Florida Injury Attorney Blawg

July 22, 2022

Jeffrey P. Gale, P.A. // Florida Motor Vehicle Insurance Protections Gutted by The Graves Amendment

Companies make billions of dollars leasing and renting their motor vehicles. You’d think they’d have some corresponding corporate responsibility to compensate individuals injured through no fault of their own by the negligent operation of their vehicles. They don’t.

The Florida Legislature once believed they did. They may still feel this way, but its will has been overridden by Federal law.

While section 324.021(9), Florida Statutes requires rental and leasing companies to maintain a substantial minimum amount of liability insurance on their vehicles operated in the state, it has been superseded by 49 U.S. Code Sec. 30106, also known as the Graves Amendment, which was enacted into law in 2005.

July 19, 2022

Jeffrey P. Gale, P.A. // Florida Liability Insurance Carriers Not Obligated by Duty of Good Faith to Settle Claims of All Insureds

by Jeffrey P. Gale, P.A.

Florida liability insurance policies often provide coverage to many individuals, including those not named in the policy. For example, the standard Florida motor vehicle policy will insure vehicle owners and unlisted permissive users. This was the scenario in Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16 (Fla. 4th DCA 2006).

Insurance companies are obligated under Florida law to act in good faith and with due regard for every insured’s interests. Boston Old Colony Insurance Company v. Gutierrez, 386 So.2d 783 (Fla. 1980). Under this duty, carriers must give fair consideration of any settlement opportunity and settle the claim when it can and should do so. Powell v. Prudential Property & Casualty Ins. Co., 584 So. 2d 12, 13 (Fla. 3rd DCA 1991).

In Contreras, a permissive user struck and killed a pedestrian while driving at a high rate of speed after consuming alcohol. Both the owner of the vehicle and the permissive user were covered under a U.S. Security motor vehicle liability insurance policy. Coverage under the policy for wrongful death was limited to $10,000.

May 12, 2022

Jeffrey P. Gale, P.A. // Limiting Social Security Disability Offset After Florida Workers’ Compensation Settlement

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system provides for three types of weekly indemnity benefits:

440.15(1) Permanent Total Disability

440.15(2) Temporary Total Disability

400.15(4) Temporary Partial Disability

An injured worker may simultaneously be eligible for monthly Social Security Disability benefits under 42 U.S.C. s. 423. If the combined benefits exceed 80% of the claimant’s workers’ compensation average weekly wage (AWW), section 440.15(9), Florida Statutes, allows the workers’ compensation carrier to reduce its payment until the combined amount gets down to 80%. (The state precedence is authorized by 42 U.S.C. § 424a(d).)

Not every state allows the insurance carrier to take an offset. In the absence of the carrier taking an offset, the federal government may take an offset. (The federal offset formula, contained at 42 U.S. Code Sec. 424a – Reduction of disability benefits, is somewhat different than Florida’s workers’ compensation formula.)

While the claimant is receiving periodic workers’ compensation indemnity payments and the carrier is taking the offset, it is unlikely the Social Security Administration (SSA), which administers SSD, is entitled to an offset. However, most Florida workers’ compensation cases resolve with a lump sum washout settlement resulting in the termination of periodic payments. Surprisingly, at this point, the SSA is eligible to begin taking offsets. (The SSA offset applies even when the WC claimant does not qualify for SSD until after a settlement. Additionally, where the SSA had the right but failed to take the offset, resulting in “overpayments,” the SSA may recover the overpayments.)

May 1, 2022

Jeffrey P. Gale, P.A. // Exculpatory Clauses Place Florida School Children at Risk

by Jeffrey P. Gale, P.A.

One of the main goals behind holding individuals and corporations accountable for the damage caused by their negligence is to make society a safer place. The thinking is that to avoid the substantial hassle and expense of lawsuits and damage awards, thoughtful people will act reasonably.

An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury. Elalouf v School Board of Broward County, 311 So.3rd 863, 865 (Fla. 4th DCA 2021). Exculpatory clauses are commonly used against children in Florida’s public and private schools.

April 30, 2022

Jeffrey P. Gale, P.A. // Florida Tortfeasors Do Not Benefit From Negotiated Subrogation Waivers

by Jeffrey P. Gale, P.A.

Liability insurance carriers pursue every avenue to limit the amounts they must pay in damages to harmed parties. One avenue at their disposal is Florida Statute 768.76(1):

In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.

768.76(2)(a) defines “Collateral sources” as follows:

(a) “Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:

1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.

2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.

3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.

4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

Interestingly, under 768.76(2)(b), “Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiff’s recovery, the Workers’ Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health shall not be considered a collateral source.”

Subpart (2)(b) is there to make it clear that the enumerated programs have a right of subrogation or reimbursement. However, as suggested by the second clause of subpart (1), there can be other entities that have paid compensation to the benefit of the claimant with the right of subrogation or reimbursement. The most common of these are health and disability insurance carriers.

April 29, 2022

Jeffrey P. Gale, P.A. // UM Carrier Not Entitled to Setoff for Benefits Paid by Private Health Insurance

by Jeffrey P. Gale, P.A.

The law disfavors windfall recoveries and insurance carriers are always seeking to be the beneficiaries of this public policy. One way carriers seek to benefit from this policy is by reducing jury verdicts by amounts recovered in damages from other sources. This is known as “Setoff.”

Uninsured and underinsured motor vehicle coverage is an optional form of insurance provided in motor vehicle insurance policies “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.” Section 627.727(1), Florida Statutes.

The statutory section contains the following setoff language:

April 26, 2022

Jeffrey P. Gale, P.A. // Vicarious Liability of Owners-Builders for Personal Injuries

by Jeffrey P. Gale, P.A.

In the interest of public health, safety, and welfare, most construction projects require the services of licensed contractors. See Section 489.101, Florida Statutes. Section 489.103 outlines various exemptions to this public policy. One of the exemptions, contained in 489.101(7)(a), applies to “Owners of property when acting as their own contractor and providing direct, onsite supervision themselves of all work not performed by licensed contractors.”

To impress upon owners the significance and consequences of operating as their own contractors without being licensed, the statute contains a 12-part section titled “Disclosure Statement.” The owner is required to sign this form for the local permitting agency.

In general, Florida law provides that “[A] property owner who employs an independent contractor to perform work on his property will not be held liable for injuries sustained by the employee of an independent contractor during the performance of that work.” Strickland v. TIMCO Aviation Servs., Inc., 66 So. 3d 1002, 1006 (Fla. 1st DCA 2011).

March 24, 2022

Jeffrey P. Gale, P.A. // $2 Million Settlement Achieved by Circumventing Florida’s Workers’ Compensation Immunity Law

by Jeffrey P. Gale, P.A.

What began as a product liability investigation, ended in a $2,000,000 personal injury settlement against the owner of an altered riding lawnmower (pictured).

Our client lost his right leg when run over by the lawnmower he was operating for his employer. Initially thinking that the mower was owned by the employer, which would give the employer workers’ compensation immunity, we set our sights on a product liability case as the only way to secure a civil remedy for our client.

We quickly discovered that any products liability case was barred by Florida’s Statute of Repose. We also learned that our accident was caused by a post-manufacture alteration to a safety feature.

February 18, 2022

Jeffrey P. Gale, P.A. // Miles Fee Is Customary And Presumptively Correct In Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

Until six years ago, it was a crime in Florida for an attorney to accept a fee from a claimant in a workers’ compensation case that was not approved by a Judge of Compensation Claims (JCC) in accordance with the fee formula contained in section 440.34(1), Florida Statutes. Section 440.105(3)(c), Florida Statutes. The crime was punishable by up to one year in prison (s. 775.082) and a fine (s. 775.082). Any lawyer violating 440.105(3)(c) could also expect to be suspended or disbarred.

In Miles v. City of Edgewater Police Dept/Preferred Governmental Claims Solutions, 190 So. 3d 171 (Fla. 1^st DCA 2016), the JCC rejected an attorney/client contract wherein the client, an injured worker, and her union agreed to pay a workers’ compensation lawyer a fee in excess of the amount allowed under 440.34. Because it would have been a financial hardship for the lawyer to handle the case under the formula set forth in 440.34, she withdrew from the case. Unable to find a lawyer to take her case, the injured worker proceeded Pro Se. Her claims were denied by the JCC.

Claimant argued on appeal that Florida Statutes 440.105 and 440.34 violated the First Amendment of the Constitution of the United States and the fundamental right to contract. The First District Court of Appeal agreed.

At its heart, Miles is about freedom of speech and the right of individuals to contract freely for legal services. The Court found that 440.105 and 440.34 violated both rights:

In conclusion, the restrictions in sections 440.105 and 440.34, when applied to a claimant’s ability to retain counsel under a contract that calls for the payment of a reasonable fee by a claimant (or someone on his or her behalf), are unconstitutional violations of a claimant’s rights to free speech, free association, and petition — and are not permissible time, place, or manner restrictions on those rights. Likewise, those provisions also represent unconstitutional violations of a claimant’s right to form contracts — and are not permissible police power restrictions on those rights. Miles at 184.

December 21, 2021

Jeffrey P. Gale, P.A. // Where the Insurance Policy is Delivered Can Matter

by Jeffrey P. Gale, P.A.

We recently resolved a case involving a reimbursement dispute under an Occupational Health & Disability Insurance Policy. Our client, an independent trucker, had sustained catastrophic injuries from being struck by a motor vehicle as he was changing a tire while parked in a gore on I-95 in Florida. He was hospitalized in intensive care and was unable to return to work for nearly two years. Thankfully, he was covered under the insurance policy, which paid his medical bills and lost wages.

The insurance policy contained language entitling the carrier to be reimbursed in full from any money our client was paid as a result of the accident.

We sued two individuals and a company seeking damage compensation for our client. After litigating the case for more than three years, we secured a reasonable settlement. We held the money in trust pending resolution of the Occupational Health & Disability Insurance carrier’s reimbursement claim. Unable to work out the claim amicably, we filed a petition to resolve the claim with the court that handled the underlying personal injury case. (Anticipating problems in resolving the reimbursement claim amicably, we asked the court to retain jurisdiction for that eventuality. Doing so allowed us to keep a smart judge and avoid a new filing fee.)

The policy contained the following language: “The Policy is governed by the laws of the jurisdiction in which it is delivered.”

The insurance carrier was home based in another state and the policy was made available to large companies throughout the United States who used independent drivers like our client, through a trust company based in Washington, DC. The carrier argued that Washington, DC law applied to the reimbursement claim since the policy was delivered to the trust in DC. Under DC law, the terms of the policy would control. This would effectively enable the carrier to recover 100% of the underlying settlement without our client netting anything. (The underlying case had exceedingly difficult liability issues. The most at-fault person, who was intoxicated, had no insurance and died penniless before we got the case. We ended up suing a separate company, which was responsible for highway assistance, for failing to have proper warning lights on its vehicle. We received a sizeable settlement, but the amount paid by the OH&D carrier was more sizeable.)

We argued that Florida law, in particular, Florida Statute 768.76(4), applied to the reimbursement dispute. Under this statute, the court would be allowed to reduce the reimbursement amount owed by taking various equitable factors into consideration including procurement costs and comparing the settlement amount to the full value of the case. See Jeffrey P. Gale, P.A. // Resolving Health and Disability Insurance Liens in Personal Injury Cases Under Florida Statute 768.76.

FLORIDA INJURY ATTORNEY BLAWG