Anatomy of a (Florida) Premises Liability/Personal Injury Settlement

Shaking hands.jpgEvery case is different. From accident to injuries, no two cases are ever exactly alike. That said, certain common elements do run through every case. From time to time I will be posting about some of the cases our firm has resolved. The common elements should become apparent in these blogs.

This first example involves a 2011 premises liability accident. Our client slipped in wet paint as she was descending a stairway after work. The property owner had hired an unlicensed and inexperienced recent Cuban immigrant to improve the appearance of the premises for a December holiday party. The painter failed to place warnings signs around the stairwell. It was night time and the outside stairwell was poorly lit. The accident happened in the blink of an eye. There was nothing our client could do to prevent the fall.

Our client, who was wearing flat-soled shoes, landed squarely on her rear-end. She felt immediate pain. Grey paint stained her pants and blouse. She called a co-worker, who assisted her in receiving medical care at a clinic located in her building. Within days she was receiving medical care under the workers’ compensation system from doctors hand-picked by the WC insurance carrier.

Because the building owner was not her employer, she was free to pursue a premises liability case against the owner. (See this blog on the law of non-delegable duty and Florida Statute 440.11, Florida’s workers’ compensation immunity statute.) However, she was unaware of this right, and the workers’ compensation attorney she hired did not consider the option. Within months, our client became disenchanted with her workers’ compensation attorney and came to our law firm for a consultation.

Our law firm handles workers’ compensation and premises liability cases. We quickly recognized that she also had a viable personal injury case. We agreed to handle both cases. This was seven months after the accident.

Our first course of business was to request a slew of records, including medical and employment documents from the workers’ compensation insurance carrier. This was quicker, easier, and cheaper than requesting each set of records individually from the various entities. Within thirty days we had the records and were able to review them to get a clearer picture of the cases.

Among other things, we learned that she had undergone a 3-level spine fusion surgery in early 2012. We also learned that, in 2007, she had another, albeit less intrusive, back surgery. The prior surgery turned out to play a prominent role in the premises liability case.

We also used discovery in the workers’ compensation case, in particular, F.S. 440.39, to establish relevant liability information against the building owner.

Once we were comfortable that our client was medically stable, we proceeded to settle the workers’ compensation case at mediation. In addition to agreeing to pay a lump sum, the insurance carrier assigned its 449.39 workers’ compensation lien to our client. (The lien was more than $180,000, meaning that the workers’ compensation carrier had provided this much in benefits to our client. Without the assignment, the carrier would have been entitled to be reimbursed some of this money from our recovery in the liability case. The assignment eliminated this hurdle.)

After the workers’ compensation case was settled, we turned our sights on the premises liability case. While we attempt to resolve some cases pre-suit, we decided that this case required a lawsuit to obtain a full recovery. Our assessment was correct.

Our Complaint alleged that the property owner knew of the dangerous condition before the accident occurred and/or that it had a non-delegable duty to our client (i.e., it could not avoid responsibility by blaming the independent contractor). The Defendant denied both allegations. It also denied that the stairwell had been painted at the time in question.

Through formal discovery, we learned the name of the gentleman who painted the stairway and the representative of the building owner who hired him, his sister. We proceeded to take their depositions, which were videotaped. (See Florida Rule of Civil Procedure 1.310(b)(4)(A)). Under oath, with the video camera running and the court reporter typing away, the Defendant’s denials began to unravel. We showed the witnesses the check stub [as payment for the paint job] that we had obtained in the workers’ compensation case. They essentially admitted when and how the accident happened.

While liability was now established, damages were not. The Defendant argued that the 2012 surgery was due to a degenerative back condition, most clearly evidenced by the 2007 surgery. It also pointed to her pain complaints following a 2010 car crash and the testimony of a co-worker who observed the Plaintiff using a special seat cushion for back pain and sometimes grimacing and walking gingerly shortly before our accident.

Pursuant to FRCP 1.360 the Defendant had our client examined by a notorious insurance company defense doctor. Of course, he attributed all of our client’s problems, including the need for the surgery, to a preexisting condition.

We did not deny that there might be some preexisting component. This would have undercut our credibility. We could not ignore the 2007 surgery, her complaints following the 2010 car accident, and x-ray and MRI test results from before and shortly after our accident showing degeneration. Moreover, the workers’ compensation surgeon opined that 40% of her condition was preexisting.

At the completion of the aforementioned depositions, the defense attorney, staff counsel for the premises liability insurance company, inquired of me about setting the case for mediation. Even though the case was not set for trial, I thought it was a good idea. Liability was clear and I was comfortable on the issue of damages. Even still, it took six months from that conversation to get the case to mediation. The attorney needed the adjuster’s approval. This was delayed because a new adjuster had come on the case and needed time to familiarize herself with the facts. Scheduling conflicts and the Defendant needing time to line up its preexisting condition defense, most particularly, arranging for the FRCP 1.360 compulsory medical examination (CME), caused further delays.

The defense attorney suggested some mediators. After making some inquiries, I agreed to an old-school Plaintiff’s lawyer whose vast experience would command the respect of both sides. He was a good choice.

Six weeks before mediation, I prepared a demand package complete with pertinent medical records, photographs, and an outline of the case from the Plaintiff’s point of view. We demanded more than $1,000,000. Telephone and email negotiations began shortly thereafter. The Defendant’s opening offer was $10,000. Defense counsel explained that this unreasonably low offer was the adjuster’s response to what she considered to be our unreasonably high demand. Instead of responding by lowering the demand, I told defense counsel that Defendant’s opening response had to be at least $50,000 or there was nothing more to discuss. Within two days, the adjuster upped the offer to $50,000. Negotiations continued. However, they stalled with the parties apart at $100,000 and $975,000. Mediation was required to get further movement.

Mediation took place in the mediator’s office in South Miami. It was scheduled for 1:30-6:30 pm. The attendees for the Defendant were the adjuster, who drove down from Orlando, her defense attorney, and two other representatives for the building owner. For our side it was me and the Plaintiff.

The mediation began with the mediator describing his background and mediation expectations. This was effective because it established the mediator as an authority whose opinions should be valued. After the attorneys gave brief opening statements, the parties were put into separate rooms to speak privately. Since pre-mediation negotiations had broken off with the Plaintiff’s $975,000 demand, the mediator stayed behind with the Defendant to get a counter-offer. This came after 30 minutes. The mediator explained that he spent the time laying out the pros and cons of each side’s case. It was important for him to plow this ground with the Defendant. It opened the door to a meaningful discussion. He did the same with us.

Back and forth it went. Demand and offer. The Defendant finally said that it would offer no more. The adjuster had reached the limit of her authority. We informed the mediator that it would take more money to get the case settled. He proposed that we commit to a bottom line number that the adjuster would try to get with a phone call to her superior. We committed to a number (which included the Defendant paying Plaintiff’s share of the mediator’s $400/hr charge). The adjuster made the call and got the money. Case settled.

The mediator drew up the Mediation Settlement Agreement. The parties reviewed and signed. Thank yous and hand shakes were exchanged. Everyone went home.

The Defendant’s insurance company sent us the settlement check within a week of mediation. We deposited the check in our trust account. After the check cleared within a few days, our client came to the office to sign a closing statement and receive her settlement proceeds. Wrapping up was made much easier by having the lien assignment from the workers’ compensation carrier.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.