Personal Injury

June 12, 2025

Jeffrey P. Gale, P.A. // Mental and Nervous Injuries Under Florida Law: The Impact Rule and Workers’ Compensation

Florida’s liability and workers’ compensation systems take a cautious approach when it comes to awarding benefits for mental and emotional injuries. This caution stems from a fundamental public policy concern: without clear limits, allowing recovery for purely emotional harm could lead to a flood of speculative or fabricated claims. As the Florida Supreme Court explained in R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995), this concern is central to the application of what’s known as the “Impact Rule.”

What Is the Impact Rule?

Under the Impact Rule, a plaintiff cannot recover damages for emotional distress caused by another’s negligence unless the emotional distress arises from physical injuries sustained during a physical impact. This requirement is firmly rooted in Florida case law. See Southern Baptist Hosp. of Fla. v. Welker, 908 So. 2d 317 (Fla. 2005).

The rule applies to both common law personal injury claims and statutory workers’ compensation claims. It sets a high bar for plaintiffs and claimants seeking compensation for psychological harm, requiring a demonstrable link to physical trauma.

June 11, 2025

Jeffrey P. Gale, P.A. // Understanding Florida’s Rear-End Collision Presumption

by Jeffrey P. Gale, P.A.

In 1958, Florida joined a small number of states in adopting a legal presumption of negligence against trailing drivers involved in rear-end motor vehicle collisions. This shift was established in McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958), and later endorsed by the Florida Supreme Court in Bellere v. Madsen, 114 So.2d 619 (Fla. 1959).

The Legal Rationale

The presumption is rooted in practical evidentiary concerns. Typically, plaintiffs bear the burden of proving all four elements of negligence: duty, breach, causation, and damages. But in rear-end crashes, plaintiffs often know they were hit from behind but have no access to the circumstances leading up to the impact—leaving gaps in proof for breach and causation.

To address this, Florida courts created a rebuttable presumption: if a rear-end collision occurs, the trailing driver is presumed negligent. This shifts the burden of production to the defendant, who must offer a “substantial and reasonable explanation” to overcome the presumption. If successful, the case proceeds to the jury without the benefit of the presumption. See Gulle v. Boggs, 174 So.2d 26, 28–29 (Fla. 1965); Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977).

Originally developed during Florida’s contributory negligence era—where any negligence on the plaintiff’s part barred recovery—the rule had significant weight. Under today’s comparative fault framework, however, negligence is apportioned, and partial fault does not automatically defeat a claim. See Shayne v. Saunders, 176 So. 495 (Fla. 1937); Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA 1968), quashed on other grounds.

June 10, 2025

Jeffrey P. Gale, P.A. // Why Florida’s Sovereign Immunity Cap Defeats Accountability and Justice

by Jeffrey P. Gale, P.A.

One of the central purposes of a strong civil justice system is to promote public safety by holding wrongdoers financially accountable. When negligent individuals or corporations know they may face significant financial liability, they are far more likely to act responsibly. Short of criminal prosecution, few things are more effective at incentivizing safe conduct than the threat of losing money.

Sovereign immunity, however, undercuts this principle. Rooted in the old-world doctrine that “the king can do no wrong” (Latin: Rex non potest peccare), sovereign immunity was designed to shield monarchs from legal consequences. Today, this concept survives in modern constitutional monarchies like the United Kingdom, Japan, and the Netherlands. Unfortunately, it has also made its way into American law—particularly in states like Florida.

Florida’s Version of Sovereign Immunity

Florida has adopted a modified form of sovereign immunity for civil cases, including personal injury and wrongful death claims. Under Florida Statute § 768.28(5)(a), the state and its agencies are shielded from full liability. Compensation for damages caused by a government entity is capped at $200,000 per individual and $300,000 per incident, regardless of how catastrophic the harm may be.

So, whether someone suffers minor injuries or a family loses a loved one due to government negligence, the total financial exposure for the state remains the same. This cap applies even if a jury awards millions in damages based on compelling evidence and clear fault.

June 8, 2025

Jeffrey P. Gale, P.A. // Understanding Workers’ Compensation Liens and Uninsured Motorist Claims Under Florida Law

by Jeffrey P. Gale, P.A.

It is not uncommon for employees to be injured in motor vehicle accidents while acting within the course and scope of their employment. Such incidents frequently implicate multiple layers of insurance coverage.

Regardless of fault, injured employees may be eligible for benefits including workers’ compensation, Personal Injury Protection (PIP), and health insurance (including Medicare). Workers’ compensation and PIP are considered primary over Medicare, meaning they must pay first. If Medicare does make a payment, it typically expects to be reimbursed from any subsequent workers’ compensation or personal injury recovery.

When an injured employee is not at fault, they may seek damages through a third-party civil action against the negligent driver and, if different, the vehicle’s owner. Recovery in these cases typically comes from the tortfeasor’s and owner’s bodily injury (BI) liability insurance or, if applicable, personal assets.

In many cases, however, the at-fault party either lacks BI coverage altogether or carries insufficient limits. Florida law addresses this risk through uninsured/underinsured motorist (UM/UIM) coverage, governed by § 627.727, Florida Statutes. This optional coverage is designed to fill the gap left by the inadequacy—or absence—of BI insurance.

Per § 627.727(1), the purpose of UM/UIM coverage 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.”

The Workers’ Compensation Lien Under § 440.39

Section 440.39, Florida Statutes, grants workers’ compensation (WC) carriers an equitable lien on any judgment or settlement obtained by the injured worker from a third-party tortfeasor. This lien allows the carrier to recover benefits previously paid out, including indemnity and medical expenses.

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 29, 2025

Jeffrey P. Gale, P.A. /// Personal Injury Liability Cases — The Perils of Ignoring Medicare’s Future Interest

by Jeffrey P. Gale, P.A.

Our law firm handles both workers’ compensation and personal injury cases, claimant’s/plaintiff’s side only. For years we have been dealing with Medicare Set-Asides (MSA) in our workers’ compensation cases. We have not been doing it in our personal injury cases. It may be time to start.

A Medicare Set-Aside is a legal device used to make sure Medicare covers future medical expenses associated with accident-related injuries.

When Medicare began in 1966, it was the primary payor for all claims except for those covered by Workers’ Compensation, Federal Black Lung benefits, and Veteran’s Administration (VA) benefits. In 1980, Congress passed legislation to expand the exception list to include the following plans:

Liability insurance plans (automobile, premises)
No Fault (PIP)
Self-Insured

All of these plans, rather than Medicare, are considered primary payors of medical expenses covered by the respective policies. In 2007, Congress passed legislation imposing reporting requirements on primary payors. The requirements, which involve furnishing Medicare with claim-related information, are laid out in section 111 of the Medicare, Medicaid, and Schip Extension Act of 2007. The purpose of the requirements is to keep Medicare from paying for medical care that is otherwise the responsibility of primary payors. Congress has decided that Medicare, which is a taxpayer-funded program, should not bear primary responsibility for medical expenses covered by insurance policies and self-insureds.

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 9, 2025

Jeffrey P. Gale, P.A. /// Scrutinize Workers’ Compensation Carrier’s Paylog to Reduce WC Lien Amount

by Jeffrey P. Gale, P.A.

It is not uncommon for an individual hurt in a work-related accident, for which workers’ compensation benefits are due, to also have a liability case against a negligent third party. Where compensation is recovered in both cases, the injured party may have to give some of the third-party recovery to the workers’ compensation insurance carrier to satisfy its workers’ compensation lien. See section 440.39(2), Florida Statutes.

There is a formula, commonly referred to as the Manfredo Formula, used for establishing the amount of the lien recovery. However, before getting to the formula, it is necessary to determine the amount of recoverable expenditures to plug into the formula.

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.