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government cut2.jpgMillions of passengers travel annually on cruise ships sailing from Florida ports. Thankfully, most of the voyages are uneventful in terms of negative events. However, some passengers do suffer serious personal injuries and even death through the fault of the cruise ship companies.

General Maritime Law governs cases involving cruise ship passengers, Everett v. Carnival Cruise Line, Inc., 912 F.2d 1355 (11th Cir. 1990), including for injuries and death occurring during shore excursions, so long as it happens during the “course of the cruise.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11th Cir. 2004); Howard v. Crystal Cruises, Inc., 41 F.3d 527 (9th Cir. 1995). Common reasons for holding cruise lines liable for shore excursion accidents are fault in screening, hiring, and retention of tour operators. Fojtasek v. NCL (Bahamas), Ltd., 613 F.Supp. 2d 1351 (S.D. Fla. 2009); Smolnikar v. Royal Caribbean Cruises Ltd., — F.Supp. 2d — (S.D. Fla. 2011).

General Maritime Law holds a shipowner to a duty of reasonable care under the circumstances. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). With regard to dangers or risks that are not apparent and obvious, a cruise line has a duty to warn a passenger. Luby v. Carnival Cruise Lines, Inc., 633 F.Supp. 40 (S.D. Fla. 1986) aff’d 808 F.2d 60 (11th Cir. 1986).

Here is a checklist of other important considerations for cruise ship passengers:

Statute of Limitations/Notice of Accident: The courts have given the cruise ship companies some leeway in dictating how long harmed passengers have to bring claims. The restrictions will be written into the passenger ticket/contract. Typically, the statute of limitations is set at one year, while the time period for notifying the cruise ship company of an event is 6 months. This means that notice of the harm must be given to the cruise ship company within 6 months of the event and that a lawsuit must be brought against the company within 1 year of the event. The failure of a claimant to meet either of these conditions will likely bar the claim entirely.
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doctor.jpgUnder Federal and Florida law, the medical records of nursing home residents are available to a variety of duly authorized individuals and representives. Interested parties must know their rights to keep from being deterred by nursing homes in their quest for the records. This blog summarizes the laws that can be utilized to obtain the records.

Section 164.502(g) of Title 45, Subtitle A, Code of Federal Regulations (part of HIPAA), provides that nursing homes must treat any person who has authority to act on behalf of a deceased individual as if that person was the deceased individual.

Section 400.145(1) of the Florida Statutes declares that nursing home records shall not be considered as part of an estate and are to be made available to a spouse, guardian, surrogate, or proxy prior to administration of an estate.

Both HIPAA and 400.145(1), Fla. Stat. also require nursing homes to make records available even though the person is still alive. Section 164.502(g) of the C.F.R. provides that nursing homes are required to disclose records to any person authorized to act on behalf of an individual with regard to health care. Section 400.145(1) of the Florida Statutes requires the release of nursing home records to any spouse, guardian, surrogate or proxy for a resident who has not died.

Finally, Section 765.401 of the Florida Statutes describes the authority of a “proxy” to act on behalf of an incapacitated person. A proxy is defined as including the patient’s spouse, an adult child of the patient, a parent of the patient, and even a close friend of the patient.
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dollars.jpgAs the 2012 Florida legislative session is about to begin, Corporate Florida is rolling out its guns to prepare for its annual assault on the civil justice system. Although packaged as an effort to benefit consumers, make no mistake that the true goal is to maximize corporate profits at the expense of people. Profits over People.

PIP is one of the main targets in Corporate Florida’s high powered sights this session.

Associated Industries of Florida is one of Corporate Florida’s most aggressive players in the never ending war between profits and rights. It was in the forefront of the assault on Florida’s workers’ compensation system that has resulted in less support for injured workers today than 10 to 20 years ago. PIP is next.

On November 28, 2011, the Miami Herald published an editorial by a vice president for governmental affairs at Associated Industries, in which various proposals were made for revamping the PIP system. I will respond to each proposal.

Proposal: “Allow insurance companies adequate time to investigate suspicious claims.”
Response: Under current Florida law, PIP insurance companies have at least 65 days to investigate claims before a lawsuit for breach of contract can be filed. This alone is adequate time to investigate a claim, but in reality carriers have much more time to investigate because in everyday practice PIP lawsuits are rarely filed within six months of an accident. During this period of time, carriers have many ways to investigate claims, including examining insureds under oath and having medical exams performed by hand chosen doctors.

Carriers have the right to deny claims that they feel are suspicious. If a claim is denied, an insured may drop the claim or file suit. Through legal proceedings, each side has the chance to fairly present its case to a judge and jury. What’s unfair about that?

Proposal: “Cap attorney fees in no-fault cases to eliminate the incentive for frivolous litigation.”
Response: This is a shell-game proposal. Carrier’s know that fee caps will discourage lawyers from pursuing legitimate claims. It is a ploy the insurance industry has used with great success in gutting the rights of workers’ compensation claimants. Carriers also know that there is no such thing as a frivolous lawsuits crisis, only a successful propaganda campaign to make the public believe there is. As I have blogged here before – Debunking The Myth About Frivolous Lawsuits (Florida) – Installment #1; Debunking The Myth About Frivolous Lawsuits (Florida) – Installment #2 ; South Florida Trial Lawyer – Tort Reform (“Deform) & What It Means – the concept that lawyers can make money pursuing frivolous claims defies logic and reason. As every lay person who has battled with an insurance carrier knows, it is hard enough to succeed with legitimate claims much less bogus claims. The civil justice system has created numerous filters to weed out even weak cases, so the notion that baseless cases somehow make it through the filter system is nothing short of disingenuous. Quite simply, Corporate America does not like being answerable to individuals in courts of law. The frivolous lawsuits fallacy is nothing short of a concerted campaign to bar the courthouse doors against individuals seeking redress. Profits over People.
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torah.jpgAmerica’s civil and criminal justice systems are grounded on the Mosaic Code. The Law, contained in the Torah’s Books of Exodus, Leviticus, Numbers, and Deuteronomy, pre-dates Roman laws and is the first to incorporate humanism and the democratic spirit into a written Judicial code. Four centuries before Christ, the Jews devised a legal system based on the dignity of man and individual equality before the law. Individuals accused of crimes were considered innocent until proven guilty, had the right to confront their accusers, were allowed to testify in their own behalf, were not subject to double jeopardy, and could appeal convictions.

A thorough and interesting book containing observations on this subject and many more about Jewish history is Max Dimont’s Jews, God & History. Reproduced here are some of Mr. Dimont’s insightful observations on the subject of this blog:

  • “The Torah was a bold leap into the future, a giant stride ahead of anything existing at that time. Its concept of equality before the law, a law based on the written code, seems to be a Semitic innovation.”
  • “The Mosaic Code … was the first truly judicial, written code, and eclipsed previously known laws with its all-encompassing humanism, its passion for justice, its love of democracy.”
  • “These laws were essentially divided into three categories: those dealing with man’s relation to man, those dealing with man’s relation to the state, and those dealing with man’s relation to God.”
  • “The Mosaic Code laid down the first principles for a separation of church and state…. In the Mosaic Code the civil authority was independent of the priesthood…. The priesthood was charged with the responsibility of keeping the government within the framework of Mosaic law, just as the United States Supreme Court is not above the federal government but is, nevertheless, charged with the responsibility of keeping it within the framework of the Constitution. Moses also laid the foundation for another separation, which has since become indispensable to any democracy. He created an independent judiciary.”
  • “There is a curious resemblence between the philosophic outlook of American constitutional law and that of Mosaic law. The federal government has only the powers granted to it by the Constitution. The individual states can do anything not specifically denied to them. In essence, the Mosaic law also established the principle that the Jews could do anything not specifically denied to them. Instead of saying, ‘”Do such and such a thing,”‘ the laws of Moses usually say, ‘”Don’t do this or that.”‘ Even where the Mosaic law makes a positive statement, it is often either an amendment to a negative commandment or else hemmed in by a negative admonition, saying, in effect, ‘”When you do this, then don’t do that.”‘ The Ten Commandments, for instance, list only three do’s but seven don’ts. The three positive Commandments are: ‘”I am the Lord thy God”‘; observe the Sabbath; and honor your parents. The seven don’ts leave little doubt as to what one is not supposed to do. By fencing in only the negative, Moses left an open field for positive action. This allowed the Jews great flexibility. As long as they did not do anything specifically prohibited, they could, like the individual American states, do anything they wanted to do.”

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(Also read this blog: DCA Limits EUO Abuse)

law books.jpgMost Florida-issued insurance policies allow carriers to examine their insureds and omnibus insureds* (individuals unnamed but covered under a policy) under oath during the claim process. Any failure by the insured to cooperate with this condition of the policy may result in a denial of coverage.

In every EUO, carriers look for ways to deny and limit claims. For example, questions will be asked seeking to uncover substantive misrepresentations in the insurance application. Carriers also try to frighten insureds into dropping claims. One popular tactic is by indicating that the EUO is being conducted by the company’s “Special Investigatve Unit,” an effort to make the procedure look like a law enforcement action.

Other tactics include:

  • Scheduling EUOs during work hours on short notice
  • Requiring personal attendance at obscure, inconvenient, and far away locations (e.g., Blue Lagoon Drive, in Miami)
  • Videotaping the EUO
  • Seeking contact information of every possible witness
  • Behaving rudely
  • Asking endless irrelevant questions that invade privacy and make what should be a 15 minute examination last hours

Thankfully, there are limits on the carrier.

The claimant may have his/her lawyer present during the EUO. Moreover, since the EUO is not controlled by the Florida Rules of Civil Procedure or the Florida Rules of Evidence, like a deposition would be, the claimant and lawyer are far less constrained in their conduct. For example, they may confer during the questioning.
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checklist.jpgFrom our experience, most Florida motor vehicle owners are not familiar with the many different types of coverages that are available, for the asking and at a price, under a standard vehicle insurance policy.

Preliminarily, it should be understood that, in Florida, for a vehicle to be lawfully registered, the only mandatory coverages are PIP (limited medical and lost wages) and Property Damage – Liability (covers damage to the other person’s property caused by the at-fault party). (Florida, a state with, in my opinion, primitive notions of right and wrong, is in the minority with regard to mandatory coverages. Other states, by making Bodily Injury – Liability mandatory, seemingly value life and limb more than property. Not so Florida, whose motor vehicle insurance vehicle laws create an environment the equivalent of the Wild West, where each man is responsible for his own safety and welfare without protection from the authorities.) Since these are the minimum requirements, a policy that covers nothing more is also the least expensive policy that can be purchased.* It is also the policy of choice for a large percentage of Florida motorists.
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barricade.jpgEffective October 1, 2011, individuals seeking redress for injuries caused by medical errors face yet another obstacle placed in their path by Florida’s Republican-dominated legislature. The new legislation applies to cases that arise on or after October 1, 2011.

The new legislation, Florida Statute 766.1065, forces claimants to provide target defendants with a medical authorization form along with the notice of intent to initiate litigation. The problem is that the authorization requirements of 766.1065 appear to abrogate the privacy rights of patients under Florida Statute section 456.057(7)(a) and the Federal Health Insurance Portability and Accountability Act at 42 USC Section 201 et seq. (commonly referred to as HIPAA) and 45 CFR Section 164.512.

It is too early to tell how the conflict will be resolved. One would like to believe that privacy rights will hold sway, but the forces seeking to insulate medical providers and their malpractice insurance companies hold an inordinate amount of influence in this state, so the outcome is anything but predictable.

The consequences of failing to comply with 766.1065 could be fatal to the case, so it is best not to play with that fire. We recommend providing the required authorization form, but include a statement in the notice of intent to initiate litigation, in bold large face type, that the authorization does not abrogate or supersede the doctor-patient privacy/confidentiality rights deliniated in the aforementioned citations.

Perhaps even more problematic to the pursuit of due process than the authorization, is the further hurdle created by the new law that for physicians licensed in other states to provide expert testimony in Florida about the prevailing professional standard of care or to execute and submit presuit verified written expert medical opinions, they must obtain certain certificates. Florida Statute Sections 766.102(12) and 458.3175. This is an onerous requirement designed to make it more difficult for those harmed by malpractice to pursue just compensation.
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maze2.jpgUninsured/Underinsured vehicle insurance, described in Florida Statute 627.727, is first party insurance that covers non-economic damages (e.g., pain & suffering), economic losses (e.g., lost wages) and medical expenses realized by insureds through the negligence of uninsured or underinsured (i.e., losses exceed policy limits) owners and operators of motor vehicles. In Florida, where a high percentage of vehicle owners do not maintain bodily injury (BI) coverage or, if they do, only carry it up to a limit of $10,000, having UM/UIM is the only sure way of providing some degree of economic protection against the catastrophic losses a serious motor vehicle accident can cause.

UM/UIM can be stacked or non-stacked. The most well known function of stacked coverage is to increase policy limits for owners of multiple vehicles insured under the same insurance policy. For example, the owner of three vehicles insured under the same policy, with stacked UM/UIM coverage with limits of $100,000 per vehicle, really has $300,000 worth of coverage for the the types of losses described in the paragraph above.

Stacked coverage serves another valuable function.

It is not unusual for owners of multiple vehicles to have some or all of their vehicles covered under separate policies. This can be problematic because most insurance policies issued in Florida exclude the extension of UM/UIM when the accident happens in a vehicle “owned by an insured but not insured under this policy.” In other words, the UM/UIM on one vehicle does not transfer to another vehicle owned by the same person.

Having stacked UM/UIM on even one of the insured vehicles overcomes the exclusion. In the example above, $100,000 is available to the insured no matter which vehicle the insured was occupying during the accident. Another way of thinking of it is that stacked UM/UIM follows the insured everywhere. Non-stacked coverage does not.

Florida insurance law can be a puzzle. It is best to seek the advice of legal counsel before and after an accident to learn your rights.
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calculator.jpgEmployees injured while working in accidents caused by third parties may be entitled to compensation through Florida’s workers’ compensation system and its personal injury laws. In the context of this blog, a third party is a person or company other than an injured worker’s employer. Examples include manufacturers of defective machinery and negligent operators of motor vehicles.

Florida’s workers’ compensation system is a no-fault system, meaning that for an injured worker to be eligible for benefits, the fault of another in bringing about the accident need not be proved. This is one of the biggest differences between the workers’ compensation system and the personal injury system, which is fault based.

To prevent the person harmed from receiving a windfall recovery, some or all of the money received from the third party must be repaid to the employer or the workers’ compensation carrier in rough proportion to value of the benefits they furnished. In other words, employers and workers’ compensation carriers have subrogation rights against the third party proceeds. This right is commonly referred to as the workers’ compensation lien.

Workers compensaiton is a creature of statute – see Chapter 440 of Florida’s statutes – and the right of subrogation is derived, in particular, from Section 440.39(2).

The employer or carrier can agree to waive the lien. However, the waiver may come at a cost, typically a reduction in the amount of money the employer/carrier are willing to pay to settle the workers’ compensation case.

More often, employers and carriers do not agree to waive liens. Fortunately, very rarely does the amount paid to satisfy a workers’ compensation lien equal the full amount of the lien.

440.39 describes the formula for satisfying the lien. The formula has been explained in clearer terms in the Florida Supreme Court case Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990).

This is the formula: Third party settlement amount less (-) attorney fees and costs divided by (/) full case value = the % value of the wc lien.; and here is the formula by way of an example:

  • WC lien (medical, indemnity, settlement, etc.): $ 100,000
  • $ 250,000 third party settlement less fees (40%) and costs = $ 135,000
  • Full case value: $ 1,000,000. (Settled for less due to tough liability, coverage limits, etc.)
  • $ 135,000 divided by $ 1,000,000 = 13.5%
  • 13.5% of $ 100,000 = $ 13,500.

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    scales of justice.jpgMost Florida accident cases involving personal injuries – e.g., motor vehicle; premises liability; medical malpractice – include an element of monetary compensation for pain and suffering damages sustained by victims through the fault of others. Workers’ compensation claimants are not entitled to compensation for pain & suffering.

    Florida’s workers’ compensation system was established more than 75 years ago to provide basic benefits (medical and indeminty) to injured workers without regard to fault. In theory, the entitlement to benefits is supposed to be as simple as establishing that the claimed injuries have resulted from an accident occurring in the course and scope of the employment. As long as the accident was not caused by horseplay or intentionally by the person injured, workers’ compensation benefits are supposed to be provided. This is so even if the accident was the fault of the injured worker.
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