cemetery1-300x200Liability insurance policies issued in Florida that provide coverage for personal injuries contain a per person/per occurrence provision. The provision declares the limits of coverage available under the policy.

The Florida Wrongful Death Act outlines who may be compensated for the wrongful death of a person caused by the intentional act or negligence of a third party. The Act refers to these individuals as “Survivors.” Section 768.18(1) Florida Statutes (2016). (Link to this page to see a “Survivors” chart.)

As the chart shows, there can be multiple Survivors in a single case. How does the per person/per incident provision apply to the situation involving more than one survivor?

In Jones v. Zagrodnik, Dean Jones was killed in a collision with a negligent Roger Zagrodnik. Zagrodnik was insured by Home Insurance under a $100,000 per person/$300,000 per occurrence policy. There were three “Survivors.” The Fifth District Court of Appeal limited their recovery to a total of $100,000, reasoning that their claims were derivative from the deceased and fell under the per person limit of the policy.

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scales-of-justice-300x203There is great strength in numbers. You realize that as an advocate for injured workers and a strong defender of civil justice in our state. This is the primary reason why the Florida Workers’ Advocates and the Florida Justice Association have joined forces to stand up for working people at the State Capitol and throughout Florida in a unified manner.

Whether the focus is on the manner in which rates are established or the denial of medical treatment and related benefits for injured workers, the overwhelming theme is that the workers’ compensation system has been skewed in favor of big business and the insurance industry for far too long. We have all represented individuals who have been harmed by this fractured system.

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fox-292x300NCCI is the only entity that proposes rate increases/decreases to the Florida Office of Insurance Regulation (OIR). It is a private company that does not owe a fiduciary responsibility to the state’s residents. NCCI does not divulge its methodology or source information, calling it “proprietary.”

In 2016, the workers’ compensation insurance industry sent marching orders to NCCI to make the case for a dramatic increase in premiums charged to business owners. The case was presented to the Florida Office of Insurance Regulation and resulted in a 14.5% rate hike.

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scales-of-justice-300x203Stung from being held accountable by the Florida Supreme Court, Associated Industries of Florida (a/k/a Enemy of the People), commanded by Tom Feeney, he of the 2000 Presidential Election coup, is proposing, on behalf of itself and other workers’ compensation insurance companies, to abolish carrier-paid attorney’s fees.

In Castellanos v. Next Door Company, the Florida Supreme Court ruled that workers’ compensation insurance companies that force injured workers to institute legal proceedings to secure benefits may, in some instances, be required to pay the Claimant’s attorney a reasonable fee. The fee is due only when the injured worker successfully secures wrongly denied benefits. The court described carrier-paid fees as a sensible method of motivating insurance companies to follow the law without the need for judicial involvement (See, Judges of Compensation Claims.) In the court’s view, the threat is the proverbial stick Claimants must have at their disposal to get carriers to comply with the state’s workers’ compensation laws. The ruling was not issued in a vacuum. A long historical record shows that it works.

Which is why it is opposed by Associated Industries. AI abhors the idea of workers being able to compete for benefits on a level playing field. Its legislative proposal looks to slant the field back in its favor — the Castellanos justices spoke at length about leveling the playing field.

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moses-224x300In Parsha Yitro (full text here in Hebrew and English), Jethro suggests to Moses, his son-in-law, that the Jewish people would be better served if he appointed a hierarchy of magistrates and judges to assist him in the task of governing and administering justice to the people. The advice was taken, establishing the framework for the form of civil jurisprudence practiced in America today, some 3300 years later.

In Florida, the administration of civil disputes is handled through a series of courts, each with varying degrees of authority and responsibility. Disputes involving $15,000 or less begin in the trial jurisdiction of county courts, while disputes in excess of $15,000 fall within the jurisdiction of the civil circuit trial court system. Appeals from decisions made in both court systems can sometimes be taken all of the way up to the Florida Supreme Court. In some rare instances, the Supreme Court of the United States will consider a state court case.

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File-Feb-09-8-45-45-AM-225x300Here is my Letter to the Editor (Miami Herald), published on February 9, 2017:

FAILED PARENTING

I’m not a psychiatrist, so I won’t venture a diagnosis to explain President Trump. But I am a parent and do have an idea from that perspective: Trump’s parents failed miserably at teaching their boy the basic lessons of human decency.

Uber-300x145In a case with far-reaching implications, Florida’s Third District Court of Appeal ruled on February 1, 2017 that an Uber driver was not an employee of Uber. In McGillis v. Department of Economic Opportunity, the court decided that, based on the contract between the driver and Uber and the nature of their relationship, the driver was an independent contractor for the purpose of reemployment assistance under Chapter 443 Florida Statutes (2015).

While the case involves a relatively minor claim for unemployment compensation, the court’s ruling, with its in-depth analysis of Florida’s independent contractor law, will have consequences in other types of Florida cases.

In civilized society a person injured through the negligence of another party should have the right to be compensated for their losses by that party. However, what is good in theory (i.e., the right to pursue a recovery) does not always pan out in reality. Frequently, the at-fault party is not adequately insured, if insured at all, or does not have the personal means to cover the losses. It is the personal injury lawyer’s job to make every effort to find sources of payment.

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accident-scene-300x193With fault being a fundamental element in all but strict liability personal injury cases, it is often critically important for both sides of a dispute to be able to view certain photographs taken after an accident to help piece together the how and why of its occurrence. Common examples include accident-scene images showing the resting place of vehicles involved in a multi-vehicle collision or a condition alleged to have caused a fall.

Very often only one side has the photographs and sometimes the party refuses to share them with the other side, citing work product privilege as the basis.

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Notes-300x215The parties to a Florida workers’ compensation case have the unique right to conduct discovery depositions even in the absence of a pending claim, which is brought by filing a Petition for Benefits.

The right is granted under Florida Statute 440.30 and is limited to cases where the Claimant is represented by an attorney. (This means that the Employer and Carrier, known collectively as “E/C”, cannot employ the device against an unrepresented Claimant.) Significantly, “[I]f no claim has been filed, then the carrier or employer taking the deposition shall pay the claimant’s attorney a reasonable attorney’s fee for attending said deposition.”

Because both parties may conference separately with authorized medical providers — Section 440.13(4)(c) Florida Statutes grants E/C the right — it is rare for a medical provider to be deposed in the absence of a pending Petition for Benefits. From E/C’s perspective, it can learn what it needs by talking to the doctor privately without having to pay the Claimant’s attorney to attend a deposition.

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greed-1-156x300“Big Business,” for want of a better term, goes to great lengths to misinform the public about many different subjects, all for the purpose of advancing one cause: MAXIMIZING PROFITS!

One of its most popular and successful themes is the notion that the country is suffering under an onslaught of “frivolous lawsuits.” By convincing the public that most lawsuits are baseless and that baseless lawsuits cause the price of products and services like insurance and health care to spiral upwards, Big Business has successfully polluted the minds of potential jurors and gotten politicians to enact legislation curbing access to courtrooms and imposing arbitrary caps on damages in personal injury cases. The end result is that “We the People” have been bamboozled into giving up the right to seek redress for legitimate grievances.

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