Articles Posted in Personal Injury

by

Fault (or negligence) is always an issue in Florida motor vehicle accident personal injury cases. For an individual to be successful in claiming damages against another party, the claimant has the burden of proving that the other party caused the accident.

In some cases, proving fault is an easy matter. In others, the issue will be hotly contested. In those cases, the plaintiff – the party seeking damages – needs evidence to prove her or his case. One place to look (for evidence) is in the traffic court records.

In most Florida motor vehicle accidents, an investigating law enforcement officer will issue a traffic infraction/ticket to one or more of the involved parties. The ticket can be an expression of the investigating officer’s opinion with regard to fault. For example, a driver may be ticketed for following too closely or for failing to yield the right of way.

Although the traffic infraction itself is not admissable as evidence of guilt in a civil case arising out of the accident, the defendant’s response to the traffic charge may be.

With a few exceptions, Florida Statute Section 318.14(4)(a) allows any person charged with a noncriminal traffic infraction to pay the civil penalty by mail or in person without the effective admission of guilt being used as evidence in any other proceedings. “[O]ther proceedings” includes a civil action arising out of a traffic accident.

For purposes of motor vehicle accidents, the most important exceptions to 318.14(4)(a) are contained in Florida Statute 318.19, which contains a list of traffic infractions requiring a mandatory hearing. Those infractions are:

  1. Any infraction which results in a crash that causes the death of another;
  2. Any infraction which results in a crash that causes “serious bodily injury” of another as defined in s. 316.1933(1);
  3. Any infraction of s. 316.172(1)(b);
  4. Any infraction of s. 316.520(1) or (2); or
  5. Any infraction of s. 316.183(2), s. 316.187, or s. 316.189 of exceeding the speed limit by 30 m.p.h. or more.

Unlike the allowance contained in 318.14, a guilty plea in one of the 318.19 exceptions can be used as evidence in any other proceedings, including a civil case for damages. (The record of the plea is admitted, not as establishing the fact [of fault], but as a deliberate declaration or admission of the party himself that the fact is true. Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216, 218 (Fla., 1967).)
Continue reading

by

law books.jpgIn my opinion, the most important Florida workers’ compensation case of all time is Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla., 2005). Aguilera made it clear that workers’ compensation insurance carriers and adjusters are not immune from being sued for the tort of intentional infliction of emotional distress where their conduct in handling a claim is more than simply bad faith or a breach of contract, but where the conduct is intentional and outrageous. What this means is that carriers and adjusters can be sued in circuit court for damages caused by outrageous conduct.

The Aguilera decision reinstated a lawsuit, which had been dismissed by a lower appellate court, the 3rd DCA, brought by an injured worker against the workers’ compensation carrier and claims adjuster. Although a confidential settlement was reached in the case, word on the street is that the case settled for in excess of one million dollars. Given the damage caused by their outrageous conduct, this was a small price to pay.

This Florida Supreme Court decision has gotten the attention of workers’ compensation insurance companies and their claims adjusters. No longer can claims be handled with complete indifference and a lack of regard for the health, safety, and welfare of injured workers without consequence. This is not to say that injured workers get everything they want. This is far from the case. There is still room for legitimate disputes. What the decision does mean is that there is no place in the workers’ compensation system for mean-spirited claims handling.

UNDERLYING FACTS:

  • On April 21, 1999, Aguilera was struck by a forklift and pushed against a pallet. He suffered immediate injuries and was rushed to the emergency room. Testing performed in the ER showed blood in Aguilera’s urine.
  • Subsequently, Aguilera began to complain of kidney and bladder pain.
  • On May 24, after two physicians examined him and concluded that he could not return to work, Aguilera’s attorney requested that he be examined by a board certified urologist.
  • The workers’ compensation insurance carrier denied authorization of the urologist, asserting that Aguilera’s injury was not work related.
  • On June 17, 1999, the insurance carrier was again notified that urological care was now needed on an emergency basis because Aguilera’s urine had begun to smell like feces.
  • On June 21, Aguilera was advised that his workers’ compensation benefits were being terminated as of July 9, 1999, notwithstanding the report of two doctors, including the opinion of the insurance carrier’s own doctor, that he should not return to work.
  • On June 25, 1999, the insurance company intervened and blocked Aguilera’s receipt of medication prescribed by the hospital emergency room doctor for his urinary condition.
  • On June 30, the carrier again denied authorization of emergency medical care for the urinary problems, claims it was not medically necessary.
  • On July 7, 1999, Aguilera’s treating doctor advised the carrier that his need for medical care was urgent and that his condition was deteriorating.
  • On July 9, 1999, the carrier’s own doctor issued prescriptions for various urinary tests.
  • On July 30, 2009, the adjuster intervened and simply unilaterally cancelled some of the medical testing.
  • Testing that was ultimately done revealed that Aguilera had a fistula, a hole in his bladder.
  • On August 6, 1999, Mippy Heath became the new insurance company case manager. She was specifically told by Aguilera’s attorney that she should have no direct contact with Aguilera. She also agreed that no intervention with Aguilera’s care would be attempted.
  • On August 19, Aguilera’s attorney alerted the insurance carrier that the injured employee was in need of emergency care for the fistula. Heath refused the authorization and insisted on a second opinion.
  • On August 25, Heath secretly appeared at the physician’s office for Aguilera’s appointment. She urged Aguilera to lie to his attorney that she has not appeared at his doctor’s appointment.
  • Subsequently, Heath insisted that Aguilera submit to the administration of invasive tests that were not only painful but also contraindicated by his then-present medical condition. The insurance company then proceeded to use Aguilera’s refusal to submit to the tests as a basis to justify a refusal and denial of his then needed critical, surgical treatment.
  • By November 4, 1999, Heath, the case manager, and a nurse practitioner also employed by the insurance carrier had changed positions and agreed that Aguilera needed immediate hospitalization for surgery. However, the insurance carrier’s adjuster again intervened and overruled the decision of medical personnel simply because he wanted a second opinion from a general surgeon. Notwithstanding this intervention, the insurance carrier did not follow its own position and authorize Aguilera to consult with a general surgeon, but instead again changed course and sent Aguilera to a gastroenterologist. At this point in time, Aguilera had allegedly been urinating feces and blood for over six months.
  • Aguilera’s ultimate surgery, the need for which had been diagnosed as an emergency as early as June of 1999, was not finally authorized or approved until March 22, 2000. By this time, according to the allegations, Aguilera had been urinating feces and blood for over ten months.

Florida’s workers’ compensation laws provide employees limited medical and wage loss benefits, without regard to fault, for losses resulting from accidental workplace injuries. The carrier’s failure to provide benefits in a timely manner or at all may result in the assessment of minor monetary penalites and interest. However, the workers’ compensation system does not have a mechanism for making carriers/adjusters accountable for serious injuries caused by outrageous claims handling.

In exchange for not having to prove fault for losses resulting from accidental injuries, employees have relinquished their right to seek common law recovery from the employer for those injuries. This concept is commonly known as “workers’ compensation immunity.” (See Florida Statute 440.11.)
Continue reading

by

law books.jpgA statute of limitation is an enactment in a common law legal system that sets forth the maximum time after an event that legal proceedings based on that event may be initiated. Most people are familiar with the concept.

Far less familiar to the general public, and even to some lawyers, is the legal concept known as statute of repose. Like a statute of limitation, a statute of repose (sometimes called a nonclaim statute) limits the time period in which a civil action may be instituted.

A products liability case is a legal action for injuries founded on the defective design, manufacture, distribution, or sale of personal property. Examples of products found to be defective are tires, motor vehicles, drugs, and surgical hardware. In Florida, defective products cases are subject to a statute of limitation and a statute of repose.

The statute of limitation in Florida with regard to injuries caused by defective products is four years. (Florida Statute 95.11(3)(e)). (Caveat: When death results from a defective product, Florida’s Wrongful Death Act imposes a two year statute of limitations.) This means that a lawsuit founded on a defective product must be filed within four years or two years of when it is known or should have reasonably known what caused the accident.

Sometimes, however, the statute of repose effectively limits the time allowed under the statute of limitation and, in some instances, bars altogether a claim from being brought.

An actual case example will help illustrate this point:

Our law firm was recently hired by a gentleman who was severely injured by a defective forklift. Through discovery conducted in his workers’ compensation case, we learned that the manufacturer originally sold the forklift in 1996, more than fourteen years before the accident.

Even though we were prepared to file a products liability complaint well within the two year statute of limitation period, we were prevented from doing so by the statute of repose.
Continue reading

by

No type of insurance coverage is required to lawfully operate a motorcycle in Florida. The owner of a motorcycle can obtain a license plate and registration without any coverage. This is different than the law with regard to cars and trucks. The owner of either of those types of motor vehicles must, at a mimimum, have Personal Injury Protection (PIP) and Property Damage – Liability insurance to obtain a plate and registration. (PIP is no-fault coverage and can pay the policy holder and a few others up to $10,000 for medical benefits and lost wages, while PD – Liability covers property damage to the other vehicles.)

However, in the event of an accident resulting in death or personal injury, if the uninsured motorcyclist or car/truck owner with only PIP/PD is charged with causing the accident, his/her drivers license and all vehicle registrations will be suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) of the Florida Statutes. Taking it one step further, these consequences will also result to the inadequately insured owner even if he/she was not operating the vehicle, if the accident was caused by a permissive user. This is because Florida considers vehicles used on its roads and highways to be dangerous instruments, subjecting its owners to the same liability for accidents as the permissive operators.
Continue reading

by

As our law firm has an expertise in workers’ compensation and personal injury cases, we are frequently asked to explain to our clients and other lawyers the differences between the two. Although both types of cases involve bodily injuries, they have little else in common.

With rare exception (see Florida Statute 440.11), the remedies available against employers for job related accidents are controlled by Chapter 440 of the Florida Statutes, which is the body of law devoted to workers’ compensation cases. Personal injury cases are controlled by different statutes and case law. The differences are significant.

THE MAIN DIFFERENCES:

  • Negligence. As a legal concept, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. It is often difficult to prove negligence. Whereas proving negligence is not required in workers’ compensation cases, it is an essential element of every personal injury case except those involving strict liability.
  • Compensation for Pain and Suffering. Because workers’ compensation claimants are relieved of the heavy burden of having to prove negligence, the Florida Legislature, as a trade-off, does not allow them to be compensated for pain and suffering. In contrast, personal injury claimants can be compensated for pain and suffering. This difference is easily the most difficult concept for our workers’ compensation clients to understand. It is counter-intuitive. We spend a significant amount of time discussing this concept with all of our workers’ compensation clients.
  • Medical Benefits. Medical benefits are furnished to injured workers pursuant to the workers’ compensation system. It is a lousy system for injured workers (see this blog), with the biggest negative being that employers and their insurance carriers control the selection of all medical providers. By contrast, personal injury claimants do not have automatic medical benefits; claimants must fend for themselves in obtaining medical care. PIP (motor vehicle accidents), health insurance, and Medicare/Medicaid are the main sources sometimes available to cover the expense. It is more difficult for the uninsured. Arrangements can sometimes be made through the lawyer for the provision of medical care. In theory, the personal injury claimant is supposed to be compensated at the end of the case for past and future medical expenses.
  • Lost Wages. Like medical benefits, eligibility for workers’ compensation lost wages starts with the report of a work related accident. The benefit amount ranges from 66-2/3% to 80% of 80% of lost wages. Except for permanent total disability (PTD – 440.15(1)), a difficult standard to prove, the limit for the number of weeks of temporary disability benefits (i.e., prior to reaching maximum medical improvement) a claimant may receive is 104. Only a small percentage of claimants receive the full 104 weeks of benefits. The personal injury system for the payment of lost wages is significantly different. There is no built-in equivalent, like in workers’ compensation, for self-executing benefits to be paid. In some instances, PIP and private disability insurance fill the role, but often those benefits are not available or applicable. For the most part, it is not until the case is resolved that the personal injury claimant is compensated for lost wages past and future. The standards that apply for the determination and entitlement to lost wages also are different between workers’ compensation and personal injury cases.
  • Trial by Jury. Not available in workers’ compensation cases. Available upon request in personal injury cases.
  • Statute of Limitations. 2 years for workers’ compensation, 4 years for personal injury. (Be careful not to confuse the personal injury statute of limitations with the statutes of limitations applicable to wrongful death cases (2 years) and medical malpractice (2 years). Also, in personal injury cases against a governmental entity, although the statute of limitations is 4 years, a particular written statutory notice of claim must be given within 3 years. Finally, and of great importance, sometimes there are ways of extending a statute of limitations beyond the black-letter numbers given above. Accordingly, it is important to discuss these issues with an attorney before concluding that it is too late to pursue any legal claim based on a statute of limitations.)
  • Attorney Representation. Available in both types of case. We handle both type of cases on a contingent basis (no fees and costs payable by the client until we win the case), but, by law, the fee formulas are significantly different.

There are numerous other differences between workers’ compensation and personal injury cases, but these are the main ones. Needless to say, an experienced legal professional should be consulted to discuss all of these issues.
Continue reading

by

I have blogged previously on various topics pertaining to premises liability law (open & obvious doctrine; slip & fall; dog bites; and natural conditions. One topic about which I have not written is negligent security.

Negligent security cases involve harm to residents, guests, patrons and the like through the conduct of a bad actor such as a rapist or a mugger.

One of my previous blogs addresses the general principles of Florida law regarding landowner liability for accidents or events that occur on their property. For the most part, every commercial property owner owes some duty of care to those who enter their property, with the level of care being defined by a particular individual’s status on the property (e.g., invitee, invited licensee, uninvited licensee, trespasser). These general principles apply to negligent security cases.

Sadly, rapes and assaults at commercial locations like malls and apartment complexes are events all too common in Florida. Of course, some of these crimes cannot be prevented. However, many could be deterred through reasonable security measures such as improved lighting, beefed up security, video cameras, and eliminating secluded areas.
Continue reading

by

I am a member of the Florida Justice Association (FJA), a Tallahassee-based organization dedicated to strengthening and upholding Florida’s civil justice system and protecting the rights of Florida’s citizens and consumers. Within the organization is an Internet discussion group, of which I have been a member for more than ten years, consisting of a sub-group of lawyers who only represent Plaintiffs/Claimants. In other words, no defense attorneys are allowed access to this discussion group. The group discusses legal issues concerning the rights of individuals within the context of the civil justice system. It is an invaluable resource.

Many of my blogs discuss the dangers facing Florida’s civil justice system. Among the specific topics discussed regarding the larger issue deal with what is referred to in Florida as the crashworthiness or enhanced injury doctrine. (Blogs 1, 2, and 3.) I have warned that this important consumer safety law was in danger of being eliminated by Rick Scott and Florida’s Republican-controlled legislature. Well, in just day two of the Rick Scott administration, the doctrine is under assault and, given the Republican numbers, likely to be killed.

Given the importance of the doctrine to the safety and well-being of people in Florida, this assault on the doctrine is a hot topic of discussion on the FJA’s Internet discussion board. I found one post particularly enlightening and have decided to post it here (slightly edited). The author is Florida Attorney Rich Newsome.

*****************************************
This coming Tuesday afternoon, the Florida Senate Judiciary Committee, chaired by Senator Anitere Flores, will take up an anti-consumer bill involving automobile safety. This bill is being spearheaded by Ford Motor Company and if passed, will have huge consequences for consumers who are maimed and killed by defective cars. (Blogger’s note: In 2009, Ms. Flores introduced and shepherded workers’ compensation legislation that has resulted in the drastic curtailment of the ability of injured workers to obtain benefits. The legislation is in the process of being appealed as unconstitutional to the Florida Supreme Court.)
Continue reading

by

Florida police departments are not immune from employing a few bad apples. Occasionally, we learn of a law enforcement officer taking advantage of a vulnerable woman while in uniform during working hours. When such a vile event occurs, the legal question arises as to whether or not the offending officer’s agency must bear civil (as opposed to criminal) responsibility for the officer’s actions. The obvious reaction would seem to be, Yes, of course!!! Unfortunately, the reality is not so simple.

Florida employers may be held liable for the intentional actions of their employees under two legal principles: (1) Negligent hiring. Where the employer knew or should have known prior to hiring that the potential employee was of unfit character, but hired anyway; and (2) Negligent retention. When the employer knew or should have known after hire of an employee’s unfit character, but fails to terminate or modify the employment responsibilities.

However, merely establishing one or both of these principles is not enough. The victim must also show that (1) the unfit character of which the employer knew or should have known had some reasonable relationship to the bad acts committed; and (2) the bad acts were initiated in the course and scope of employment and to serve the interests of the employer.

One of the leading cases in Florida regarding this topic is Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744 (Fla. App. 1 Dist., 1991). Tallahassee Furniture’s employee was hired to deliver furniture to customers’ homes. More than one month after making a delivery, he returned to a female customer’s home and raped her. The young victim sued the employer, Tallahassee Furniture, for negligent hiring and retention.
Continue reading

by

worker.jpgThe question often arises in Florida as to whether undocumented workers can be compensated for lost wages (past and future) in personal injury and workers’ compensation cases. With few exceptions, the answer appears to be No.

Although the damages available in workers’ compensation and personal injury cases may differ, both offer elements of awards for lost wages. Proving entitlement requires showing that the lost wages are related to the injuries. However, the employer (wc) and defendant (pi) may nullify the proof by establishing that the claimant is prohibited from working in the United States due to immigration issues. In other words, an immigrant who is not authorized to work in the United States, cannot be compensated under Florida law for lost income resulting from an accident.

The two primary exceptions in workers’ compensation cases are (1) the employee is totally, as opposed to partially, unable to work because of his injuries, and (2) the employer knew or should have known of the employee’s status as an unauthorized alien prior to the disabling accident. (The law of Florida does not impose on an employer the burden of verifying forged or borrowed green cards – Florida Statute 448.09 – nor is there any such federal requirement.)
Continue reading

by

Florida Statute 366.15 addresses the issue of medical dependence on electric-powered equipment and public utility companies. Unfortunately, the statute appears to be a toothless tiger.

Many Floridians who live in private residences are dependent on electric-powered equipment that must be operated continuously to avoid the loss of life or immediate hospitalization. Not infrequently, the money to pay for the electric service to power the life support equipment is not always readily available.

One might conclude from reading the statute that public utility companies must overcome numerous procedural hurdles in order to disconnect service to individuals in need of “medically essential” electric-powered equipment. For example, the statute speaks in terms of prior notice to the customer and providing information regarding funding sources to pay electric bills. However, the last paragraph of the statute, which provides as follows, sends a somewhat different message: (11) Nothing in this act shall form the basis for any cause of action against a public utility. Failure to comply with any obligation created by this act does not constitute evidence of negligence on the part of the public utility.
Continue reading

Contact Information
Main Office
9999 NE 2nd Ave, #304
Miami Shores, FL 33138
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com
Palm Beach Gardens
2401 PGA Blvd #140
Palm Beach Gardens, FL 33410
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2015 – 2025, Jeffrey P. Gale, P.A.
JUSTIA Law Firm Blog Design