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vehicle rollover.jpgVehicles like the Ford Bronco II, Ford Explorer and 15-passenger vans are designed with an unreasonable risk of rollover. Although there are many things manufacturers can do to prevent rollover accidents, rollover accidents will occur in vehicles considered safe. Knowing this, manufacturers should implement safety features designed to limit rollover accident injuries.

Although rollover accidents constitute 1.74% to 6.3% of all accidents depending on the type of vehicle involved, they account for 33% of all serious injuries and death.

Amazingly, the federal government does not require manufacturers to conduct rollover accident testing. The consequence of this is a gap in knowledge in how best to prevent rollover accident injuries and many vehicles lacking available equipment to optimally protect occupants in a rollover.
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Florida civil litigation lawyers rely on a few basic Internet reference resources in almost every case. Some are free, others are not.

The free links include:

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Florida premises liability law is the body of law which makes the person who is in possession of land or premises responsible for certain injuries suffered by persons who are present on the premises. It is a negligence-based system, meaning that responsibility is apportioned in accordance with fault. This is known as the concept of comparative fault. See Florida Statute 768.81, entitled Comparative fault.

Under this system, the jury is charged with determing fault among the plaintiff, the defendant, and others who may not even be parties to the lawsuit. The jury must also place a monetary value on the damage sustained by the plaintiff. These two findings make up what is known as the [jury’s] verdict.

A jury verdict is not the same thing as a final judgment. Only judges render final judgments.

In rendering final judgments, judges consider a variety of factors. The jury’s findings regarding fault and damages are two of the most important factors.

A simple example, without consideration of any factors other than the jury verdict, will illustrate how the system works: Assume that Mr. Jones, a visitor to a friend’s condominium, trips on a large crack in a poorly lit underground parking lot while walking into the building. He falls hard to the ground, landing on his chin and head, sustaining a severe laceration and a concussion. Fire Rescue is summoned and he is transported to the hospital. The building and lot are controlled by a condominium association that has hired a management company to maintain the premises. It is learned that the large crack has existed for years and caused many other accidents. Unable to settle his case out of court, Mr. Jones sues the condo association and the management company for negligence. The jury returns a verdict in the amount of $500,000, but apportions fault at 75% (condo. association/management company)/25% (Mr. Jones). Based on the concept of comparative fault, the final judgment for Mr. Jones will be $375,000, or 75% of the total damages found by the jury.

Until 1973, Florida applied the law of contributory fault in all negligence cases. Under this concept, the plaintiff would be barred from any recovery if it was determined that he or she was at fault in any way, even only 1%. In our example, this would mean that Mr. Jones, although only 25% at fault, would receive nothing for his injuries.
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chamber of commerce.jpgWhen it comes to the civil justice system, the U.S. Chamber of Commerce is a hypocritical ass.

While the U.S. Chamber of Commerce spends millions of dollars and focuses immense resources on lobbying campaigns aimed at limiting regular consumers’ access to the courthouse – the group’s affiliate, the Institute for Legal Reform, works every day to add barriers and restrictions to the right of individuals harmed by corporations to file lawsuits against corporations – the National Chamber Litigation Center, the part of the organization charged with filing lawsuits on behalf of the group, annually initiates over 130 suits, more than 2 a week.

In October, 2010, Chamber President and CEO Tom Donohue explained that litigation is, “one of our most powerful tools for making sure that the federal agencies follow the law and are held accountable.”

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avis.jpgOur law firm (along with co-counsel firm Domnick & Shevin, LLP) is currently involved in litigation against the Enterprise car rental company.

In 2008, Enterprise rented a vehicle, in Miami, to a person whose Florida driver’s license was under suspension for failing to appear in court on a number of motor vehicle moving violations. After his credit card was rejected, forcing him to leave the rental agency to obtain cash, he returned with the cash and presented a facially valid (although unlawfully obtained) Texas driver’s license to the rental agent. Enterprise rented him the vehicle.

A few days later, the renter caused a high-speed rollover accident in the Enterprise vehicle on I-75 near Gainesville, Florida. Our client, a passenger in the vehicle, was airlifted to Shands Hospital with life-threatening injuries. She remains severely disabled, in great pain, and unable to work.

A quick and inexpensive (less than $1.00) Internet database search, based on name and birth date, performed by the Enterprise agent, would have disclosed the customer’s license suspension and traffic record. However, since the agent was not instructed or authorized by Enterprise to perform such a search, one was not done.

We sued Enterprise on the theory that it negligently entrusted its vehicle to the at-fault driver. Enterprise claims that it did nothing wrong.

What is Enterprise’s primary defense? Florida Statute 322.38(2).

322.38(2) provides as follows – No person shall rent a motor vehicle to another until he or she has inspected the driver’s license of the person to whom the vehicle is to be rented, and compared and verified the signature thereon with the signature of such person written in his or her presence.

Enterprise argues that 322.38(2) is a safe harbor provision providing it with absolute immunity from fault, that despite the ease and nominal cost of determining the prospective customer’s license status and driving record, its only responsibility to the public was to inspect the Texas driver’s license and compare and verify the signature thereon.

The Plaintiff’s (our client) position is that 322.38(2) is not a safe harbor provision extending absolute immunity to Enterprise or any other rental agency. Rather, it is a minimum standard established by the Florida Legislature to create some level of safety for those who travel on the streets and highways of the state, but it is not the only standard that can be considered by judges and juries to determine reasonable conduct under every circumstance.

It is simply not the Legislature’s role to instruct companies how to conduct every aspect of their business. Those business decisions are left to the judgment of the companies, with the understanding, however, that poor decisions or worse can result in serious legal consequences.

Such is the scenario in our case. Enterprise did nothing more than the bare minimum. A judge and jury will now decide if this conduct was reasonable under the circumstances. We do not believe that it was, thus our claim for negligent entrustment. Clearly, Enterprise could have done more.
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Florida Statute Section 440.09(4)(a) provides that an employee shall not be entitled to workers’ compensation benefits if the employee has intentionally or knowingly engaged in any of the acts described in s. 440.15 for the purpose of securing workers’ compensation benefits.

Knowingly presenting false ID to obtain employment is an act described in s. 440.15 as being prohibited. Will performing such an act prevent an employee injured on the job from receiving workers’ compensation benefits?

In Matrix Employee Leasing and FCIC/First Commercial v. Hernandez, 975 So.2d 1217 (Fla. 1st DCA 2008), Mr. Hernandez obtained employment by presenting an invalid social security card. The employer did not learn that the card was invalid until the day Mr. Hernandez was hurt on the job.

Relying on 440.15 and 440.09, the Employer/Carrier denied benefits. The claimant countered that because the invalid ID was used to obtain employment rather than secure workers’ compensation benefits, benefits should not be denied. The JCC [Judge of Compensation Claims] agreed, ordering the E/C to pay workers’ compensation benefits. The E/C appealed the JCC’s order.
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Fault (or negligence) is always an issue in Florida motor vehicle accident personal injury cases. For an individual to be successful in claiming damages against another party, the claimant has the burden of proving that the other party caused the accident.

In some cases, proving fault is an easy matter. In others, the issue will be hotly contested. In those cases, the plaintiff – the party seeking damages – needs evidence to prove her or his case. One place to look (for evidence) is in the traffic court records.

In most Florida motor vehicle accidents, an investigating law enforcement officer will issue a traffic infraction/ticket to one or more of the involved parties. The ticket can be an expression of the investigating officer’s opinion with regard to fault. For example, a driver may be ticketed for following too closely or for failing to yield the right of way.

Although the traffic infraction itself is not admissable as evidence of guilt in a civil case arising out of the accident, the defendant’s response to the traffic charge may be.

With a few exceptions, Florida Statute Section 318.14(4)(a) allows any person charged with a noncriminal traffic infraction to pay the civil penalty by mail or in person without the effective admission of guilt being used as evidence in any other proceedings. “[O]ther proceedings” includes a civil action arising out of a traffic accident.

For purposes of motor vehicle accidents, the most important exceptions to 318.14(4)(a) are contained in Florida Statute 318.19, which contains a list of traffic infractions requiring a mandatory hearing. Those infractions are:

  1. Any infraction which results in a crash that causes the death of another;
  2. Any infraction which results in a crash that causes “serious bodily injury” of another as defined in s. 316.1933(1);
  3. Any infraction of s. 316.172(1)(b);
  4. Any infraction of s. 316.520(1) or (2); or
  5. Any infraction of s. 316.183(2), s. 316.187, or s. 316.189 of exceeding the speed limit by 30 m.p.h. or more.

Unlike the allowance contained in 318.14, a guilty plea in one of the 318.19 exceptions can be used as evidence in any other proceedings, including a civil case for damages. (The record of the plea is admitted, not as establishing the fact [of fault], but as a deliberate declaration or admission of the party himself that the fact is true. Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216, 218 (Fla., 1967).)
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Many people mistakenly believe that maintenance and unearned wages for injured seamen are the same benefit. They are not.

Seamen injured while working on the high seas are entitled to no-fault benefits, in other words, benefits regardless of why the accident happened. Among those benefits are Maintenance & Cure, and unearned wages.

Maintenance is to compensate the seaman for the value of quarters and meals furnished aboard the vessel. The benefit commences on the date the seaman leaves the ship, not the date of the injury, and ends in most instances when the seaman has reached maximum medical cure.

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Not surprisingly, in Jennifer Kauffman v. Community Inclusions, Inc./Guarantee Insurance Company, filed on March 23, 2011, the Florida First District Court of Appeal issued an opinion finding constitutional a Florida law, Statute 440.34, that is designed to limit the ability of injured workers to obtain workers’ compensation benefits.

The Jennifer Kauffman appeal arose out of a lower court order awarding Ms. Kauffman’s attorney a fee in the amount of $648.41. The employer/carrier were ordered to pay the fee because they had lost at the trial level in their effort to deny workers’ compensation benefits to Ms. Kauffman, who was injured on the job. Her attorney spent 100.3 hours in the successful prosecution of the claim, meaning that he was awarded $6.48 per hour. (Although JCC E. Douglas Spangler, Jr. concluded in his appealed court order that the fee was patently unreasonable, he felt constrained by the statute to award the amount he did. In his opinion, based on evidence presented at the fee hearing, a reasonable fee would have been $25,075. Judge Spangler was also dismayed that the employer/carrier were able to pay their own defense attorney $14,720 in a losing effort.)
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Since the establishment of a workers’ compensation system in Florida more than 80 years ago, business and insurance interests have steadily tried to whittle away workers’ rights with varying degrees of success. The high water mark for them arrived in the late 1990s with the election of Jeb Bush as Florida’s Governor. For the next eight years, injured workers absorbed one crippling body blow after the other from Bush and his merry band of right-wing zealots in the Florida Legislature anxious to maximize the profits of the business community at the expense of individual rights. (Jeb adopted for Florida many of the measures that his brother George before him had imposed in Texas during his reign as that state’s Governor. Get the picture?)

One of the more onerous examples of rights-limiting workers’ compensation imposed in Florida is set forth at Section 440.09(1)(b) of the Florida Statutes. This section, known as the Major Contributing Cause (MCC) Doctrine, places the burden on injured workers to prove that the industrial accident is more than 50% responsible for causing the injury. An injured worker who fails to meet this burden will be denied ALL medical care and lost wage benefits from the employer. (In contrast, the personal injury system does not summarily deny compensation to persons with pre-existing conditions whose injuries were activated, i.e., made to become symptomatic, or aggravated (permanently worsened) by an accident. Instead, the finder of fact carves out the pre-existing element from the recovery and awards the difference. Not so under Bush’s MCC system.)

The MCC is used as a defense in many cases. The E/C try to blame 50% or more of a claimant’s injury on a pre-existing condition. For older workers and those with similar prior complaints, the defense can be difficult to overcome. Sadly, many an injured worker has been denied workers’ compensation benefits because of the MCC.

Fortunately, the First District Court of Appeal has carved out an important exception to the MCC doctrine. In Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007), the court held that an employee need not meet the rigorous MCC requirements when her or his pre-existing condition is occupationally related.
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Email: jgale@jeffgalelaw.com

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