Florida Injury Attorney Blawg

March 26, 2019

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

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.

March 15, 2019

Jeffrey P. Gale, P.A. // Avoiding the PIP Setoff/Offset in Florida Vehicle Crash Cases

by Jeffrey P. Gale, P.A.

Florida Motor Vehicle No-Fault insurance (“Personal Injury Protection” or “PIP”) is a form of medical insurance used for motor vehicle crashes. It is mandatory on vehicles registered in Florida. It covers owners, certain family members and passengers, and pedestrians. The typical policy limit is $10,000 reduced by deductibles ranging from $500 to $2,000.

PIP does not compensate the insured or anyone else for pain and suffering damages. This type of compensation comes from bodily injury (BI) and uninsured/underinsured motorist (UM/UIM) insurance. Florida is one of only a handful of states that does not require drivers to maintain BI insurance. (Besides PIP, the only other type of mandatory vehicle insurance is Property Damage — Liability. It pays for damage to the personal property of others.) Because BI and UM/UIM cost extra, a large percentage of Florida operators do not maintain them.

Neither BI nor UM/UIM cover medical expenses that are “paid or payable” by PIP. This is known as the PIP offset (or setoff). Example of a “paid” scenario and its consequences: $20,000 BI policy limit. $15,000 medical bill, reduced by the Medicare “Allowable” formula to $10,000. Assuming no deductible, PIP pays $8,000, or 80%, leaving a $2,000 balance. Hence, the limit of liability to the at fault driver’s insurance company, the BI carrier, for past medical expenses, is $2,000 instead of $15,000. Accordingly, instead of offering $20,000 to settle the BI case, which approximates its exposure without the offset, the carrier may only offer $5,000 or $6,000. (These numbers are hypotheticals based on a typical case. In some instances, a case with $15,000 in medical charges, even with the PIP offset, can be worth hundreds of thousands of dollars, if not millions, depending on the injuries.)

March 2, 2019

Jeffrey P. Gale, P.A. // Here We Go Again — Florida’s Workers’ Compensation Law Under Assault

by Jeffrey P. Gale, P.A.

Here’s a simple truth: An injured worker (also known as a “claimant”) proceeding “without the aid of competent counsel” is as “helpless as a turtle on its back,” Davis v. Keeto, Inc., 463 So.2d 368, 371 (Fla. 1st DCA 1985) (quoting Neylon v. Ford Motor Co., 27 N.J.Super. 511, 99 A.2d 664, 665 (Ct.App.Div.1953)). Because of this, one of the most important rights presently available to claimants under Florida’s workers’ compensation system, is the ability to hire a lawyer on a contingency fee basis who is able to exact a reasonable attorney’s fee from the workers’ compensation insurance company (collectively, the “E/C”) for making it furnish benefits in accordance with the law. This attorney’s fee provision, contained in section 440.34, Florida Statutes, makes claimants’ attorneys willing and able to invest their time and money to do battle against the unlimited resources of Big Business and the Insurance Industry. Because the fee awarded against the E/C can be substantial, sensible E/C undertake a careful analysis of the pros and cons of denying benefits. This promotes fair and reasonable claims handling.

From 2009 to 2016, E/C operated under a diametrically different system. The 2009 Florida Legislature enacted legislation prohibiting Judges of Workers’ Compensation Claims (“JCC) from awarding “reasonable” attorney’s fees to claimants’ lawyers who successfully forced the E/C to furnish wrongly denied benefits. To accomplish this end, the legislature literally removed the word “reasonable” from the then existing statute. This encouraged indifference and hostility towards the rights of injured workers, with little regard given by E/C to the quick and efficient delivery of workers’ compensation benefits such as medical treatment and lost wages. If an injured worker was somehow able to enlist the services of a lawyer willing to undertake a protracted court battle, and the lawyer managed to win the case, the JCC could only order E/C to furnish the wrongly denied benefits and, because of limits imposed by law, award no more than a nominal fee to the claimant’s attorney, the equivalent of a slap on the wrist.

February 24, 2019

Jeffrey P. Gale, P.A. // The Peculiar Matter of Split Sample (Specimen) Urine Collection in Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

Employers and their workers’ compensation insurance companies (E/C) relish the opportunity to deny benefits to employees injured on the job. One of the most powerful weapons in their ample arsenal is the section 440.09(3), Florida Statutes drug defense. It reads as follows:

(3) Compensation is not payable if the injury was occasioned primarily by … the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician….

Urine is the specimen of choice for drug testing. It is collected from the donor at a collection site or directly from the injured worker’s urine bag when urinating into a cup cannot be accomplished.

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 26, 2019

Jeffrey P. Gale, P.A. // Key to Defeating Florida Workers’ Compensation Drug Defense is Preventing Presumption of Impairment

by Jeffrey P. Gale, P.A.

A popular defense utilized by Florida employers and their workers’ compensation insurance carriers (E/C) to keep from having to pay workers’ compensation benefits is the drug defense under section 440.09(3), Florida Statutes. In pertinent part, the section provides as follows:

(3) Compensation is not payable if the injury was occasioned primarily by … the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician….

It is routine for specimens to be drawn — typically urine — shortly after an accident, often before medical treatment is provided for the injury. Specimen collectors will even go to hospitals in cases where emergency medical care is required.

A companion to 440.09(3) is 440.09(7)(b), which provides:

… if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the … influence of the drug upon, the employee. If the employer has implemented a drug-free workplace, this presumption may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury. In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury.

Both presumptions are exceedingly difficult to overcome. The trick for the claimant is to keep the presumption from being implemented.

Before addressing this subject, it should be pointed out that, in the case of marijuana and cocaine, two of the most popular recreational drugs in our society, the “positive confirmation of a drug” does not equate to proof positive of being under the influence of either drug at the time of the accident. This is because the confirmation testing employed by labs does not detect the element of the drugs that cause impairment. Rather, the testing detects metabolites, which are merely markers showing that the drug has been ingested at some unknown point in time within days and sometimes even weeks of the specimen draw, while the impairment time from these drugs is typically 4-6 hours maximum. This is a big part, in my editorial opinion, of what makes the drug defense so unfair. Many Claimants are being kept from receiving needed workers’ compensation benefits even though the positive confirmation relates to weekend or after-hours use instead of any connection between impairment and the accident.

Back to the presumption.

January 18, 2019

Jeffrey P. Gale, P.A. // Where We Stand

by Jeffrey P. Gale, P.A.

FACEBOOK POSTS:

January 18, 2019

Americans are about to learn in detail that Trump and Putin colluded on a massive scale to dupe American voters. So far, we’ve only seen the tip of the proverbial iceberg.

January 14, 2019

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Law Interplay Between Catastrophic Injuries and Maximum Medical Improvement (MMI) and Permanent Total Disability (PTD) Benefits

by Jeffrey P. Gale, P.A.

Permanent Total Disability (PTD) — defined in section 440.15(1), Florida Statutes — is an indemnity (monetary) benefit sometimes available under Florida’s Workers’ Compensation System to the state’s most severely injured workers. Unless the worker has suffered an injury of the type as set forth in 440.15(1)(b), commonly referred to as a “catastrophic injury,” he or she must wait to reach the date of maximum medical improvement (MMI) before becoming eligible for PTD. In some cases, this can take a year or longer. Moreover, where multiple injuries are involved, the worker must first reach MMI from each injury.

For employees who have suffered “catastrophic injuries,” MMI does not have to be reached to qualify for PTD benefits. According to 440.15(1)(b), “an injured employee is presumed to be permanently and totally disabled” upon sustaining a catastrophic injury. The presumption is rebuttable. To overcome the presumption, the employer or carrier must establish “that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence.” 440.15(1)(b).

In Temporary Labor Source v. E.H., 765 So.2d 757 (Fla. 1st DCA 2000), although the claimant had sustained a catastrophic injury, the Judge of Compensation Claims (JCC) refused to adjudicate the issue of PTD when the matter was addressed at trial. Relying upon medical expert testimony “that the use of a prosthetic device may increase Claimant’s ability and capacity for work,” the JCC reasoned that because the claimant had not reached MMI, PTD was not ripe for adjudication. The judgment was reversed on appeal.

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.

December 24, 2018

Jeffrey P. Gale, P.A. // Florida Property Damage Law — Efficient-Proximate-Cause Theory vs. Concurrent-Causation Theory

by Jeffrey P. Gale, P.A.

In Citizens Property Insurance Corporation v. Salkey (Opinion filed November `6, 2018), property owners insured with Citizens claimed losses alleged to have been caused by sinkhole activity. They had purchased coverage endorsement, which provided coverage for direct physical loss caused by sinkhole activity. An expert hired by Citizens concluded that the property damage was not caused by sinkhole activity but was caused by the ongoing decay of organic soils and phosphatic clay in the reclaimed mine zone over which the insured’s house was built. Because damage caused this way was excluded under the policy, Citizens denied the sinkhole claim, and the homeowners filed a breach of contract claim against Citizens.

Based on evidence presented at trial, the jury concluded that the damage was caused by both factors. Judgment was entered for the property owners. Citizens appealed.

While the judgment was reversed and remanded on other grounds, the Second DCA concluded that Citizens was otherwise liable on the concurrent-cause doctrine, not the efficient-proximate-cause doctrine, which applies when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy. (Citizens argued that policy language effectively eliminated coverage under the concurrent-cause doctrine, but the appeal court disagreed.) The DCA was informed by the Florida Supreme Court’s opinion in Sebo v. American Home Assurance Co. (Sebo II), 208 So. 3d 694 (Fla. 2016).

FLORIDA INJURY ATTORNEY BLAWG