Pie-Chart-300x246Last week I blogged on the subject of the interplay between health insurance and disability insurance liens and recoveries in personal injury cases. Today’s topic has numerous similarities. It also has a significant difference.

Section 768.76(4), Florida Statutes controls health and disability insurance liens governed by Florida law. Section 440.39 is the companion statute that controls workers’ compensation liens. Each statute lays out a formula for satisfying liens from recoveries made in personal injury cases. The difference is not recognizable from the language of the respective statutes. In fact, the statutes read very much alike. It took case law to create the distinction.

Damages in personal injury cases fall into two broad categories: economic and noneconomic. Economic damages include past and future medical expenses and income loss. Noneconomic damages include past and future pain and suffering, mental anguish, and losing the capacity to enjoy life. Economic damages are objective. Noneconomic damages are subjective.

The benefits available in Florida workers’ compensation cases are limited to medical and lost wages (indemnity), making it similar to health insurance and disability insurance. Noneconomic damages are not available in workers’ compensation cases.

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Google-Street-View-300x225One of the most important elements in a premises liability case is proving notice of the dangerous condition. This is done by demonstrating that the owner and/or possessor of the premises had actual or constructive knowledge of the dangerous condition before the accident occurred.

Google Maps was launched in 2005, Google Street View in 2007. Images captured by both sometimes demonstrate constructive knowledge by showing that a dangerous condition existed for a period of time sufficient to impute notice against the owner or possessor of the property. The trick for the proponent of the Google images is to get them admitted into evidence.

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Pie-Chart-300x246It is common for medical bills incurred in Florida personal injury cases to be paid by health insurance. Some people injured in accidents also receive private disability insurance benefits. Most health and disability insurance policies afford insurance carriers subrogation or reimbursement rights against the insured who has recovered all or part of the insurance payments from a tortfeasor (the at-fault party). This means that the carrier has the right to be repaid some or all of the insurance benefits paid out.

How much must be repaid depends in large measure on the law governing the relationship between the insurer and insured. Self-funded employer policies are governed by ERISA. Non-ERISA policies and fully-insured employer policies fall under the authority of section 768.76(4), Florida Statutes. This blog addresses reimbursement under the Florida Statue.

Section 768.76(4) reads as follows:

A provider of collateral sources that has a right of subrogation or reimbursement that has complied with this section shall have a right of reimbursement from a claimant to whom it has provided collateral sources if such claimant has recovered all or part of such collateral sources from a tortfeasor. Such provider’s right of reimbursement shall be limited to the actual amount of collateral sources recovered by the claimant from a tortfeasor, minus its pro rata share of costs and attorney’s fees incurred by the claimant in recovering such collateral sources from the tortfeasor. In determining the provider’s pro rata share of those costs and attorney’s fees, the provider shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney’s fees.

Most statutes require some sort of judicial intervention to establish their parameters. In Magsipoc v. Larsen, 639 So.2d 1038 (Fla. 5th DCA 1994), the application of section (4) was considered on appeal in a wrongful death case involving the repayment of health insurance benefits to the carrier.

Before dying after nearly drowning in a pool, the young child received extensive medical care in an effort to save her life. Health insurance paid all of the medical expenses and costs (totaling $472,000). Thereafter, the child’s parents sued the pool owners on behalf of themselves and their daughter’s estate.

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greedWhile recently researching a Florida legal matter, I came upon this Utah Supreme Court case — Hill v. State Farm Mutual Insurance Company. It demonstrates a shocking indifference by a billion dollar insurance company towards the feelings of grieving family members whose loved ones were killed in a crash caused by an intoxicated motorist. State Farm dragged the family members through the coals for more than a year over a measly $5,510.

While the opinion was written in 1988, not much has changed through the years. When it comes to money, State Farm is always ready, willing and able to flex its outsized muscles.

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dollars-254x300Workers injured in motor vehicle crashes while in the course and scope of employment may be eligible for compensation through uninsured/under-insured (UM/UIM) motor vehicle insurance. UM covers losses sustained by the insured, passengers, and family members through the fault of a party who fails to maintain Bodily Injury (BI) insurance. Hit-and-run and “phantom vehicle” scenarios also fall under UM coverage. UIM covers losses that exceed the limits of coverage available under the at-fault party’s BI insurance. Those same injured workers could also be eligible for workers’ compensation benefits for the same accident.

Section 440.39(3)(a), Florida Statutes (2019) states that in actions by the employee against a tortfeasor, the employee or his representative “shall sue for the employee individually and for the use and benefit of the employer, if a self insurer, or employer’s insurance carrier, in the event compensation benefits are claimed or paid….” Id. This means that the workers’ compensation insurance carrier has a lien against any judgment or settlement ultimately recovered by the employee. Id. 

UM/UIM benefits are not subject to the workers’ compensation lien. See Volk v. Gallopo, 585 So.2d 1163 (Fla. 4th DCA 1991).

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motorway-300x224Florida is one of only a handful of states that operates under a No-Fault system for paying medical expenses incurred in connection with motor vehicle accidents. Florida’s No-Fault Law, commonly referred to as “PIP” (personally injury protection, is contained in sections 627-730-627.7405 of the Florida Statutes. There is a dollar limit as to how much is covered under the No-Fault Law. Section 627.736(1) provides as follows:

REQUIRED BENEFITS.An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to subsection (2) and paragraph (4)(e), to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle….

Florida jurisprudence allows individuals involved in accidents to seek damages for pain, suffering, mental anguish, and inconvenience because of bodily injury. These are known as non-economic damages. Florida’s No-Fault Law makes obtaining these damages in motor vehicle crash cases more difficult than in other types of accident cases. This is because of the unique requirements outlined in s. 627.737(2):

In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:

(a) Significant and permanent loss of an important bodily function.
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
(c) Significant and permanent scarring or disfigurement.
(d) Death.
The primary battleground in the fight for non-economic damages is part (b), which involves more subjectivity than parts (a), (c), and (d). Typical examples include claims of back, neck, and knee pain. Defendants argue that there hasn’t been an injury or that an injury, as visualized in diagnostic testing such as x-rays and MRI imaging, is preexisting and unrelated to the accident.

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Personal injury cases can have both active and passive tortfeasors, with both being legally responsible for compensating the injured party. The passive tortfeasor’s liability arises from the legal principle known as vicarious liability. Consider these examples:

In Florida

  • Under the principle of respondeat superior, an employer is responsible for the damages caused by its employee in the course and scope of the employment.
  • Under the dangerous instrumentality doctrine, with the exception of rental companies vehicle owners are liable for damages caused by permissive users of their vehicles.

In the typical litigated case, both the active and passive tortfeasors are sued. Interestingly, Florida law allows plaintiffs to settle with the active tortfeasor without being precluded from continuing the action against the passive torfeasor. In JFK Medical Center, Inc. v. Price, 647 So. 2d 833 (Fla. 1994), the plaintiff sued a doctor for medical malpractice and wrongful death. The plaintiff’s complaint also included a claim against the passive tortfeasor, the doctor’s employer, for vicarious liability. Id. at 833. Before trial the plaintiff and the active tortfeasor, the doctor, entered into a voluntary settlement agreement which provided that the lawsuit against the active tortfeasor would be dismissed with prejudice. Id. The passive tortfeasor thereafter moved for summary judgment asserting that the active tortfeasor’s dismissal operated as an adjudication on the merits, and thereby precluded continuation of the lawsuit against the passive tortfeasor. Id. at 833-34. The trial court granted the passive tortfeasor’s motion for summary judgment. Id. at 834. On appeal, the Florida Supreme Court held “that a voluntary dismissal of the active tortfeasor, with prejudice … is not the equivalent of an adjudication on the merits that will serve as a bar to continued litigation against the passive tortfeasor.” Id. at 834. The court based its decision on the public policy, as documented in sections 768.041(1) and 768.31(5), Florida Statutes, of encouraging the settlement of civil actions. Id. at 834.

(Caution must be exercised when plaintiff wishes to enter into an agreement to release the active tortfeasor only. The language of the settlement documents must be read carefully to avoid being construed as also releasing the passive tortfeasor. The Price case does not prohibit an agreement which releases both the active and passive tortfeasors.)

Parties to lawsuits, both defendants and plaintiffs, have available to them a powerful tool to encourage settlements. The tool, which goes by a different name for each side but is designed to accomplish the same end, is outlined in section 768.79(1), Florida Statutes. For defendants, the tool is known as an “offer of judgment,” while for plaintiffs it is called a “demand for judgment.” (Florida Rule of Civil Procedure 1.442, which outlines the technical requirements of these pleadings, calls them “Proposals for Settlement,” commonly referred to as “PFS.”) The pertinent language of 768.79(1) is set forth below:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment [a/k/a “OJ”]which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff’s award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand.

(Bold added)

In hard fought cases, reasonable costs and attorney’s fees can be substantial. Each side seeks to present a number that will trigger 768.79(1) without being outside the range of an appropriate settlement if accepted. The higher a defendant’s OJ, the more difficult it is for the plaintiff to beat it. Conversely, the lower the plaintiff’s PFS, the harder it is for defendant to beat it.

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A key objective of every civil law defense attorney is to limit the amount of money his or her client, the defendant, must pay to the suing party, the plaintiff. In Florida cases involving personal injuries, the damages for which the defendant may be held responsible for compensating the plaintiff fall into two categories, economic (e.g., lost wages and medical expenses) and non-economic (e.g., pain and suffering; mental anguish). (Non-economic damages are not recoverable in Florida workers’ compensation cases, where the law limits injured workers to compensation for medical and indemnity benefits only.)

Plaintiffs and defendants are in a never ending battle over the fairest and most accurate ways to demonstrate the plaintiffs’ damages past and future to juries. As it pertains to future medical expenses and past and future non-economic damages, a common area of dispute concerns what the jury is allowed to know in terms of past medical expenses. Plaintiffs argue that jurors should have the benefit of knowing the full amount of past medical charges regardless of how much was paid after reductions were made, for example, by Medicare, health insurance, settlement with another parry, and private negotiations. Defendants argue that the only relevant number is what has actually been paid or is owed, not what was billed.

In Durse v. Henn, 68 So. 2d 271 (Fla. 4th DCA 2011), the defendant in an automobile negligence action, Henn, filed a motion in limine to preclude the plaintiff, Durse, from presenting the full amount of his medical bills because his medical provider had accepted a lower amount as final satisfaction of all outstanding medical bills.  Id. at 275. The trial court granted Henn’s motion. On appeal, Durse argued that the trial court’s ruling prejudiced “his ability to establish the value of future medical expenses and non-economic damages and contend[ed] that this [was] an issue that should be resolved post-verdict.”  Id.  Henn argued that the trial court must limit introduction of the amount of medical bills to the amount actually paid by Durse, rather than the original face value of the medical bills. Id.

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scales-of-justice-300x203Trump’s shifting legal defense reminds me of one of our firm’s more interesting past cases.

We represented a lady who fell and suffered a badly broken bone in her leg because of a dangerous condition on her employer’s property. At the time of the accident she had multiple sclerosis, but it was in remission, helped along by Cytoxan therapy. She had been leading a full life, including full time employment. Sadly, following the accident the MS reared it’s ugly head like never before. She became wheelchair bound and required 24/7 attendant care.

We argued that the broken bone caused the MS to become active, that, in other words, it aggravated the MS. Defense counsel argued that trauma cannot aggravate MS. She hired the head of the Dept. of Neurology of a prominent Florida hospital as her expert. As it turned out, this doctor was a pipe smoking blowhard who pretended to be an authority but really knew nothing about the subject at hand. (During a break in his deposition, I walked into the men’s restroom and actually caught him standing at the urinal, pipe in mouth, desperately reading an article on the subject. We made eye contact and I turned around and walked out.) He was exposed and shamed. In contrast, our expert, Dr. William Sheramata (deceased), who happened to be the client’s treating doctor, was an internationally renowned MS expert. He was also a prince of a gentleman and brilliant.

vaping-silhouette--254x300First, harsh reality: Like traditional cigarettes, JUUL contains nicotine. Nicotine causes addiction by stimulating the release of neurotransmitter chemicals such as dopamine and serotonin which activate pleasure hormones in the brain. The addictive cycle results from the compulsion of users to chase the pleasure high. Combined with a smooth vapor, accomplished through an infusion of pH-softening benzoic acid, and a false understanding of the product’s toxicity, JUUL consumers frequently eclipse cigarette smokers in nicotine consumption. (One JUUL “pod,” the nicotine cartridge inserted into a smoking device and heated, delivers around 200 puffs, about as much nicotine as 35 cigarettes, more than a pack-and-a-half.) Vaping is linked to: