Articles Posted in Miscellaneous

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question.jpgThe legal principle which binds a litigant to the path chosen to right a wrong is known as election of remedies. The principle should not be confused with the procedure of seeking alternative remedies within the same forum, best illustrated by a multi-count complaint asserting various legal theories of recovery.

Although not a common element in most cases, the election of remedies issue does arise with some frequency in connection with workers’ compensation and personal injury cases.

For the most part, it is clear when a worker has been injured on the job. Falling from a roof and being struck by a forklift are clear examples of work related accidents. Under Chapter 440 of Florida’s Statutes, Section 440.11 in particular, most employers with four or more employees will have what is called workers’ compensation immunity for these types of accidents. What this means is that most employees are limited to the remedies available under Florida’s workers’ compensation system.
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king.jpgSovereign Immunity derives from the medieval principle that “The King can do no wrong.” Prior to 1975, its application in Florida meant that the government could not be sued for damages caused by its wrongdoing. In that year, the Florida Legislature enacted Florida Statute 768.28, which allowed actions against the state or any of its agencies or subdivisions (e.g., cities, municipalities, counties). However, the statute capped the amount that could be recovered, regardless of the actual damages in a case, and it allowed to stand absolute immunity for planning level decisions.

From the statute’s original enactment until July 1, 2011, a period of 36 years, the damage caps stood at $100,000 per individual, $200,000 total per claim. For example, if 4 people were catastrophically injured by the negligence of a government employee, the most any one individual could recover was $100,000, leaving the other 3 to share the remaining $100,000. (The $200,000 could also be split equally among the four or any other way, so long as any one victime did not receive more than $100,000.)

In 2009, the Florida Legislature passed a bill upping the damage caps to $200,000/$300,000 effective July 1, 2011. The increase, although far from adequate in many cases, was a long time coming and a positive step.

The statute has left untouched absolute sovereign immunity for the discretionary, judgmental, planning-level decisions of a governmental entity. Examples include decisions concerning the initial plan, road alignment, traffic control device installation, the improvement of roads and intersections, and defects in the construction of a road, median, and intersection.

However, once the sovereign becomes aware of a hazard so serious and so inconspicuous to a foreseeable plaintiff that it virtually constitutes a trap, the planning level absolute sovereign immunity is waived, bringing into play the damage caps discussed above.

Countless wars have been fought over whether planning level immunity applies or has been waived.
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burning van.jpgI have blogged here in the past that the 2011 Republican-controlled Florida Legislature seemed bound and determined to gut one of the state’s most important laws at holding vehicle manufacturers accountable for producing defective products. Although some within the legislature may have had this outcome as a goal, reasonable minds prevailed in the 2011 legislative session to the extent that the legislative body’s modifications did not eviscerate the law as many within the civil justice community had feared.

The principle of law under discussion is the crashworthiness doctrine. It stands for the proposition that vehicle manufacturers can be liable for harm caused by unsafe vehicles, even if the vehicle was put to the test by another negligent party. Kidron v. Carmona, 665 So. 2d 289 (Fla. 3rd DCA 1995) (following Larson v. General Motors, 391 F. 2d 495 (8th Cir. 1968)).

The principle was later bolstered by the holding in D’Amario v. Ford, 806 So. 2d 424 (Fla. 2001), which limited the use of comparative fault in crashworthiness cases.

In D’Amario a minor was the passenger in a vehicle that struck a tree. A fire began that ended in an explosion, causing the minor to lose three limbs and suffering burns to much of his body. The fire resulted from a defective relay switch manufactured by Ford.

The minor and his mother sued Ford for the damages resulting from the defective switch. They did not seek to recover compensation from Ford for injuries from striking the tree.

At trial, Ford sought to introduce evidence as to the cause of the initial accident, which was that another minor was intoxicated and negligently drove the vehicle into the tree. The plaintiffs (mother and son) argued that this evidence was irrelevant to the claim for damages caused by the defective switch. The trial court admitted the evidence, meaning that it allowed the jury to hear the evidence. The jury returned a verdict for Ford.

The case was appealed and made its way to the Florida Supreme Court. The court considered cases from other states and concluded that the majority view in the nation was that such impact evidence was relevant. Nevertheless, the Florida Supreme Court adopted the minority view, ruling in favor of the catastrophically injured minor and his mother.

Before D’Amario, in crashworthiness cases jurors were allowed to hear evidence of the driver’s fault and apportion damages against the driver. This tended to direct the focus of responsibility onto the negligent driver and take it off the manufacturer whose defective product caused the enhanced injury. D’Amario eliminated the chance of such evidence distracting, confusing, or angering juries.

Not surprisingly, automobile manufacturers have been trying for ten years to reverse D’Amario. Many thought their goal would be accomplished in the 2011 legislative session. Although a measure was proposed that would have satisfied the manufacturers, amendments filed on the Senate Floor by Senator David Simmons (R) and passed by both chambers of the Legislature prevented the crashworthiness doctrine from being eliminated altogether in Florida. The bill that passed, which does modify D’Amario, revised Florida Statute 768.81.

The revised 768.81(3)(b) provides as follows:

In a products liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them. The jury shall be appropriately instructed by the trial judge on the apportionment of fault in products liability actions where there are allegations that the injuries received by the claimant in an accident were enhanced by a defective product. The rules of evidence apply to these actions.

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hummer.jpgFlorida’s dangerous instrumentality doctrine imposes vicarious responsibility upon the owner or other possessor of a motor vehicle who voluntarily entrusts it to another for any subsequent negligent operation which injures a member of the traveling public. Jackson v. Hertz Corporation, 590 So.2d 929, 937. See Kraemer v. General Motors Acceptance Corp., 572 So.2d 1363 (Fla. 1990); Susco Car Rental Sys. v. Leonard, 112 So.2d 832 (Fla. 1959); Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947); Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920); Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975 (1917).
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In January of this year, President Obama signed a $1.4 billion overhaul of the nation’s food safety system. It is the first major overhaul of the food safety system since the 1930s. It comes on the heels of several deadly outbreaks of E. coli and salmonella poisoning in peanuts, eggs, and produce in the past few years, and aims to reduce the estimated – by the CDC – 48 million Americans who are sickened every year by food borne illness. (Of that, 180,000 are hospitalized and 3,000 die.) The law emphasizes prevention through increased inspections of U.S. and foreign food facilities, allowing the FDA to order the recall of tainted food, the imposition of new safety regulations on producers of the highest-risk fruits and vegetables, and requiring processors to provide detailed food safety plans to the FDA. (The law exampts meat, poultry and processed eggs, since they are regulated by the Agriculture Department. Also exempt are some small businesses.)

Only right-wing Republicans would oppose such legislation … and they do.
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legal document.jpgJob one of lawyers who represent individuals who have suffered personal injuries and/or property damage losses is to maximize the client’s recovery. The conventional thinking is that the recovery in every case is limited by the measure of actual damages, in other words, the recovery cannot exceed the loss.

Surprisingly, this is a rule that can be broken … with a proviso.

In Despointes v. Florida Power Corporation, 2 So.3d 360 (2nd DCA 2008), a person who was paid $224,567.66 by her own insurance company, CIGNA, for fire damage, was able to pursue a claim for damages, through her estate, against a third party for the amount already recovered from the insurance company.

The device used for this opportunity was an assignment from CIGNA of its subrogation/reimbursement right.

The CIGNA policy provided for the right of subrogation against any third party recovery. This right authorized CIGNA to pursue a claim against the third party responsible for causing the house fire for the amount it paid to its insured. Instead of pursuing the claim, it assigned the right to its insured.

Thereafter, the insured sued the third party, Intermatic, alleging that the fire had been caused by a defective surge protector. The Defendant argued that the insured was not allowed to recover the money she had already received.

The trial court agreed. The Second District Court of Appeal did not.
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ankle x-ray - hardware.jpgThe most important job of every personal injury lawyer is to maximize the amount of his or her client’s monetary recovery. The damage elements of every personal injury case are “pain & suffering” and economic damages (which includes lost wages, loss of earning capacity, out-of-pocket expenses, and past and future medical expenses). The nature and extent of the injuries bear on every element of damages. Accordingly, effectively demonstrating the nature and extent of the injuries is a critical component in every personal injury case. Various methods are available.

Although medical illustrations, both generic and case-specific, are the traditional way of demonstrating injuries, they continue to serve a convincing role in presenting evidence in today’s high tech world. Generic illustrations are less costly and can be used in other cases, but may have less impact than case-specific demonstrations. For spine injuries, showing a summary of pain management injections is effective. The exhibit will visually show every date injections were administered, along with the location, size, and shape of each needle and syringe entering the spine. To have this chart made, the medical illustrator must be provided with the medical records containing the injections information or a summary detailing the information.
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Florida is one of only three states in the country that has yet to enact legislation requiring children six and older or too small for lap and shoulder belts to be placed in booster seats or integrated systems. A bill (Senate Bill 238) was proposed in the 2011 legislative session to close the gap, but failed to be enacted. Apparently, the Legislature considered it more important to benefit Corporate America, by re-allocating liability in crashworthiness cases, than protect its children.

Florida requires that children three and younger be restrained in a federally approved child restraint device consisting of a separate carrier or a vehicle-manufactured integrated child seat, and that children four and five-years old be restrained in a separate device, the integrated seat, or just the auto manufacturer’s seat belt. Florida Statute Section 316.613(1)(a).
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scales of justice.jpgFollowing the Casey Anthony verdict, many of my Facebook Friends posted attacks on the jury and the jury system. Pasted below are responses to those attacks that I posted to Facebook.

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Posted on July 5, 2011:
James Madison and Thomas Jefferson – ever heard of them? – would be sickened by all of the cynicism directed at the jury and the jury system. Unlike most here, they would be proud of the jury and the way the system worked. Hard to believe that grown adults are so willing to substitute their judgment, formed from the know-nothing talking heads on Fox, MSNBC, CNN, et al, for the considered judgment of 12 regular people who heard ALL of the admissable evidence and deliberated as a body to reach it’s verdict. Scary, really. Required viewing for those who think they know better than this jury: 12 ANGRY MEN, starring Henry Fonda. Also, read The Magna Carta (The Great Charter), Article 39 and Deuteronomy. At least learn a little something about the American justice system and its foundings before yapping.
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On the 4th of July, of all days, the following topic should be considered one of utmost importance.

The 7th Amendment to the United States Constitution guarantees the right to a trial by jury in civil cases.

Seventh Amendment of the US Constitution
“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.”

Our Founding Fathers considered the right essential to the preservation of liberty in America:

James Madison: “In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

Thomas Jefferson called civil jury trials, “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

In fact, the right to a trial by jury of civil suits dates back nearly 800 years, to the signing of the Magna Carta of 1215. Article 39 of the Magna Carta specifically guaranteed the right in both civil and criminal cases.

Pretty serious stuff.

Sadly, the 7th Amendment right it teetering on the brink of collapse under years of unrelenting political and legal warfare funded by Corporate America and fought by its groundtroops composed of lobbyists and so-called “conservative” politicians – in my view, the word “radical” more accurately describes the mentality of these politicians.

In the name of “economic efficiency,” the drug industry, financial institutions, manufacturers, and other entities for years have pushed “tort reform” – the enactment of laws specifically designed to provide immunity to wrongdoers at the expense of the 7th Amendment. Unfortunately, their propoganda, lies, and distortions have been accepted as truth by the very same people the 7th Amendment is designed to protect. A classic example of “We the People” being fooled into supporting measures that are against our own best interests.
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