Personal Injury

July 26, 2019

Jeffrey P. Gale, P.A. // Pre-Settlement Considerations for Claimants/Plaintiffs Receiving Both Medicare and Medicaid Benefits

Settling an injury case is not as easy as it once was. In the old days, cases would be settled with little or no consideration being given to satisfying liens and protecting an injured person’s right to receive post-settlement Medicare and Medicaid benefits. Rather than attorney neglect, much of this was due to weak and sometimes non-existent lien rights and undeveloped requirements for protecting the interests of Medicare and Medicaid. Times have changed. This blog will touch on the interplay between Medicare Set-Asides (MSA) and Medicaid’s means-tested Supplemental Security Income (SSI) benefits.

According to the Centers for Medicare & Medicaid Services (CMS), a “Medicare Set-Aside Arrangement (WCMSA) is a financial agreement that allocates a portion of a … settlement to pay for future medical services related to the … injury, illness, or disease. These funds must be depleted before Medicare will pay for treatment related to the … injury, illness, or disease.” While MSAs have been part of the workers’ compensation landscape for many years, it is unclear, despite years of discussion, whether they are required in personal injury cases. In cases involving serious injuries where the plaintiff will most definitely require future medical care, caution dictates considering, at least, the creation of an MSA.

Supplemental Security Income (SSI) “is a Federal income supplement program funded by general tax revenues (not Social Security taxes):

It is designed to help aged, blind, and disabled people, who have little or no income; and
It provides cash to meet basic needs for food, clothing, and shelter.”

The more countable income you have, the less the SSI payment will be. Moreover, if your countable income is over the allowable limit, you cannot receive SSI benefits at all.

July 24, 2019

Jeffrey P. Gale, P.A. // Post-Settlement/Post-Judgment Payment of Medical Expenses by Health Insurance

by Jeffrey P. Gale, P.A.

Once a case involving personal injuries has been settled or resolved by the payment of a final judgment, the injured party will receive no more money from the closed matter to cover any later incurred expenses such as those for medical care. This rule applies in both civil and workers’ compensation cases.

The question often arises as to whether health insurance will cover post-resolution incurred expenses. The answer depends on the type of coverage available. Medicare, for example, will not cover expenses for which a person has been compensated in an underlying personal injury or workers’ compensation case unless a pre-determined portion of the compensation is first exhausted. The amount that must be exhausted is set forth in what is known as a Medicare Set Aside Arrangement. In contrast, medical benefits available through the Veterans Administration are not subject to being offset against funds recovered in the underlying accident case. These are the two extremes. Health insurance benefits provided through ERISA plans and the Affordable Care Act fall somewhere in between.

A majority, albeit dwindling, number of Americans receive group health insurance through their employers. (The trend is for employers to reduce employee work hours to avoid having to provide group health insurance.) The rights and duties of insureds and insurers under these plans is governed by a federal law known as ERISA (Employee Retirement Income Security Act), see 29 U.S.C. §§ 1001-1461. Many other individuals are covered by individual insurance policies mandated by the Affordable Care Act (ACA), also known as “Obamacare.” Even though ERISA plans must meet certain ACA requirements, in various other important respects the plans are less consumer friendly than individual ACA policies, which are governed by Florida law for Florida issued policies. Two of the most significant differences involve challenging the denial of claims and carrier subrogation rights.

June 30, 2019

Jeffrey P. Gale, P.A. // Loss of Consortium — Think Twice (or more) Before Making This Claim

by Jeffrey P. Gale, P.A.

Florida case has long allowed the spouse of an injured married partner to bring a cause of action for loss of consortium, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium. Busby v. Winn & Lovett Miami, Inc., 80 So.2d 675 (Fla.1955). Such damages range from the loss of household services (such as cooking and cleaning) to adversely affected sexual relations. It is precisely because of the spouse’s right to loss of consortium damages that both spouses are typically required to sign settlement releases.

While the consortium claim is a separate cause of action, as a derivative claim it must be brought in the same lawsuit as the underlying injury claim. As so eloquently stated by ace Florida trial lawyer Dale Swope, there are consequential reasons for not rushing headlong into bringing a claim for loss of consortium: “[T]hey can do more harm than good. They open the door to broader discovery, lead to internal disagreement, create the potential risk of execution on jointly held assets, and look to the jury like a lawyer-created claim that is just excessive. They also do not increase the coverage available (except in sovereign cases) and can also cause trouble with Medicaid if the allocation of a global recovery is made unilaterally.” See May/June 2019 Florida Justice Association Journal. Hence, unless the spouse has demonstrable damages, it may be best to let is rest. (All too often, spouses overestimate the value of consortium claims or their lawyers fail to give adequate consideration to the negatives.)

June 22, 2019

Jeffrey P. Gale, P.A. // Golf Carts, Low Speed Vehicles (LSV) and Florida Personal Injury Law

by Jeffrey P. Gale, P.A.

We represent a gentleman who was recently involved in a horrible crash while operating his Ford F-150 truck in a gated Lee County, Florida community. The operator of the other vehicle, which crossed into our client’s oncoming lane of traffic, died in the crash. Our client sustained significant personal injuries, including emotional distress. (For example, he is haunted from the experience of trying to help the dying man at the accident scene.)

We are seeking compensation for our client’s damages. While Florida No-Fault Insurance (a/k/a “PIP”) may cover some of his medical expenses and lost wages, he did not maintain the type of coverage — UM/UIM — under his own motor vehicle policy to compensate for non-economic damages such as pain and suffering and for economic losses (e.g., wage loss (past) and loss of earning capacity (future)) and medical expenses in excess of the PIP policy limit (typically $10,000).

Our investigation has determined that the at-fault driver maintained bodily injury (BI) insurance under his own motor vehicle policy. The listed insured vehicle under the policy is a Lexus. At the time of the tragic crash, the insured was driving a golf cart or a modified golf cart known as a low speed vehicle. The vehicle was not listed in the insurance policy.

Section 320.01(22), Florida Statutes defines a “golf cart” as “a motor vehicle that is designed and maintained for operation on a golf course for sporting or recreational purposes and that is not capable of exceeding speeds of 20 miles per hour.” (emphasis added). By contrast, a “low-speed vehicle” is defined as “any four-wheeled electric vehicle whose top speed is greater than 20 miles per hour but not greater than 25 miles per hour, including neighborhood electric vehicles. Low-speed vehicles must comply with the safety standards in 49 C.F.R. s. 571.500 and s. 316.2122.” § 320.01(42), Fla. Stat. For insurance coverage purposes, the distinction might prove consequential in our case.

April 24, 2019

Jeffrey P. Gale, P.A. // Gap in Protection for Florida Uber Eats Bicycle Riders

by Jeffrey P. Gale, P.A.

We represent a hardworking young college student who was struck by a hit-and-run vehicle and left for dead by the side of the road while delivering for Uber Eats on his bicycle. He spent a week in Ryder Trauma Center, a leading catastrophic care facility, with life threatening injuries ranging from traumatic brain injury (TBI) to bone fractures.

Florida Statute 627.748 imposes obligations on Transportation Network Companies (TNC) to maintain primary automobile insurance coverage while an authorized driver is engaged in service operations. The types of required coverage are death and bodily injury (BI), property damage (comprehensive and collision), uninsured/underinsured motorist (UM/UIM), and personal injury protection (PIP), with varying policy limits depending on whether the participating TNC driver is engaged in a prearranged ride or logged on to the digital network but not engaged in a prearranged ride.

Unfortunately, the statute leaves a gaping hole for victims like our young college student. By its terms, the statute is limited to situations where the TNC driver is engaged in a prearranged ride (with or for a “rider”) or is logged on to the network while operating a motor vehicle. Since a bicycle is not a motor vehicle and food is not a “rider” — defined in 627.748 as “an individual who uses a digital network … to obtain a prearranged ride in the TNC driver’s vehicle….” — our young client may never be compensated for his damages (injuries, medical expenses, lost wages).

April 20, 2019

Jeffrey P. Gale, P.A. // Florida Premises Liability Law and Cell Phone Distraction

by Jeffrey P. Gale, P.A.

Cell phone related distraction accounts for a great number of motor vehicle crashes. Legislation aimed at curbing these preventable events has been enacted in parts of Europe, Canada, and the United States. Florida remains one of just a handful of states without meaningful legislation designed to curb mobile phone abuse while operating a motor vehicle.

With less fanfare, cell phone distraction has become a leading cause of premises liability accidents. The chances of tripping or slipping and falling on a dangerous condition, such as an uneven surface or foreign substance, is increased by inattention.

Florida law apportions damages in most personal injury cases on the basis of each party’s percentage of fault. This includes the injured victim. The concept, contained in section 768.81, Florida Statutes, is known as comparative fault. For example, in most rear-end car crash cases where the lead vehicle is rightfully stopped due to traffic or a road signal, the trailing vehicle is found to be 100% at-fault. However, if it can be established that the lead vehicle stopped suddenly or unexpectedly or that the tail lights of the vehicle did not work, a percentage of fault may be apportioned against the owner or operator of that vehicle. If a jury decides that the owner or operator sustained $100,000 in damages but was 50% at-fault, the judgment in the o/o’s favor would be cut in half to $50,000.

April 9, 2019

Jeffrey P. Gale, P.A. // Recent First DCA Ruling in a Workers’ Compensation Case May Open Floodgates for More Personal Injury Cases

by Jeffrey P. Gale, P.A.

Many experts believe that the First District Court of Appeal’s April 5, 2019 ruling in Sedgwick CMS v. Tamatha Valcourt-Williams will open the floodgates for more civil negligence lawsuits brought by employees against employers.

Because of the immunity provisions of section 440.11, Florida Statutes, such lawsuits have always been exceedingly rare in Florida. Under the current version of the statute, the exceptions to this exclusiveness of liability are:

When an employer fails to secure workers’ compensation coverage; or
When an employer commits an intentional tort that causes the injury or death of the employee

A third exception arises when an employer/carrier defends a workers’ compensation claim on the basis that “the injury did not occur in the course and scope of employment, or that there was no employment relationship.” An employer taking this position is estopped from asserting the 440.11 workers’ compensation immunity defense in a civil negligence suit brought against the employer. See, Byerely v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999).

The Sedgwick case appears to have expanded the scope of injuries workers’ compensation employers/carriers can deny as not having occurred in the course and scope of employment. The flip side of this will be an increase in opportunities for personal injury lawyers to pursue civil negligence claims resulting from workplace accidents. It remains to be seen if these projections will hold up over time, but workers’ compensation insurance companies and personal injury lawyers are not expected to waste any time testing the waters.

As workers’ compensation claimants’ attorneys are bracing for an onslaught of denied claims, personal injury lawyers are licking their chops at the prospect of seeing an expanded number of personal injury cases come their way. While a denied claim may still be prosecuted under workers’ compensation, some of those denials will naturally end up as circuit court negligence cases. In those cases, claims of workers’ compensation immunity will be met with Byerley and Sedgwick arguments. Moreover, Sedgwick expands the opportunities to jump right into the personal injury arena rather than wait for the claim to be denied under workers’ compensation. While not waiting has always been an option, Sedgwick makes it easier for the plaintiff to argue successfully that the injury did not occur in the course and scope of the employment.

In Sedgwick, a workers’ compensation adjuster authorized to work from home injured herself during a coffee break when she tripped over her dog. She filed for workers’ compensation benefits and won at the trial level. The employer appealed and was successful in having the trial level decision reversed. The DCA decided that the adjuster was not injured in the course and scope of her employment. It framed the question of compensability as “whether the employment—wherever it is—’“necessarily exposes a claimant to conditions which substantially contribute to the risk of injury,”’ a concept it calls “occupational causation,” Sentry Ins. Co. v. Hamlin, 69 So.3d 1065, 1068 (Fla. 1st DCA 2011) (citing Acker v. Charles R. Burklew Constr., 654 So.2d 1211 (Fla. 1st DCA 1995)), or a risk not existent in the claimant’s “non-employment life.” Medeiros v. Residential Cmtys. of Am., 481 So. 2d 92, 93 (Fla. 1st DCA 1986); accord Glasser v. Youth Shop, 54 So. 2d 686, 687-88 (Fla. 1951) (“Since industry must carry the burden, there must then be some causal connection between the employment and the injury, or it must have had its origin in some risk incident to or connected with the employment, or have followed from it as a natural consequence.”).

March 26, 2019

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Immunity and the Dangerous Instrumentality Doctrine

by Jeffrey P. Gale, P.A.

With few exceptions, section 440.11, Florida Statutes grants immunity from tort liability to employers and the co-employees of Florida workers injured in the course and scope of their employment. In most cases, the doctrine precludes relief outside of the workers’ compensation system.

Florida’s dangerous instrumentality doctrine is a common law doctrine which provides that the owner of an inherently dangerous tool is liable for any injuries caused by that tool’s operation. The Florida Supreme Court in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 469 (Fla. 1920), extended the doctrine to motor vehicles, holding that owners may be held accountable for any damages suffered by third parties as the result of the negligent operation of their vehicles, when they are driven by others with their knowledge and consent. This doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another. (Other examples of dangerous instruments include: Newton v. Caterpillar Financial Services (multi-terrain loader); (Rippy v. Shepard) (farm tractor); (Harding v. Allen-Laux, Inc.) (forklift); (Halifax Paving, Inc. v. Scott & Jobalia Const. Co.) (crane); Meister v. Fisher, 462 So.2d 1071 (Fla. 1984) (golf cart); Sherrill v. Corbett Cranes Services, 656 So.2d 181 (Fla. 5th DCA 1995) (crane); Lewis v. Sims Crane Service Inc., 498 So.2d 573 (Fla. 3d DCA 1986) (construction hoist); Eagle Stevedores, Inc. v. Thomas, 145 So.2d 551 (Fla. 3d DCA 1962) (tow-motor).

It is not uncommon for employers to use such dangerous instrumentalities in the workplace that are owned by others. This raises the question of whether the owner of a dangerous instrumentality shares the same immunity as employers and co-employees. In Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla. 1966), workers’ compensation immunity was extended to Ryder, the owner of two motorcycles involved in a crash that were leased to the employer. The Florida Supreme Court declared that the motorcycles in effect had become working tools of the employer, much like a fellow employee. Smith was subsequently relied on by the Supreme Court in Halifax Paving, Inc. v. Scott & Jobalia Const. Co., 565 So. 2d 1346 (Fla., 1990), to extend immunity to the owner of a crane who merely loaned the equipment to the employer as a matter of courtesy.

February 3, 2019

Jeffrey P. Gale, P.A. // Obtain Accident Video Before Plaintiff’s Deposition in Florida Premises Liability Cases

by Jeffrey P. Gale, P.A.

In this day and age of surveillance cameras everywhere, it is not uncommon for premises accidents to be captured on video. For various reasons it is critically important for the plaintiff’s attorney to secure a copy of all videos as soon as possible. One of the most important reasons is to enable the victim to recount the accident before giving sworn testimony wholly on memory. Even truthful witnesses can have a shaky grasp of the facts. Time, excitement, injury, uncertainty, nervousness — all can work against an accurate account of a traumatic event.

Once a lawsuit is filed and served, the parties to a premises liability action typically engage in what is known as Discovery. Interrogatories, which are questions answered under oath, and live testimony by deposition are two of the most common discovery vehicles. The mechanism of injury is usually at issue in premises liability cases. How and why did the accident happen?

In Business Telecommunications Services, Inc. v. Elena Madrigal, Case No. 3D18-2106, (Fla. 3rd DCA 2019), the appellant Business Telecommunications Services, Inc. was ordered by the trial court to turn over a surveillance video in advance of the deposition of the plaintiff in a personal injury case. The defendant appealed the court order, relying on cases such as Dodson v. Persell, 390 So. 2d 704 (Fla. 1980). The 3rd DCA decided that such reliance was misplaced, and thus refused to reverse the trial court’s order.

January 3, 2019

Jeffrey P. Gale, P.A. // Constitutionality of Florida Hospital Lien Depends on Mechanism of Creation

by Jeffrey P. Gale, P.A.

Hospitals expect to be paid for services rendered. Payment sources range from personal funds, government assistance, to insurance. When the accident is job related, workers’ compensation will pay the hospital in compensable cases. When the accident is not job related, third parties responsible for causing the accident may have to pay compensation for hospital expenses.

Hospital liens are created by legislation. The purpose of these provisions is to “assure a hospital of its rights to proceeds which are held by an insurance company whose insured is liable for the injuries suffered by the hospital’s patient.” Palm Springs Gen. Hosp., Inc. v. State Farm Mut. Auto. Ins. Co., 218 So. 2d 793, 797-98 (Fla. 3d DCA 1969). The carrier is never obligated to pay more than its policy limits, see, Shands Teaching Hosp. v. Mercury Ins. Co., 97 So.3d 204 (Fla., 2012), and whether or not any insurance proceeds are paid, the patient remains responsible for all outstanding charges and can be sued by the hospital for breach of contract with regard to same. In some instances, the patient’s personal injury lawyer can negotiate a reduction in the bill.

Florida hospital liens have been created by Special Acts of the Florida Legislature and by ordinances. Liens created by the Florida Legislature are unconstitutional and unenforceable.