Miscellaneous

June 30, 2011

Florida Law: Pre-Incident Waivers Precluding Actions Based on Subsequent Negligence

One would hope and expect in a society purporting to be civilized, that the negligence of any person or company could not be waived before it happened. Astonishingly, Florida law allows just that: pre-accident releases/waivers barring actions based on the subsequent negligence of the released party.

In other words, Florida law sanctions the equivalent of the Monopoly game, “Get out of Jail Free” pass to those whose wrongoing may injure or kill others.

Cognizant of the tremendous consquences of this law – for example, no hope of compensation for a catastrophically injured person – Florida courts have at least decided that contracts which purport to release or indemnify a party for its own negligence are looked upon with disfavor and will not be enforced unless the instrument clearly and specifically provides for a limitation or elimination of liability for such acts. University Plaza Shopping Center v. Stewart, 272 So. 2d 507, 511 (Fla. 1973). Moreover, it may be settled law that the word “negligence” must appear in the release. See, Bender v. Caregivers of America, Inc., 42 So.3d 893 (Fla 4th DCA 2010); Travent, Ltd. v. Schecter, 718 So. 2d 939, 940 (Fla. 4th DCA 1998); Witt v. Dolphin Research Ctr., Inc., 692 So. 2d 27, 28 (Fla. 3d DCA 1991); Rosenberg v. Cape Coral Plumbing Inc., 920 So. 2d 61, 66 (Fla. 2d DCA 2005); and Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987).
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June 26, 2011

Troubling Decline in Federal Jury Trials

by Jeffrey P. Gale, P.A.

Jury trials are at the very foundation of American participatory democracy. According to Alexis de Tocqueville, in Democracy in America, “The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties. I think that the practical intelligence and political good sense of Americans are mainly attributable to the long use that they have made of the jury in civil cases.”

The foundation is at risk.

This point was brought home by U.S. District Judge Gregory Presnell at a recent Federal Court Practice Committee’s meeting in Orlando, Florida. Judge Presnell expressed alarm at the precipitous decline in Federal jury trials. He noted that in the late 1960s, 11 percent of federal civil filings wound up in jury trials, while in 2009, that number had dipped to 1.2 percent. (In the U.S. Middle District of Florida, only 0.8 percent of civil filings were resolved by a jury in 2009.)

Expressing strong feelings about the importance of jury trials, Judge Pressner asked his audience, “Where in a government this complex – and with the difficulties and issues and problems – do you have a system where six or 12 people make a critical decision affecting people’s lives and fortunes?”

The reasons for the decline in civil jury trials at the federal – and the state level – include unfair arbitrary damage caps, mandatory binding arbitration, the creation of causes of action without the right to a jury trial, overly stringent gatekeeping on the part of judges to weed out cases perceived as being weak, and mandatory (although not binding) mediation.
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June 20, 2011

“Hot Coffee” – HBO to Air Documentary Exposing the McDonald’s Coffee Case Lies

by Jeffrey P. Gale, P.A.

In a previous blog, The Truth About the McDonalds Coffee Spill Case – Fallacy Debunked, I presented the honest facts about the infamous McDonald’s Coffee Spill case. Sadly, the truth bears little resemblence to the shameless lies spread by Corporate America.

Why would Corporate America lie about this case? Simple. To influence the American public to push for laws making it more difficult for individuals to hold Corporate America accountable for its negligent behavior. In other words, fool people into supporting laws that are harmful to their own and America’s best interests.

Corporate America saw the case, which involved the spilling of coffee and a large jury verdict, as the perfect vehicle for attacking the civil justice system. It figured that unknowing individuals would accept its lies and distortions without question, causing them to revolt against the very system that stands between them and total control by corporate interests. Frighteningly, they figured right. (Even seemingly well-educated people have fallen for the garbage. My rabbi wrongly used the case as the theme of his Yom Kippur sermon. When I called him on it days later, he made further stupid arguments to support his misguided position, unwilling and unable through years of propoganda to admit that he was wrong. He is now my former rabbi because I have chosen to worship elsewhere.)
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June 18, 2011

Medicare Set Asides in Personal Injury Liability Cases

by Jeffrey P. Gale, P.A.

There is much discussion taking place today concerning whether or not Medicare Set Asides are required in personal injury cases. The answer seems to be No, but the consequences of being wrong have many in the personal injury business, lawyers and insurance companies alike, greatly concerned.

The Medicare Secondary Payer Act of 1980 (“MSP”) was enacted to keep taxpayers from footing past and future medical expenses through Medicare that were provided through primary sources such as workers’ compensation insurance. Congress learned that Medicare was covering these expenses even though those receiving the benefits were also receiving compensation for the same benefits from primary sources.

Until 2010, the MSP’s main focus was on workers’ compensation cases. Injured workers were expected to reimburse Medicare and pay for future medical care related to their accidents from money received through workers’ compensation settlements. Although liability claimants were expected to reimburse Medicare for benefits paid, no issue was made with regard to future benefits.

In 2010, representatives from The Centers for Medicare and Medicaid Services (“CMS”), the federal agency responsible for administering Medicare and Medicaid (as well as a host of other federal programs ) within the Department of Health and Human Services, began suggesting that the MSP applied to future medical services in liability cases. It was pointed out that statutory language with regard to workers’ compensation and liability cases was the same. Speaking about liability cases, Barbara Wright of CMS stated: “So where future medicals are a consideration in arriving at the settlement, appropriate arrangements should be made for appropriate exhaustion of the settlement before Medicare is billed for related services.”

Although the statement was made at a town hall meeting, instead of by formal agency rule making like the Code of Federal Regulations, many concerned parties began to believe that MSA’s were now required in liability cases. Whether this statement and others that have followed have the same force of law as formally issued regulations is creating tremendous confusion and may well be a subject of future litigation.
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June 15, 2011

“Miami Vice” Star Don Johnson Awarded $23.2 Million by Jury

by Jeffrey P. Gale, P.A.

Don Johnson, known as “Sonny Crockett” in the 1980s (84-89) blockbuster television show “Miami Vice,” was awarded $23.2 million by a Los Angeles jury. Johnson sued production company Rysher Entertainment for a share of the profits from the television series, “Nash Bridges” (1996-2001) (co-star: Cheech Marin, of Cheech & Chong fame), in which he played the role of a fictional San Francisco police detective. The award was based on profits accrued to date from the show, which is still being shown in more than 40 countries around the world.
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June 12, 2011

Case Law Summary of Florida Employer v. Independent Contractor Liability

by Jeffrey P. Gale, P.A.

McCall vs. Alabama Bruno’s, Inc., 647 So.2d 175 (Fla. 1st DCA 1994): Florida follows the general rule that the employer of an independent contractor is not liable for the contractor’s negligence because the employer has no control over the manner in which the work is done, except when one of three exceptions apply. Those exceptions involve:

Negligence in selecting, instructing or supervising the contractor;
Non-delegable duties arising out of some relation toward the public or the particular plaintiff;
Work which is specially, peculiarly, or “inherently” dangerous.

Peculiar does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk, but instead refers to a special recognizable danger arising out of the work itself. In order for the vicarious liability rules to apply, it is not essential that the work which the contractor is employed to do be in itself an extra-hazardous or abnormally dangerous activity, or that it involve a very high degree of risk to those in the vicinity. It is sufficient that it is likely to involve a peculiar risk of physical harm unless special precautions are taken, even though the risk is not abnormally great. A “peculiar risk” differs from common risks to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions. Restatement (2d) Torts Sect. 416. Rules imposing vicarious liability on employers for the acts of independent contractors arise “in situations where, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor” and it is commonly stated that “the employer is under a duty which he is not free to delegate to the contractor.” Nondelegable duties have been found under Florida law to arise out of “inherently dangerous activity,” activity involving “inherently dangerous elements,” or out of the creation of an “inherently dangerous condition.”

Webb vs. Priest, 413 So.2d 43 (Fla. 3rd DCA 1982): The general rule in Florida is that an owner is not liable for the acts of an independent contractor except when (a) the activity is inherently dangerous (see Ferguson vs. Westinghouse, 408 So.2d 659 (Fla. 3rd DCA 1981)); (b) the owner/employer had contractually assumed responsibility (Levitz vs. Continental Equities, 411 So.2d 221 (Fla. 3rd DCA 1982)); (c) there is legally imposed responsibility (Concord Florida vs. Lewin, 341 So.2d 242 (Fla. 3rd DCA 1977)); (d) the owner/employer knew or had reason to know that the independent contractor would not perform in a satisfactory manner (Williams vs. Wometco Enterprises, 287 So.2d 353 (Fla. 3rd DCA 1974)); (e) where the independent contractor had apparent authority to act on behalf of the owner/employer (Thomkin Corp. vs. Miller, 156 Fla. 388, 24 So.2d 48 (Fla. 1945).
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June 11, 2011

Florida Hospitals Refuse to Bill Medicare in Civil Cases

by Jeffrey P. Gale, P.A.

Once a hospital is paid by Medicare, it is barred from balance-billing the patient except for a small co-payment. Because Medicare pays less than “reasonable value” for services charged by Florida hospitals, where a hospital believes that the patient is likely to receive a monetary recovery in a personal injury case, it may refuse to bill Medicare. Hospitals do this hoping to receive more from personal injury cases than from Medicare.

Unfortunately, this conduct is legal. There appear to be no rules, statutes or case law barring this conduct.

The law is less clear with regard to Medicaid. Some believe that Medicaid must be billed, while others do not. As with Medicare, hospitals are not allowed to balance-bill after being paid by Medicaid.

Where Medicare or Medicaid pay and a personal injury recovery follows, both will be reimbursed from the recovery. Accordingly, neither (namely, taxpayers) loses out.

Hence, where hospitals refuse to bill Medicare, the consumer/patient ends up paying more.
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June 10, 2011

Florida Governor Rick Scott Vetoes Funds to Help Poor Families With Civil Legal Difficulties

by Jeffrey P. Gale, P.A.

In the 2011 legislative session, the Republican-dominated Legislature approved $1,000,000 in funding for 25 legal aid organizations that reached into all 67 Florida counties. On May 26, Gov. Rick Scott vetoed the funding.

It will be only the second time in 10 years that Florida will not be providing any state funds to help poor families with their civil difficulties.

According to data, in fiscal year 2009-2010 $1,000,000 in state funding to the 25 legal agencies was used to assist with 3,848 cases, including 1,435 family law cases, 1,111 cases seeking access to federal benefits, 191 domestic violence cases, and 33 elder abuse cases. In addition, the grant money paid for educational programs that reached 5,979 people.
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June 9, 2011

Arbitration: Who Decides if an Arbitration Agreement is Unconscionable?

by Jeffrey P. Gale, P.A.

In Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772 (2010), the U.S. Supreme Court considered whether, under the Federal Arbitration Act (FAA or Act), 9 U.S.C. §§ 1-16, a district court may decide a claim that an arbitration agreement is unconscionable where the agreement explicitly assigns that decision to the arbitrator.

In a 5-4 split decision, the Court answered the question in the negative.

Antonio Jackson had filed a discrimination action against his employer. The employer moved to dismiss the complaint and compel arbitration, arguing that Mr. Jackson, in pre-employment documents, had agreed to arbitrate all “past, present or future” disputes arising out of Jackson’s employment with Rent-A-Center, including “claims for discrimination” and “claims for violation of any federal… law.”

Jackson opposed the motion on the ground that “the arbitration agreement in question is clearly unenforceable in that it is unconscionable” under Nevada law. Rent-A-Center responded that because Jackson had agreed to let the arbitrator make that decision, in a clause referred to as a “delegation provision,” the District Court was not authorized to make the decision. The provision reads as follows:

“[t]he Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.”

The District Court agreed with the employer. That decision was appealed to the Court of Appeal for the Ninth Circuit, which ruled in favor of Jackson. In turn, the employer petitioned the U.S. Supreme Court to accept the case on certiorari, which it did.
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June 4, 2011

Medical Malpractice (Amendment 7): Florida Hospitals Thumb Noses at Voters and Supreme Court

by Jeffrey P. Gale, P.A.

In 2004, more than 80-percent of Florida voters passed Amendment 7, technically Article 10 Section 25 of Florida’s Constitution, commonly known as the “Patients’ Right to Know Act.” The amendment provides that “patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”

Not surprisingly, a number of hospitals quickly lined up to challenge the scope of the voter-approved constitutional amendment. In essence, they sought to keep from having to produce documents relating to the investigation of adverse medical incidents, and in one of the cases, relating to the selection, retention, or termination of a doctor accused of medical negligence.

In 2008, The Florida Supreme Court, in Florida Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla., 2007), ruled against the hospitals, declaring that the shroud of privilege that existed in Florida with regard to medical records had been lifted by Amendment 7 to “allow patients to better determine from whom they should seek health care, evaluate the quality and fitness of health care providers currently rendering service to them, and allow them access to information gathered through the self-policing processes during the discovery period of litigation filed by injured patients or the estates of deceased patients against their health care providers.” (The quoted language was used by the Supreme Court from the written opinion of Judge Sawaya in Florida Hospital Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. 5th DCA 2006).
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