Civil Litigation

May 7, 2025

Jeffrey P. Gale, P.A. /// Interplay Between Florida’s Workers’ Compensation Lien Law (FS 440.39) and UM/UIM Insurance (FS 627.727)

It is not unusual for employees to be injured in motor vehicle crashes while in the course and scope of performing their job duties. Such incidents implicate various types of insurance coverage.

Regardless of fault, i.e., whether or not the employee caused the crash, injured employees should be covered by workers’ compensation, PIP, and health insurance (including Medicare). Workers’ compensation and PIP are primary over Medicare, meaning Medicare will expect workers’ compensation and PIP to pay before it does, and if it does pay, to be repaid from the proceeds of a workers’ compensation or personal injury settlement.

If the injured employee is not at-fault, he or she can pursue a civil remedy for damages against the at-fault driver and the vehicle owner if different than the driver. The funds for the recovery would come from the liable party’s bodily injury (BI) insurance coverage and/or personal assets.

In some instances, the liable party may not maintain bodily injury insurance or the BI coverage limits may not be enough to pay the full measure of damages. Florida offers an optional type of insurance coverage to protect the injured party under those situations. The type of coverage is known as uninsured and underinsured vehicle coverage (UM/UIM). The purpose of the insurance is “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.” Section 627.727(1), Florida Statutes (2025). Basically, UM and UIM substitute for the inadequacies in coverage of the at-fault party.

April 30, 2025

Jeffrey P. Gale, P.A. /// Uber Drivers and Passengers, Beware!

by Jeffrey P. Gale, P.A.

Much has been written about the type of insurance coverage available to Uber passengers and other third parties for accidents caused by Uber drivers. Less has been written about the coverage available to Uber drivers and their passengers for injuries caused by third parties such as other drivers.

Currently, we are handling a case for an Uber driver who was hurt through the negligence of another driver. Our client’s passenger was also hurt.

Florida motor vehicle insurance policies offer a variety of coverages. For individuals, only Property Damage Liability and PIP are mandatory. The other available coverages are Uninsured Motorist/Underinsured Motorist (UM/UIM), Comprehensive, Collision, and Medical Payments. A premium is charged for each type of coverage.

Uber maintains insurance coverage in Florida with Progressive. We received a copy of the policy applicable to our accident. The available coverages are:

Liability to Others – Bodily Injury and Property Damage Liability – $1,000,000 combined single limit
Comprehensive – $2,500
Collision – $2,500
Medical Payments – $5,000 each person

Uber rejected UM/UIM. PIP was not an option.

April 18, 2025

Jeffrey P. Gale, P.A. /// Premises Liability: Landlord’s Post-possession Duty to Repair Dangerous Defective Conditions

by Jeffrey P. Gale, P.A.

Our law firm receives a steady stream of inquiries from tenants, mostly residential, regarding dangerous conditions inside of their units. If someone has been injured, we ask if the landlord or maintenance company had notice of the dangerous condition in advance of the incident. If nobody has yet been injured, we instruct the callers to notify their landlord and maintenance company in writing (email will do).

The reason for this is because landlords and maintenance companies have a continuing duty to repair dangerous conditions upon notice of their existence, unless waived by the tenant. Mansur v. Eubanks, 401 So. 2d 1328, 1330 (Fla. 1981 and § 83.51(1), Fla. Stat. (2021).

March 18, 2025

Jeffrey P. Gale, P.A. /// Practice Pointer: Keep Your Eye On the Ball

by Jeffrey P. Gale, P.A.

Everyone is familiar with the idiom, “Keep your eye on the ball.” What it means, quite simply, is to keep one’s attention focused on the matter at hand. Lawyers must remember this during intense situations.

Last week we experienced just such an intense situation. In a case involving severe personal injuries sustained by our client, we attended a hearing on the Defendant’s motion for summary judgment. The corporate defendant was asking the court to enter a judgment that it was not vicariously liable for the negligence of its agent. In other words, Defendant was asking the court to throw out the case against it. Serious stuff.

Defendant’s motion was brought under Florida Rule of Civil Procedure 1.510, which reads in pertinent part as follows:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (bold added for emphasis).

The burden is on the moving party (in our case, the Defendant) to demonstrate the absence of genuine material facts, that no material issues remain for trial, and that the movant is entitled to judgment as a matter of law. See, Florida Rule of Civil Procedure 1.510(a). “An issue is genuine if ‘a reasonable trier of fact could return judgment for the non-moving party,’ and ‘[a] fact is material if it might affect the outcome of the suit under the governing law.’” Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11^th Cir. 2008) and Anderson v. Liberty Lobby, Inc., 477 U.S. 22, 247-48 (1986).

January 16, 2025

Jeffrey P. Gale, P.A. /// Don’t Underestimate the Potency of Florida Workers’ Compensation Statute 440.39

by Jeffrey P. Gale, P.A.

It is not uncommon for a personal injury case and a workers’ compensation case to arise out of the same accident. This is often the case when an employee is hurt in the course and scope of his job through the negligence of a third-party. Our law firm handles both types of cases.

Florida Statute 440.39 gives the employer or its workers’ compensation insurance carrier, as the case may be, lien rights in the proceeds of any recovery made in the personal injury liability case. In consideration of this right, the employer and carrier have a “duty to cooperate” with the employee in prosecuting claims and potential claims against third-party tortfeasors. See sec. 440.39(7).

The court in Shaw v. Cambridge Integrated Servs. Group, Inc., 888 So.2d 58, 64 (Fla. 4th DCA 2004), declared that the duty to cooperate found in section 440.39(7) is “[o]ne of the most important rules and conditions stated in the Workers Compensation statute.” For example, an employer/carrier’s failure to cooperate can have adverse consequences on their lien rights. 440.39(3)(a) provides that

the failure by the employer or carrier to comply with the duty to cooperate imposed by subsection (7) may be taken into account by the trial court in determining the amount of the employer’s or carrier’s recovery, and such recovery may be reduced, as the court deems equitable and appropriate under the circumstances, including as a mitigating factor whether a claim or potential claim against a third party is likely to impose liability upon the party whose cooperation is sought, if it finds such a failure has occurred.

A violation of 440.39 can also subject the employer/carrier to a spoliation claim for failing to preserve evidence. This cause of action is not barred by the employer’s workers’ compensation immunity outlined in section 440.11, Florida Statutes. See General Cinema Beverages of Miami v. Mortimer, 689 So.2d 276, 278 (Fla. 3d DCA 1995).

October 29, 2024

Jeffrey P. Gale, P.A. /// Spouse Married Post-Accident Entitled to Florida Wrongful Death Damages

by Jeffrey P. Gale, P.A.

In Ripple v. CBS Corp., 385 So.3d 1021 (Fla. 2024), the Florida Supreme Court held that a spouse who married the decedent after the onset of the injury that caused the decedent’s death can recover damages as a “surviving spouse” under section 768.21(2) of the Florida Wrongful Death Act (the Act). That provision allows a “surviving spouse” to recover “for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.”

Relying on statutory interpretation, the Court rejected the argument that the common law “marriage before injury” rule bars recovery under section 768.21(2). The “marriage before injury” rule is limited to personal injury claims. It provides that where a couple is not married before the injury occurred, no consortium damages are available. See, e.g., Tremblay v. Carter, 390 So. 2d 816, 817 (Fla. 2nd DCA 1980).

August 28, 2024

Jeffrey P. Gale, P.A. // Releasing Active Tortfeasors Does Not Release Vicariously Liable Tortfeasors

by Jeffrey P. Gale, P.A.

Active tortfeasors become legally liable for engaging in negligent conduct. Passive tortfeasors become liable for the negligent conduct of active tortfeasors through the legal principle known as vicarious liability. Examples include owners of motor vehicles whose permissive drivers cause crashes and employers for the acts of their employees.

Nowadays, active tortfeasors can be released from cases, even before a lawsuit is brought, without sacrificing the case against the passive tortfeasors. It wasn’t always this way in Florida.

Common law used to reason that settling with the active tortfeasor discharged the liability of the passive tortfeasor. “At common law and before the enactment of statutes to the contrary, a release of one joint tortfeasor released the other, Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914).” Safecare Health Corp. v. Rimer, 620 So. 2d 161, 164 (Fla. 1993)(McDonald, J. dissenting).

In modern times, at least, the Florida Legislature has, for the most part, not been friendly to Plaintiffs. It has crafted statutes making it harder to gain access to the courthouse and to obtain just compensation for serious injuries once inside. An exception to this history concerns statutory changes that paved the way to the present state of the law regarding settlements with active tortfeasors.

The first statutory change was enacted in 1957. It provided that

A release or covenant not to sue as to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.

In Hertz Corp. v Hellens, 140 So. 2d 73 (Fla. 2d DCA 1962), the court interpreted the statute as applying “to all tort-feasors, whether joint or several, including vicarious tortfeasors.”

Subsequent Florida statutes — 46.015, 768.041, and 768.31 — and case law — e.g., Stephen Bodzo Realty, Inc. v. Willits International Corp., 428 So. 2d 225 (Fla. 1983), Florida TomatoPackers, Inc. v. Wilson, 296 So. 2d 536, 538 (Fla. 3d DCA 1974), JFK Medical Center, Inc. v. Price, 647 So. 2d 833 (Fla. 1994), Crosby v. Jones, 705 So. 2d 1356, (Fla. 1998) — have brought us to the present state where it is safe to settle with, and dismiss, actively liable tortfeasors. However, while this may be true, caution must still be exercised with the settlement release.

First and foremost, avoid any language that could be construed as releasing other defendants, including vicariously liable tortfeasors. As further protection, add language to the release making it clear that it does not apply to any other defendants including but not limited to vicariously liable defendants.

Advantages of settling with the active tortfeasor include gaining access to funds and, in some instances, getting the active tortfeasor to feel friendlier to the plaintiff’s side.

August 1, 2024

Jeffrey P. Gale, P.A. // Florida’s Illusory Volunteer Protection Act

by Jeffrey P. Gale, P.A.

Some states exempt charities from liability for damages caused by their servants. Florida does not. Nicholson v. Good Samaritan Hospital, 199 So. 344 (Fla. 1940). This is consistent with the legal doctrine known as respondeat superior, which holds employers liable for the negligent or purposeful acts of their employees. See Valeo v. East Coast Furniture Co., 95 So. 3d 921, 925 (Fla. 4th DCA 2012) (negligence of employee imputed to employer when employee “committed the negligent act: (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer.”). This liability, also known as vicarious liability, applies even if the employer has done nothing wrong.

Most jurisdictions, either by state or federal law, exempt volunteers from all liability for injuries caused by negligence. This is an exception to the general rule that employees are liable for their negligence.

Congress enacted the “Volunteer Protection Act of 1997”

“to promote the interests of social service program beneficiaries and taxpayers and to sustain the availability of programs, nonprofit organizations, and governmental entities that depend on volunteer contributions by reforming the laws to provide certain protections from liability abuses related to volunteers serving nonprofit organizations and governmental entities.”

42 USC 14501 Sec. 2(b)

The Act preempts state law unless the state law provides greater protections to volunteers. Interestingly, it also authorizes states to enact laws under certain prescribed circumstances allowing civil suits against volunteers. Section 3(b).

July 21, 2024

Jeffrey P. Gale, P.A. // Comparative Fault Not Part of Manfredo Formula Equation

by Jeffrey P. Gale, P.A.

Not infrequently, both a workers’ compensation case and a personal injury liability case will arise from the same accident. For example, a construction site supervisor involved in a motor vehicle crash while traveling to Home Depot for supplies can pursue workers’ compensation benefits from the employer and civil liability damages from the at-fault party.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

June 12, 2024

Jeffrey P. Gale, P.A. // Sovereign Immunity Strikes Again — Not Good!!!

by Jeffrey P. Gale, P.A.

We just received a telephone call from a heartbroken mother whose 47-year old daughter died a few years ago after falling into a diabetic coma. A well-being, or safety check, call was made to the local police department a day after the young woman phoned to inform her employer that she wasn’t feeling well. A law enforcement officer went to her home that day, but her parents believe that the officer failed to take appropriate actions as her car was in the driveway and the windows of her home were open even though it was raining. The officer did not make contact with the woman or attempt to go into the home. She was found deceased in her home two days later. The mother believes her daughter was incapacitated but alive at the time of the safety call and could have been rescued if she had been discovered then and emergency care rendered.