Articles Posted in Personal Injury

law-booksDuring every initial workers’ compensation client interview, I spend time explaining that Florida’s workers’ compensation system does not pay benefits for non-economic damages such as pain and suffering. Most people don’t know this. I reiterate the point during various stages of the case, especially as we approach settlement discussions. Nothing prevents fair and reasonable settlements more than expectations based on misapprehensions of the law.

The statutory authority for this limit on non-economic damages in workers’ compensation cases is found in Florida Statute 440.11(1):

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death….

The “at law” provision encompasses non-economic damages, and the limitation is commonly referred to as “workers’ compensation immunity.” Injured workers bound by this provision are limited to receiving medical and indemnity benefits through the workers’ compensation system contained in Chapter 440 of Florida’s statutes.

“[A]t law” non-economic damages are available in personal injury cases. A key element of every personal injury case is that the harm resulted from, at a minimum, another person’s or entity’s negligence. 440.11 bars personal injury claims against co-workers and employers for mere negligence. This is “workers’ compensation immunity.”

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dollarsThe competition to advance money to those injured in accidents is fierce. The reason for the fierce competition is the potentially high rate of return on the investment.

Numerous companies, some large with a national presence, engage in the competition. Because their only security is the injury case itself (workers’ compensation and personal injury), which gives rise to the term “non-recourse funding advance“, the companies are not bound by Florida’s usury laws limiting interest rate charges. The rate can be multiple times over the 18% limit allowed in Florida. In fact, the interest rates are so high that the repayment amount can quickly double and triple the principal.

Advance companies are barred from foreclosing on real property or seeking repayment through wage garnishment. Their sole recourse for repayment is the case itself. If the case fails altogether or the recovery is not enough to repay the advance in full, it’s tough luck for the company. Given the precarious nature of accident cases, this is a real risk. Cases can “Go South,” so to speak, for a variety of reasons.

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cemetery1It is the job of every injury lawyer to maximize the client’s recovery. Sometimes when a person is hurt at work, more than one remedy is available. Workers’ compensation is one remedy. Civil law is another.

Florida’s workers’ compensation laws do not allow for the recovery of noneconomic damages such as pain and suffering. Workers’ compensation covers only authorized medical expenses and a defined period of lost wages. Noneconomic damages are not allowed. Civil remedy damages include economic damages such as medical expenses and lost wages as well as noneconomic damages.

Florida Statute 440.11 provides immunity to employers and their employees from civil remedy actions. There are exceptions to this rule. The exceptions are outlined in 440.11. The employer loses its immunity if it fails to maintain the workers’ compensation security required by Chapter 440 or commits an intentional tort. Section 440.11(1)(b) describes the fellow-employee exceptions:

Fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment. (Italics added.) 

In Moradiellos v Gerelco Traffic Controls, Inc., 176 So.3d 329 (Fla. 3rd DCA 2015), Mr. Moradiellos was killed in a construction site incident caused by the negligence of a subcontractor’s employee. Employees of construction subcontractors typically also get the 440.11 workers’ compensation immunity. The decedent was employed by the general contractor.

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dollarsCompanies make billions of dollars leasing and renting their motor vehicles. You’d think they’d have some corresponding corporate responsibility to compensate individuals injured through no fault of their own by the negligent operation of their vehicles. They don’t.

The Florida Legislature once believed they did. They may still feel this way, but its will has been overridden by Federal law.

While section 324.021(9), Florida Statutes requires rental and leasing companies to maintain a substantial minimum amount of liability insurance on their vehicles operated in the state, it has been superseded by 49 U.S. Code Sec. 30106, also known as the Graves Amendment, which was enacted into law in 2005.

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car-insurance-policyFlorida liability insurance policies often provide coverage to many individuals, including those not named in the policy. For example, the standard Florida motor vehicle policy will insure vehicle owners and unlisted permissive users. This was the scenario in Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16 (Fla. 4th DCA 2006).

Insurance companies are obligated under Florida law to act in good faith and with due regard for every insured’s interests. Boston Old Colony Insurance Company v. Gutierrez, 386 So.2d 783 (Fla. 1980). Under this duty, carriers must give fair consideration of any settlement opportunity and settle the claim when it can and should do so. Powell v. Prudential Property & Casualty Ins. Co., 584 So. 2d 12, 13 (Fla. 3rd DCA 1991).

In Contreras, a permissive user struck and killed a pedestrian while driving at a high rate of speed after consuming alcohol. Both the owner of the vehicle and the permissive user were covered under a U.S. Security motor vehicle liability insurance policy. Coverage under the policy for wrongful death was limited to $10,000.

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Football-300x200One 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.

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motorwayThe law disfavors windfall recoveries and insurance carriers are always seeking to be the beneficiaries of this public policy. One way carriers seek to benefit from this policy is by reducing jury verdicts by amounts recovered in damages from other sources. This is known as “Setoff.”

Uninsured and underinsured motor vehicle coverage is an optional form of insurance provided in motor vehicle insurance policies “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.” Section 627.727(1), Florida Statutes.

The statutory section contains the following setoff language:

Joanis-300x263What began as a product liability investigation, ended in a $2,000,000 personal injury settlement against the owner of an altered riding lawnmower (pictured).

Our client lost his right leg when run over by the lawnmower he was operating for his employer. Initially thinking that the mower was owned by the employer, which would give the employer workers’ compensation immunity, we set our sights on a product liability case as the only way to secure a civil remedy for our client.

We quickly discovered that any products liability case was barred by Florida’s Statute of Repose. We also learned that our accident was caused by a post-manufacture alteration to a safety feature.

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P1010047-300x225We 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. 

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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.

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