Articles Posted in Personal Injury

maze1-300x225Personal injury lawyers have their work cut out for themselves. Besides having to deal with basic case issues of fault and damages, they are expected to resolve the liens held by hospitals operating in Miami-Dade County. (Depending on local laws, the principles addressed here may apply in other Florida counties.) As the hospitals do not compensate the lawyers for this bill collection work, it’s a great deal for them. (It sure beats selling the debt to bill collection agencies for pennies on the dollar.)

The lien is the right of a hospital to be reimbursed for its services from the proceeds of a judgment or settlement paid by the third party responsible for causing the patient’s injuries. This scenario arises in the context of personal injury cases where the injured party is compensated by the at-fault party for damages sustained.

Miami-Dade County’s lien law, Section 25C-2, Miami-Dade County Code, reads as follows:

[hospitals] shall be entitled to a lien for all reasonable charges for hospital care, treatment and maintenance of ill or injured persons upon any and all causes of action, suits, claims, counterclaims and demands . . . and upon all judgments, settlements and settlement agreements rendered or entered into by virtue thereof, on account of illness or injuries giving rise to such causes of action, suits, claims, counterclaims, demands, judgment, settlement or settlement agreement and which necessitated or shall have necessitated such hospital care, treatment and maintenance.

Liability insurance companies have learned to be careful with hospital liens. In Palm Springs Hospital, Inc. v. State Farm Mutual Insurance Company, 218 So.793 (Fla. 3rd DCA 1969), the insurance carrier was sued by the hospital for impairment of lien for failing to satisfy the lien from the settlement proceeds. To avoid this dilemma, some carriers include the hospital’s name on settlement and judgment checks. This is what happened in Marin v. Infinity Insurance Company, (Fla. 3rd DCA 2018) … and it resulted in a court battle.

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P1010046-300x225Our firm is presently involved in a personal injury action on behalf of a truck driver who sustained serious injuries when he was struck by a motor vehicle on the side of the northbound lanes of I-95, in an area of the highway known as a gore, while an employee of a roadside assistance company attempted to replace a blown tire on the chassis our client was hauling with his tractor. We have sued the roadside assistance company for failing to display proper warning lights and for undertaking the assistance in a dangerous location. (This photograph shows the assistance vehicle sent to the scene and its location at the time of the crash.) The Defendant has asserted two affirmative defenses in an effort to apportion fault to a non-party. Our co-counsel, superb trial lawyer Robert Tilghman, has prepared a motion for partial summary judgment on the two affirmative defenses. (Reproduced in this blog are portions of the motion. The names of the parties and the non-party have been removed.)

The non-party was the driver of a northbound vehicle that struck our client after first striking the left rear of the vehicle sent to perform the roadside assistance. The parties will never know what caused his vehicle to enter the gore area as he died after the subject accident before he could give a statement. He told fire rescue that he did not remember what happened and there were no eyewitnesses or physical evidence to explain why, when, or how the vehicle entered the gore or why the driver was unable to avoid striking the repair vehicle. We have been able to formulate upwards of twelve reasonable explanations, some of which would not constitute fault on the non-party driver, for the events leading to the collision.

We anticipate that Defendant intends to argue that the non-party driver consumed alcohol prior to the collision and that it was the effect of alcohol which caused the accident. However, Defendant cannot present admissible evidence of his intoxication or that alcohol was a proximate cause of the collision.

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It is not uncommon for minor children to be living with only one of their parents or neither. Since minors do not have the capacity to make various legal decisions, the question often arises as to who, in the above scenarios, does have that authority.

Custody law can be contentious and complicated. While it is beyond the scope of this blog to address the entire subject, the natural starting point is section 744.301, Florida Statutes.

Section 744.301(2) provides that parents, as the natural guardians of their children, have the authority to make legally binding decisions on behalf of their minor children in personal injury cases. However, the authority is not absolute.

When the parents are living together with the children, the decision making is shared jointly. It is a different story when the parents are divorced and living apart. Section 744.301(1) provides that “the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians.” 744.301(1). This makes it sound like the right to make binding decisions is determined solely by the status of “parental responsibility.” Not necessarily.

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scales-of-justice-300x203Forty plus years of misleading Big Business propaganda has left the American public with the false impression that bringing a personal injury lawsuit comes without risk to the plaintiff. People have come to believe, sometimes with righteous indignation, that most lawsuits are frivolous and result in the recovery of undeserved compensation without any negative consequences for falling short of the mark.

The truth tells a different story.

From defense attorneys to trial judges to deeply cynical juries to courts of appeal and rules and statutes, Plaintiffs seeking their day in court with the simple aim of being made whole for being wronged face a host of hazards and hurdles enough to challenge the courage, strength, and fortitude of the toughest among us.

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city-zone-945513-mIn response to a Complaint we recently filed involving a serious crash on Florida’s Turnpike, the Defendant asserted as an affirmative defense that our client, the Plaintiff, should not recover because she had the “last clear chance” to avoid the accident.

In the many personal injury cases our firm has handled, this is the first time we have had this doctrine asserted. We had to do legal research to understand, what, if anything, it meant in our case. What we learned is that the doctrine has not been applicable in Florida personal injury cases since 1973. Moreover, when it did apply years ago it was always used by Plaintiffs against Defendants, not by Defendants against Plaintiffs. Hence, the affirmative defense in our case is hogwash.

Prior to the Florida Supreme Court’s holding in Hoffman v. Jones, 280 So.2d 431 (Fla., 1973), Florida was a contributory negligence jurisdiction. Hoffman turned Florida into a comparative negligence (or fault) jurisdiction.

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barricadeWhile a recent Florida Supreme Court decision has leveled the playing field for injured workers in workers’ compensation cases — read Jeffrey P. Gale, P.A. // Another Jeb Bush Law Bites the Dust — a better remedy can sometimes be achieved through the civil justice system under negligence law principles.

Florida Statute 440.11 immunizes most employers and fellow-employees from being sued for simple negligence, limiting the remedies available to injured workers to those outlined in Chapter 440, Florida Statutes, Florida’s body of workers’ compensation laws.

‘”[S]imple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons . . ..”‘ Carraway v. Revell, 116 So. 2d 16, 22 (Fla. 1959) (quoting Bridges v. Speer, 79 So. 2d 679, 682 (Fla. 1955)).

The two jurisprudential systems, negligence and workers’ compensation, provide very different remedies to injured victims. One of the main differences is that the workers’ compensation system does not compensate for pain and suffering, while the negligence system does. (No Compensation for Pain & Suffering Under Florida’s Workers’ Compensation System.)

Chapter 440 is a no fault system for providing benefits. It was designed to assure  “the quick and efficient delivery of disability and medical benefits to an injured worker.” § 440.015, Fla. Stat. (2009). Even so, its shortcomings are many. Read these blogs:

In spite of these drawbacks, Florida Statute 440.11 usually bars other options.
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worker2The day after Jeb Bush suspended his run for the Republican presidential nomination, I read a quote in the Miami Herald from a South Carolina voter expressing dismay because she believed Bush was a good man who cared about disabled people. My immediate thought was, this woman does not know Jeb Bush … or at least the Jeb Bush who governed the state of Florida for eight years from 1999 to 2007. As Florida’s governor his policies were anything but sympathetic to disabled people.

Clear examples of his uncaring policies are contained throughout Chapter 440 of Florida’s Statutes, the body of laws that govern the state’s workers’ compensation system. At every opportunity, Mr. Bush pushed to weaken the rights and protections afforded injured workers.

This blog focuses on one example, workers’ compensation immunity.

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dollarsPrice gouging for medical services is the scourge of personal injury cases. Hospitals are the worst offenders.

By ambulance from the accident scene to admissions for surgery, accident victims wind up in hospitals. The hospital charges are always staggering.

The charges are phony, having no relationship to either costs or value. Average pricing at Florida hospitals is a minimum of 500 percent of Medicare allowable amounts (which amounts to roughly three to four times more than hospitals negotiate as reasonable rates with commercial health insurers).

The gouging is especially problematic in personal injury cases for the uninsured and those with large deductibles or unpaid charges. Large outstanding balances can stand in the way of resolving cases involving low policy limits or of questionable value because of causation issues.

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unemployedThe 1986 Immigration Reform and Control Act (IRCA) prohibits the employment of illegal aliens in the United States. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002). To accomplish this goal, the IRCA requires employers to verify the identity and eligibility of all new hires by examining specified documents, including social security account number cards, before they commence work. See generally § 1324a(b); see also Hoffman, 535 U.S. 137 at 148, 122 S.Ct. 1275.

Workers lose wages for various reasons. In Hoffman, for example, the employee was wrongfully terminated for engaging in union activities. More frequently, wages are lost because of work related injuries.

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Florida’s workers’ compensation system was created, in 1935, with the goal of providing benefits to injured workers without the delay of haviworker2ng to prove the accident was caused by the employer’s negligence. In exchange for this no-fault system, employers were granted immunity from being liable for negligence.

The system, however, did not afford absolute immunity. There was a time when employees who were able to demonstrate that an employer engaged in conduct which is substantially certain to result in injury or death, could pursue a civil remedy. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000).

While difficult, overcoming workers’ compensation immunity by establishing  substantial certainty was within reach.

In 2003, Governor Jeb Bush and the Florida Legislature put the chance of overcoming workers’ compensation immunity out of reach. New measures, in the form of Florida Statute 440.11, were instituted to make overcoming employer immunity virtually impossible.

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