Miscellaneous

October 27, 2022

Jeffrey P. Gale, P.A. — Arbitration is Un-American

The 7th Amendment to the United States Constitution, ratified in 1791, codifies the importance of jury trials in civil cases to the framework in the American Way. Here is the amendment’s simple language:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Jury trials allow everyday citizens, guided by the law and the facts, to pass judgment on civil matters between contesting parties. The concept is that the collective wisdom of juries consisting of our peers, devoid of bias and preference, will render just decisions. The system, which, in my view, is the greatest system devised by any society for handling such matters, has worked remarkably well.

May 1, 2022

Jeffrey P. Gale, P.A. // Exculpatory Clauses Place Florida School Children at Risk

by Jeffrey P. Gale, P.A.

One of the main goals behind holding individuals and corporations accountable for the damage caused by their negligence is to make society a safer place. The thinking is that to avoid the substantial hassle and expense of lawsuits and damage awards, thoughtful people will act reasonably.

An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury. Elalouf v School Board of Broward County, 311 So.3rd 863, 865 (Fla. 4th DCA 2021). Exculpatory clauses are commonly used against children in Florida’s public and private schools.

December 18, 2021

Jeffrey P. Gale, P.A. // Proceed Cautiously With Settlement Releases

by Jeffrey P. Gale, P.A.

Think of an injury case like navigating a ship from one port to another. Signing up the case is the equivalent of throwing off the ropes and pulling safely away from the dock. Being at sea is analogous to litigation. Some days you will eat the bear and some days the bear will eat you. Stay your course. Invariably, chart adjustments will be necessary, but the final destination always remains the same: favorable resolution of the case. Settling the case equates to pulling into port. However, it is not the last act. The ship must be successfully docked and secured. The Settlement Release is part of this final act. It must be done properly to avoid damaging the ship.

Our law firm handles both workers’ compensation and personal injury/wrongful death cases. It is not uncommon to have both types of cases arising out of one accident. For example, we represent a gentleman who suffered numerous catastrophic injuries in a motor vehicle crash. Since the accident happened in the course and scope of his employment, he was covered under workers’ compensation. We recently settled the workers’ compensation case. The common law liability case, against the second vehicle’s owner and our client’s co-worker [brought under a theory of gross negligence to overcome workers’ compensation immunity], remains ongoing.

As part of the workers’ compensation mediated settlement, the workers’ compensation carrier agreed that the settlement did not affect the liability case against the third party or the co-worker. Nevertheless, the General Release it submitted to us contained wording that could be construed as preventing our client from proceeding against the co-worker. We have reworded it to avoid this outcome.

May 11, 2021

Jeffrey P. Gale, P.A. // Florida Politicians Do Not Like “We the People”

by Jeffrey P. Gale, P.A.

Within the past two weeks, three bills limiting the rights of everyday citizens to control how they are governed were signed into law in Florida.

On May 10, 2021, Florida Governor Ron DeSantis signed Senate Bill 1890. The bill places a $3,000 cap on contributions to political committees trying to put proposed constitutional amendments on the ballot.

Constitutional amendment ballot initiatives are a citizen’s way of creating law. The right extends back to Florida’s 1968 Constitution. Examples of successful initiatives include approval of medical marijuana and a pathway for restoration of felon voting rights. Getting a proposed constitutional amendment on the ballot is a steep uphill climb. It requires forming and registering a committee, getting approval of the initiative language from the Attorney General and Florida Supreme Court, and securing thousands of signatures. Once the initiative is on the ballot, it requires 60% approval from voters for passage. Financial resources provide the wherewithal to accomplish all of these goals. SB 1890 may be an insurmountable hurdle. Recognizing this, the American Civil Liberties Union has wasted no time in filing a lawsuit in federal court in Tallahassee, Florida claiming that SB 1890 “burdens and chills” free speech and association under the First Amendment.

February 19, 2021

Jeffrey P. Gale, P.A. // Dealing With Medical Payments Made by the Wrong Entity During a Pending Florida Workers’ Compensation Case

by Jeffrey P. Gale, P.A.

It is not unusual for entities other than the workers’ compensation insurance carrier to pay medical expenses following a work-related accident. The most common payors are health insurance carriers, Medicare, and Medicaid. (PIP (a/k/a “No Fault”) insurance also pays if the accident involves motor vehicles, but since their rights are different than those of the other entities mentioned above for purposes of this blog, PIP will not be addressed in this blog.)

Since workers’ compensation is supposed to be the primary payor — PIP can add a wrinkle to this concept. See section 627.736(4), Florida Statutes — the other entities are entitled to reimbursement for the payments they have made. How the reimbursement is made depends on when, during the life of the workers’ compensation case, the payment is made. If it is made post-settlement, the payment is typically made as part of a negotiated agreement between the entities and the injured worker’s attorney. This is always the situation when the workers’ compensation employer/carrier denies responsibility for the accident and injuries throughout the entire case. Alternatively, when the carrier has accepted compensability of the claim it may agree as part of the negotiated workers’ compensation settlement to satisfy the liens. In this circumstance, hold harmless language should be included in the settlement agreement to protect the claimant in case the carrier fails to be proactive in resolving the liens and the entities come after the claimant for repayment.

March 17, 2020

Jeffrey P. Gale, P.A. // Example of State Farm’s Callous Indifference to Human Suffering

by Jeffrey P. Gale, P.A.

While 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.

********************************

January 29, 2020

Jeffrey P. Gale, P.A. // Shifting Legal Defense Theories in a Workers’ Compensation Case and Trump’s Impeachment Trial

by Jeffrey P. Gale, P.A.

Trump’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.

July 20, 2018

Jeffrey P. Gale, P.A. // Where We Stand

by Jeffrey P. Gale, P.A.

July 25, 2018; Facebook

Russia has broken into our home and Trump wants us to be gracious hosts.

July 25, 2018; Facebook

If honest elections, a free press, and civil rights aren’t your priorities, what is it about America that you value?

July 22, 2018; Facebook

Trump v. Putin is like a theatrical WWW phony v. an MMA killer. Making matters worse is that the match is rigged.

July 21, 2018; Facebook

Trump knows that his militant base is very stupid (x 100) and that the moneyed interests are selfish pigs willing to go along, and he believes that the combination of both will keep him afloat. A majority of Americans see him for what he is, but don’t have the power now to do anything about it.

I’d rather be powerless than stupid or craven.

July 20, 2018; Facebook

Trump is in free fall and the country is being sucked down in his noxious wake. For more than 20 years he has been the bag man for dirty Russian money. This is how he was able to stay afloat when no U.S. bank would touch him with a 10 foot pole, and it is why he doesn’t dare disclose his tax returns and is deathly afraid of Putin (who has all of the dirt on him). This is not revelatory news.

Trump knows his exposure and is becoming unhinged before our eyes. On one side, he is being pursued by the most imposing team of lawyers and investigators ever assembled led by the preeminent law enforcement officer in American history. On the other side he is being squeezed by Putin, the cold-hearted, steely-eyed keeper of his deepest and darkest secrets.

The gig is almost up and Trump knows it. Being a sleezebag for an entire lifetime has its consequences. At some point, the forces of nature catch up to you. In the immortal words of Heavyweight Champion Joe Louis, The Brown Bomber, “You can run, but you can’t hide.”

Trump, we know where you are and we’re coming to get you.

Sweet dreams, Meathead.

April 4, 2018

Jeffrey P. Gale, P.A. // Where We Stand

by Jeffrey P. Gale, P.A.

Trump rants that “attorney client privilege is dead.” BS! I’m a lawyer and feel no less confident that as long as my clients and I keep our noses clean, our privileged communications will remain sacrosanct as always. Major hurdles had to be overcome for the federal judge to authorize the raid [in the Cohen matter]. Moreover, additional post-raid safeguards are in place to prevent unauthorized breaches of the privilege. The AC privilege is not absolute; it is not a license to advance or commit crimes. While the measures taken against Cohen are severe, they are not unfair [despite what the Whiner in Chief declares]. The rule of law has been followed to a T.

********************************

Trump is a despicable pig. Period. Anyone who thinks otherwise is right there with him. Period. One day after Passover, the Festival of Liberation, and mere hours after attending church services on Easter Sunday, a supposed day of joy and compassion for Christians, this human smegma dashes all hope for tens of thousands of good and decent and defenseless young people by gleefully declaring in pathologically perverse tweets that DACA is dead.

February 19, 2017

Jeffrey P. Gale, P.A. // Jethro and Moses Responsible for American Jurisprudence

by Jeffrey P. Gale, P.A.

In 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.