Civil Litigation

April 26, 2022

Jeffrey P. Gale, P.A. // Vicarious Liability of Owners-Builders for Personal Injuries

In the interest of public health, safety, and welfare, most construction projects require the services of licensed contractors. See Section 489.101, Florida Statutes. Section 489.103 outlines various exemptions to this public policy. One of the exemptions, contained in 489.101(7)(a), applies to “Owners of property when acting as their own contractor and providing direct, onsite supervision themselves of all work not performed by licensed contractors.”

To impress upon owners the significance and consequences of operating as their own contractors without being licensed, the statute contains a 12-part section titled “Disclosure Statement.” The owner is required to sign this form for the local permitting agency.

In general, Florida law provides that “[A] property owner who employs an independent contractor to perform work on his property will not be held liable for injuries sustained by the employee of an independent contractor during the performance of that work.” Strickland v. TIMCO Aviation Servs., Inc., 66 So. 3d 1002, 1006 (Fla. 1st DCA 2011).

December 21, 2021

Jeffrey P. Gale, P.A. // Where the Insurance Policy is Delivered Can Matter

by Jeffrey P. Gale, P.A.

We recently resolved a case involving a reimbursement dispute under an Occupational Health & Disability Insurance Policy. Our client, an independent trucker, had sustained catastrophic injuries from being struck by a motor vehicle as he was changing a tire while parked in a gore on I-95 in Florida. He was hospitalized in intensive care and was unable to return to work for nearly two years. Thankfully, he was covered under the insurance policy, which paid his medical bills and lost wages.

The insurance policy contained language entitling the carrier to be reimbursed in full from any money our client was paid as a result of the accident.

We sued two individuals and a company seeking damage compensation for our client. After litigating the case for more than three years, we secured a reasonable settlement. We held the money in trust pending resolution of the Occupational Health & Disability Insurance carrier’s reimbursement claim. Unable to work out the claim amicably, we filed a petition to resolve the claim with the court that handled the underlying personal injury case. (Anticipating problems in resolving the reimbursement claim amicably, we asked the court to retain jurisdiction for that eventuality. Doing so allowed us to keep a smart judge and avoid a new filing fee.)

The policy contained the following language: “The Policy is governed by the laws of the jurisdiction in which it is delivered.”

The insurance carrier was home based in another state and the policy was made available to large companies throughout the United States who used independent drivers like our client, through a trust company based in Washington, DC. The carrier argued that Washington, DC law applied to the reimbursement claim since the policy was delivered to the trust in DC. Under DC law, the terms of the policy would control. This would effectively enable the carrier to recover 100% of the underlying settlement without our client netting anything. (The underlying case had exceedingly difficult liability issues. The most at-fault person, who was intoxicated, had no insurance and died penniless before we got the case. We ended up suing a separate company, which was responsible for highway assistance, for failing to have proper warning lights on its vehicle. We received a sizeable settlement, but the amount paid by the OH&D carrier was more sizeable.)

We argued that Florida law, in particular, Florida Statute 768.76(4), applied to the reimbursement dispute. Under this statute, the court would be allowed to reduce the reimbursement amount owed by taking various equitable factors into consideration including procurement costs and comparing the settlement amount to the full value of the case. See Jeffrey P. Gale, P.A. // Resolving Health and Disability Insurance Liens in Personal Injury Cases Under Florida Statute 768.76.

November 8, 2021

Jeffrey P. Gale, P.A. // Election of Remedies — Seeking Workers’ Compensation Benefits After First Pursuing Civil Remedy

by Jeffrey P. Gale, P.A.

Some 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 Remedies.

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.

January 28, 2021

Jeffrey P. Gale, P.A. // Obtaining Defendant’s Medical Records to Benefit Plaintiff’s Personal Injury Case

by Jeffrey P. Gale, P.A.

A patient’s medical records enjoy a confidential status by the right to privacy in Article I, Section 23 of the Florida Constitution. State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002). “Florida law, however, also recognizes that this confidentiality right is not absolute, and provides for the disclosure of medical records pursuant to subpoena in criminal and civil cases.” See Estate of Carrillo v. Federal Deposit Insurance Corporation, (S.D. Fla., 2012).

Florida Rule of Civil Procedure 1.280(a)(1) contains the basic guidance language in civil cases for the disclosure of confidential records.

(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party…. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

When it comes to confidential medical records, “the right to discovery in a legal proceeding must be balanced against the individual’s competing privacy interests to prevent an undue invasion of privacy.” See McEnany v. Ryan, 44 So. 3d 245, 247 (Fla. Dist. Ct. App. 2010). In Friedman v. Heart Inst. of Port St. Lucie, 863 So.2d 189, 194 (Fla. 2003), the Florida Supreme Court instructed trial courts that in exercising their discretion to balance the competing interests, they must be guided by the principles of relevancy and practicality.