Articles Posted in Personal Injury

Florida law regarding setoffs is found in sections 46.015(2), 768.041(2), and 768.31(5), Florida Statutes. Each of these statutes presupposes the existence of multiple defendants jointly and severally liable for the same damages. See Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d 249, 253 (Fla. 1995).

Back when defendants were jointly and severally liable for all damages in negligence cases, the setoff statutes authorized courts to reduce damage awards by the amount of settlement proceeds paid by other entities and individuals in the case. (The doctrine of joint and several liability was part of Florida’s common law for many years. See Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914)(All negligent defendants were held responsible for the total of the plaintiff’s damages regardless of the extent of each defendant’s fault in causing the accident).) While the courts began to have its doubts about joint and several liability as early as the 1970s, because the doctrine had been perceived as unfairly requiring a defendant to pay more than his or her percentage of fault — in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), the Florida Supreme Court took the first step toward equating liability with fault by eliminating the doctrine of contributory fault. Thereafter, in Lincenberg v. Issen, 318 So.2d 386, 391 (Fla. 1975), the court abolished the rule against contribution among joint tortfeasors, stating that “it would be undesirable for this Court to retain a rule that under a system based on fault, casts the entire burden of a loss for which several may be responsible upon only one of those at fault…” — it took legislative action to spell its demise. In 1986, with the enactment of section 786.81, the Florida Legislature abolished joint and several liability for noneconomic damages. In 2006, it did the same with regard to economic damages. Hence, with the elimination of joint and several liability, it would appear that the setoff statutes are inapplicable in negligence cases — See Wells and Port Charlotte HMA, LLC v. Suarez, 210 So. 3d 187 (Fla. 2nd DCA 2016) — replaced by the legal doctrine known as comparative fault, defined in the current version of section 786.81(3) as follows:

In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.

We have pending on appeal before the Third District Court of Appeal the question whether a homeowner’s association is liable under the non-delegable duty doctrine for the negligence of a third party. The association undertook the reconstruction of a boat dock by hiring a construction company. The construction company created a dangerous condition. Neither the association, which controlled the property, nor the construction company took adequate measures to protect residents and guests from injury. While attending a party as an invited guest at one of the townhouses, our client sustained serious injuries because of the dangerous condition. The jury found the townhouse owner partially at fault for failing to warn our client of the dangerous condition, which was approximately 100 feet from the back porch of the townhouse. The trial court refused to apply the non-delegable duty doctrine to impose liability on the homeowner’s association liable for the percentage of fault the jury attributed to the townhouse owner.

While there are no Florida cases directly on point, we did find some out of state and federal cases that, while not exactly on point either, appear to be instructive on the issue. The following cases stand for the proposition that someone with a non-delegable duty cannot escape liability by relying on others to fulfill the duty, and not just independent contractors. Two of those cases, Whitehead v Food Max and Tolman v Johnson are premises liability cases, but are not directly on point. The others are product liability cases where it is the duty to warn that is non-delegable.

Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265 (5th Cir, 1998). This case is a negligent security case where a mother and her daughter were abducted from a Kmart parking lot, robbed and sexually assaulted. The Circuit Court recognized that Mississippi imposed a duty upon business owners to maintain the premises in a reasonably secure or safe condition, including the protection of patrons from wrongful acts of third parties. In challenging the verdict/judgment in favor of the plaintiffs, Kmart argued the sufficiency of the evidence on foreseeability and challenged the propriety of jury instructions. In particular, Kmart complained about a jury instruction that said Kmart could not rely upon law enforcement agencies to discharge its nondelegable duty to keep its store and parking lot in a reasonably safe and secure condition. The Circuit Court pointed out that another instruction given to the jury stated that business owners are not obligated to hire a security guard or take other precautions against crime unless ordinary police protection is inadequate and the crime was reasonably foreseeable. The court did not go into detail about the nature of a nondelegable duty or how far it extends. It does not appear that either party argued that the police were negligent and the court did not address the potential liability for any negligence on the part of the police.

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Personal 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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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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Forty 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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In 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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