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king.jpgSovereign Immunity derives from the medieval principle that “The King can do no wrong.” Prior to 1975, its application in Florida meant that the government could not be sued for damages caused by its wrongdoing. In that year, the Florida Legislature enacted Florida Statute 768.28, which allowed actions against the state or any of its agencies or subdivisions (e.g., cities, municipalities, counties). However, the statute capped the amount that could be recovered, regardless of the actual damages in a case, and it allowed to stand absolute immunity for planning level decisions.

From the statute’s original enactment until July 1, 2011, a period of 36 years, the damage caps stood at $100,000 per individual, $200,000 total per claim. For example, if 4 people were catastrophically injured by the negligence of a government employee, the most any one individual could recover was $100,000, leaving the other 3 to share the remaining $100,000. (The $200,000 could also be split equally among the four or any other way, so long as any one victime did not receive more than $100,000.)

In 2009, the Florida Legislature passed a bill upping the damage caps to $200,000/$300,000 effective July 1, 2011. The increase, although far from adequate in many cases, was a long time coming and a positive step.

The statute has left untouched absolute sovereign immunity for the discretionary, judgmental, planning-level decisions of a governmental entity. Examples include decisions concerning the initial plan, road alignment, traffic control device installation, the improvement of roads and intersections, and defects in the construction of a road, median, and intersection.

However, once the sovereign becomes aware of a hazard so serious and so inconspicuous to a foreseeable plaintiff that it virtually constitutes a trap, the planning level absolute sovereign immunity is waived, bringing into play the damage caps discussed above.

Countless wars have been fought over whether planning level immunity applies or has been waived.
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burning van.jpgI have blogged here in the past that the 2011 Republican-controlled Florida Legislature seemed bound and determined to gut one of the state’s most important laws at holding vehicle manufacturers accountable for producing defective products. Although some within the legislature may have had this outcome as a goal, reasonable minds prevailed in the 2011 legislative session to the extent that the legislative body’s modifications did not eviscerate the law as many within the civil justice community had feared.

The principle of law under discussion is the crashworthiness doctrine. It stands for the proposition that vehicle manufacturers can be liable for harm caused by unsafe vehicles, even if the vehicle was put to the test by another negligent party. Kidron v. Carmona, 665 So. 2d 289 (Fla. 3rd DCA 1995) (following Larson v. General Motors, 391 F. 2d 495 (8th Cir. 1968)).

The principle was later bolstered by the holding in D’Amario v. Ford, 806 So. 2d 424 (Fla. 2001), which limited the use of comparative fault in crashworthiness cases.

In D’Amario a minor was the passenger in a vehicle that struck a tree. A fire began that ended in an explosion, causing the minor to lose three limbs and suffering burns to much of his body. The fire resulted from a defective relay switch manufactured by Ford.

The minor and his mother sued Ford for the damages resulting from the defective switch. They did not seek to recover compensation from Ford for injuries from striking the tree.

At trial, Ford sought to introduce evidence as to the cause of the initial accident, which was that another minor was intoxicated and negligently drove the vehicle into the tree. The plaintiffs (mother and son) argued that this evidence was irrelevant to the claim for damages caused by the defective switch. The trial court admitted the evidence, meaning that it allowed the jury to hear the evidence. The jury returned a verdict for Ford.

The case was appealed and made its way to the Florida Supreme Court. The court considered cases from other states and concluded that the majority view in the nation was that such impact evidence was relevant. Nevertheless, the Florida Supreme Court adopted the minority view, ruling in favor of the catastrophically injured minor and his mother.

Before D’Amario, in crashworthiness cases jurors were allowed to hear evidence of the driver’s fault and apportion damages against the driver. This tended to direct the focus of responsibility onto the negligent driver and take it off the manufacturer whose defective product caused the enhanced injury. D’Amario eliminated the chance of such evidence distracting, confusing, or angering juries.

Not surprisingly, automobile manufacturers have been trying for ten years to reverse D’Amario. Many thought their goal would be accomplished in the 2011 legislative session. Although a measure was proposed that would have satisfied the manufacturers, amendments filed on the Senate Floor by Senator David Simmons (R) and passed by both chambers of the Legislature prevented the crashworthiness doctrine from being eliminated altogether in Florida. The bill that passed, which does modify D’Amario, revised Florida Statute 768.81.

The revised 768.81(3)(b) provides as follows:

In a products liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them. The jury shall be appropriately instructed by the trial judge on the apportionment of fault in products liability actions where there are allegations that the injuries received by the claimant in an accident were enhanced by a defective product. The rules of evidence apply to these actions.

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drunk.jpgPersonal injury cases against drunk drivers present positive opportunities for Plaintiff lawyers to seek punitive damages and recover enhanced compensatory damages (e.g., pain & suffering; lost wages).

Punitive Damages

The procedure for claiming punitive damages and the standards for holding a defendant liable for punitive damages are set forth in Florida Statute 768.72.

A claim for punitive damages may not be plead in the initial complaint. Rather, the Plaintiff must seek leave of court to amend the complaint to claim punitive damages. The judge should allow the amendment if evidence in the record or proferred by the Plaintiff provides a reasonable basis for recovery of such damages. Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996) and F.S. 768.72(1). Contrary to the proposition often put forward by Defendants, the statute does not require an evidentiary hearing to permit the amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court’s determination. Strasser v. Yalamanchi, 677 So.2d 455 (Fla. 2d DCA 1981).

768.72 says this about what must be shown to establish liability:

(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:

(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

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hummer.jpgFlorida’s dangerous instrumentality doctrine imposes vicarious responsibility upon the owner or other possessor of a motor vehicle who voluntarily entrusts it to another for any subsequent negligent operation which injures a member of the traveling public. Jackson v. Hertz Corporation, 590 So.2d 929, 937. See Kraemer v. General Motors Acceptance Corp., 572 So.2d 1363 (Fla. 1990); Susco Car Rental Sys. v. Leonard, 112 So.2d 832 (Fla. 1959); Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947); Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920); Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975 (1917).
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scales of justice.jpgIn its infinite, albeit, less than perfect wisdom, American jurisprudence places on the party asserting a claim the burden of proving the claim. In criminal and civil cases, the proponent must, to use a sports analogy, outscore the opponent in order to win. A tie or less is never a victory but often a defeat. The standard in Florida workers’ compensation cases may be an exception to the rule.

Everyone is familiar with the standard of proof in criminal cases. For a defendant to be convicted, the prosecution must prove the defendant’s guilt beyond and to the exclusion of any reasonable doubt. In college football terms, this is the equivalent of a 63-10 pasting.

This is an extremely high standard, as well it should be.

The burden of proof is not nearly as high In civil cases (e.g, personal injury; medical malpractice; premises liability). Nevertheless, the proponent (i.e., Plaintiff; Claimant; Petitioner) maintains the burden of presenting evidence that tips the scale in his or her favor, i.e., the weight of the evidence must favor the proponent by at least 51%. The standard is described in Florida Standard Jury Instruction 401.3 GREATER WEIGHT OF THE EVIDENCE as follows:

“Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

Instead of a 63-10 shellacking, a last second field goal for a 1 point victory will do the job.
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Through legal doctrines such as those pertaining to dangerous instruments (e.g., motor vehicles), principals & agents, and employers & employees, passive tortfeasors can be held liable for the active negligence of others. An active tortfeasor is the person whose negligence has caused an accident, while a passive tortfeasor is the person or company made liable through one or more legal doctrines such as those mentioned above. This type of liability on the part of the passive tortfeasor is known as vicarious liability.

Examples: #1: Through the dangerous instrumentality doctrine, the owner of a motor vehicle will be liable for damages caused by the permissive driver of that vehicle. #2: An employer will be responsible for the damages caused by its employee in the course and scope of the employment. (Our law firm is currently in suit against Mears Destination Services, Inc. for an accident caused by the driver of one of its buses. Mears is vicariously liable under both examples.)

For various practical and strategic reasons, it is sometimes beneficial for the Plaintiff (the party harmed) to reach a settlement with the active tortfeasor, while the passive tortfeasor remains a Defendant in the case. Can this be done without [the Plaintiff] losing the right to continue his or her fight against the passive tortfeasor? Although it may seem counterintuitive, the answer is Yes.

This wasn’t always so. It took statutes then court opinions based on the statutes to change the law. The first positive Florida statute was enacted in 1957, while the first good appellate decision interpreting the statute was Hertz Corp. v. Hellens, 140 So.2d 73 (Fla. 2d DCA 1962). Since then, Florida law has become even clearer on the subject through the following authorities:

Florida Statutes:

Case Law:

Another aspect that was, but is no longer problematic when settling with active tortfeasors concerns dismissals with prejudice. In JFK Medical Center, Inc. v. Price, 647 So. 2d 833 (Fla. 1994), a medical malpractice case, the Plaintiff settled with the active tortfeasor doctor, agreeing to dismiss the case against him with prejudice. The passive hospital, which was a party due to its alleged employer/employee relationship with the doctor, moved for summary judgment on the theory of res judicata, arguing that the claim against it was barred by the active tortfeasor being dismissed with prejudice. The trial court granted the hospital’s motion. The 4th DCA reversed the trial court and the Florida Supreme Court approved the appellate court’s decision, holding “that a voluntary dismissal of the active tortfeasor, with prejudice, entered by agreement of the parties pursuant to settlement, is not the equivalent of an adjudication on the merits that will serve as a bar to continued litigation against the passive tortfeasor.” 647 So. 2d at 834.
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The Fair Labor Standards Act (FLSA) authorizes piece rate pay. However, the Act also requires the payment of overtime wages for every piece rate hour over 40 worked weekly. 29 U.S.C. § 207(f) (2010).

The overtime rate is determined by establishing the “regular rate of pay,” § 207(e) (2010), which is done by dividing the employee’s total weekly earnings by the number of hours worked. The overtime rate is 50%, or 1/2, of the regular rate of pay.

For example: An employee is paid $400.00 for 50 hours of piece rate work in a week. $400 divided by 50 results in a regular rate of pay of $8.00 per hour, making the overtime rate $4.00. The employee’s pay should have been $440.00 (50 x $8.00 + 10 x $4.00).
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clock.jpgThe Fair Labor Standards Act (FLSA) is full of twists and turns. Here are just a few of them:

On the Clock: With the everyday use of cellular phones, computers, emails, and text messaging, employers can find themselves facing claims for FLSA overtime wage claims for heretofore unexpected reasons. Employees performing work activities such as responding to emails, text messages and telephone may be considered “on the clock” for purposes of the FLSA.

If enough employees are involved, the consequences can be devestating to the employer. ABC News recognized the threat when it stripped all of its writers of company-issued BlackBerrys. Employees of publicly traded real-estate company CB Richard Ellis are pursuing a collective claim for OT wages for required after-hours use of their BlackBerrys.

The FLSA is clear that non-exempt employees are entitled to compensation at 1.5 times the hourly rate for all time over 40 worked in a week. Two exceptions:

De Minimis Time: Not all time non-exempt employees work over 40 in a week is compensable at 1.5 times the normal rate. The exception is for de minimis time.

The Department of Labor describes this time as being a few seconds or minutes duration beyond the scheduled time. The various appellate courts do not hold a uniform view, keeping the door open to litigation. The US Court of Appeals, Federal Circuit, in Carlsen v. United States, 521 F.3d 1371 (Fed. Cir. 2008), suggested that 10 minutes was the cutoff. The Ninth Circuit Court of Appeals rejected the idea of time alone being the determining factor for whether an activity is de minimis. In Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984), it established three considerations: “(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.” Id. at 1063.
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Florida Statutes section 627.733, entitled Required Security, requires all motor vehicle owners to maintain “no-fault” automobile insurance covering, among other items, 80% of the insured’s own medical expenses. See §§ 627.733(1), (3)(a), 627.736(1)(a). The typical Florida PIP policy has a $10,000 coverage limit with deductibles of up to $2,000.

From a fair reading of the statutes it seems that every vehicle owner who procures the mandatory no-fault coverage is exempted from tort liability for 80% of medical expenses and 60% of lost wages up to the PIP policy limit (typically $10,000).

However, what happens when the fault-free party fails to maintain the required PIP coverage? In other words, the non-negligent party is in violation of the law by failing to maintain PIP.

Until the Florida Supreme Court rules on the issue, the answer depends on where in Florida the accident happens.

Florida’s civil court system is divided into county courts, circuit courts, district courts of appeal, and the Florida Supreme Court. The county and circuit courts are the only trial courts within the system, while the DCAs and the Florida Supreme Court are dedicated appellate courts.
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wheelchair.jpgFlorida Republicans have controlled the state’s legislature and Governor’s office (Jeb Bush (1998-2006); Charlie Crist (2006-2010); Rick Scott (elected in 2010)) for more than 10 years. Their time in power has seen a decline in the rights and protections afforded Florida’s elderly and infirm. Bad legislation and funding cuts are the reasons for the decline.

The Republican policy of putting business interests before individuals explains the bad legislation and funding cuts. The beat goes on….

In its hard-hitting multi-part series, Neglected to Death, The Miami Herald exposes the sorry state of affairs involving Florida’s ALF/nursing home industry. (Here is a link to the newspaper’s latest story in the series, State of Failure.)

Examples since 2007:

  • Encouraged by Florida’s largest industry group, a dozen legislators came forward with 36 pieces of legislation to remove or weaken regulations – including parts of the Residents’ Bill of Righs that guarantees safety and protection to vulnerable adults. (This past legislative session saw 23 such bills.)
  • In 2009, lawmakers said that state regulators no longer have to report abuses and deaths to the Legislature, instead allowing them to keep the cases secret.
  • Republican lawmakers rejected a plan to crack down on rogue operators.
  • Saying they were too expensive, lawmakers blocked efforts to increase inspections by state agencies to once every 15 months.
  • AHCA inspectors – ACHA is the state agency charged with controlling conditions in the facilities – were stripped of the authority to call doctors to get residents removed from facilities, leaving the decision to the facilities.
  • During the 2011 legislative session, fellow Republicans tried to repeal a law sponsored by Sen. Mike Fasano requiring homes to carry life-saving heart devices. “It’s outrageous,” he said. “I shake my head in disbelief. The cost is minimal to what the cost of life is.

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