcycle accident. Within weeks of the accident, he climbed a ladder to reach his attic. While descending, he suffered a dizzy spell and fell to the concrete floor. His injuries from this fall were permanent and catastrophic — paralysis in his lower and upper extremities.

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american-flag-1316754-300x200Within the past two weeks, three bills limiting the rights of everyday citizens to control how they are governed were signed into law in Florida.

On May 10, 2021, Florida Governor Ron DeSantis signed Senate Bill 1890. The bill places a $3,000 cap on contributions to political committees trying to put proposed constitutional amendments on the ballot.

Constitutional amendment ballot initiatives are a citizen’s way of creating law. The right extends back to Florida’s 1968 Constitution. Examples of successful initiatives include approval of medical marijuana and  a pathway for restoration of felon voting rights. Getting a proposed constitutional amendment on the ballot is a steep uphill climb. It requires forming and registering a committee, getting approval of the initiative language from the Attorney General and Florida Supreme Court, and securing thousands of signatures. Once the initiative is on the ballot, it requires 60% approval from voters for passage. Financial resources provide the wherewithal to accomplish all of these goals. SB 1890 may be an insurmountable hurdle. Recognizing this, the American Civil Liberties Union has wasted no time in filing a lawsuit in federal court in Tallahassee, Florida claiming that SB 1890 “burdens and chills” free speech and association under the First Amendment.

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