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In Patricia Farley v. Chase Bank, U.S.A, N.A., No. 4D09-651 (opinion published on June 9, 2010) (not final until disposition of timely filed motion for rehearing), the District Court of Appeal of the State of Florida, Fourth District, sent a cautionary message to those who fail to object within a reasonable period of time to incorrect account statements.

In every civil legal case, the initial burden of proof is upon the Plaintiff to present a prima facie case. In a lawsuit brought to collect a debt, this means that the Plaintiff/Creditor must come forward initially with probative evidence of the correct amount of the debt and the liability of the debtor. Without doing so, the Plaintiff/Creditor’s case will fail.

In the Farley case, before the lawsuit was filed Chase Bank had rendered an account statement to Ms. Farley. When Ms. Farley failed to pay or challenge the correctness of the statement, she was sued by the bank.

At the trial court level, Chase Bank came forward with evidence that Ms. Farley had received the account statement and failed to challenge its correctness. Ms. Farley insisted that Chase Bank must prove its case by providing an itemized copy of the account sued upon. The trial court disagreed with Ms. Farley, concluding instead that the bank had made a prima facie case by presenting evidence that Ms. Farley had failed to challenge the correctness of the pre-suit account statement. Ms. Farley’s appeal of the trial court’s decision was rejected by the 4th DCA.
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Florida employees injured at work may be entitled to retraining benefits. The procedure is outlined in Section 440.491 of the Florida Statutes.

Upon referral of an injured employee by the carrier (defined in section (1)(a) of 440.491), or upon the request of an injured employee, the Florida Department of Education (department) shall conduct a training and education screening to determine whether it should refer the employee for a vocational evaulation and, if appropriate, approve training and education or other vocational services for the employee. The department will not approve training and education unless it determines that the reemployment plan is likely to result in a return to suitable gainful employment.

If the department approves training and education, the money to pay for the services will come from the Workers’ Compensation Administration Trust Fund, established by s. 440.50. The training and education can be provided through community colleges, approved career centers, and other vocational services. Under some circumstances, the department will pay for a temporary residence at or near the facility where the services are being provided.
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Permanent Total Disability (PTD) is the only periodic (bi-weekly) monetary payment available to injured workers after maximum medical improvement (MMI) is reached. The standard for qualifying for PTD benefits has changed numerous times over the years.

When I began handling workers’ compensation cases, in 1987, to qualify for PTD benefits an injured worker had to have a listed injury such as total blindness, amputation of an arm, or a severe brain or closed head injury, or establish that he or she was unable to perform light duty work uninterruptedly. (Light duty is commonly recognized as: (1) no lifting > 20 lbs.; (2) frequent (1/3 to 2/3 of the time) lifting or carrying objects up to 10 lbs.; (3) standing 6 out of 8 hours per day; and (4) stand and use arms and hands.)

This standard applied until 1994, when the Florida Legislature, in a Special Session convened by Governor Lawton Chiles, replaced the light duty standard with a formula tied into the Social Security Disability (SSD) standard. The Legislature believed that this formula would make it more difficult for injured workers to qualify for workers’ compensation PTD benefits. In practice, however, just as many if not more injured workers qualified for PTD under this standard.

This did not sit well with Governor Jeb Bush and his corporate constituents, so in 2002, the Republican-controlled Florida Legislature changed the standard again. The SSD formula was replaced with the requirement that injured workers must show they are unable to engage in at least part-time sedentary employment within a 50-mile radius of the employee’s residence. (Sedentary duty is commonly recognized as: (1) no lifting > 10 lbs. at a time; (2) occasional (1/3 of time) lifting or carrying small articles like docket files, ledgers and small tools; (3) sit 6 hours during 8 hour day and stand and/or walk the remaining 2 hours; and (4) good manual dexterity in both hands.) When coupled with the Legislature’s companion 2002 changes curtailing the amount of attorneys’ fees an injured workers lawyer was allowed to receive, the change dramatically reduced the number of individuals who qualified for PTD benefits.

The standard proved so onerous, that the law was revisited a few years later. The outcome of the Legislature’s decision to reconsider resulted in our current law, which provides as follows: “[I]n order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” Section 440.15 Florida Statutes (2009).
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Individuals and companies sued in Florida on debts (real & fabricated) and delinquent mortgages are not without legal defenses or affirmative relief. Here is a checklist of some of the available legal principles:

  • Estoppel – Equitable, Promissory and Collateral.
  • The action is barred by the statute of limitations applicable to such actions.
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In my view, one of the most important decisions in the history of Florida workers’ compensation jurisprudence is Aguilera v. Inservices, Inc., 905 So.2d. 84 (Fla. 2005). In a nutshell, Aguilera authorized civil lawsuits against insurance carriers and their adjusters “for harm caused subsequent to and distinct from the original workplace injury.”

The Supreme Court opinion provides a great amount of detail about the harm to Mr. Aguillera caused by the insurance carrier’s adjuster, which I will not outline here. For purposes of this blog, suffice it to say that the adjuster made arbitrary, mean-spirited, baseless, and egregious decisions about medical matters which put Mr. Aguillera’s life at risk.

As a result, the insurance company and the adjuster were sued for civil damages in an action separate and apart from Mr. Aguillera’s workers’ compensation case. They defended by arguing that they were immune from being sued civilly, pursuant to Section 440.11, Florida Statutes, that any complaints about how the workers’ compensation claim was being handled must be addressed through the workers’ compensation case itself.

Although the 3rd District Court of Appeal agreed with the civil defendants, the Florida Supreme Court did not.

The Florida Supreme Court was careful to point out that its decision was not authorizing civil actions in cases involving simple claim delay or simple termination of workers’ compensation benefits. The court recognized that the workers’ compensation system had appropriate remedies for these situations. In other words, the civil remedy established by the court is limited to egregious and outrageous claims handling.

The importance of the decision is that carriers and adjusters know there is a line beyond which they cross at their own risk. This has induced them to handle claims very carefully and with due regard for the health of injured workers.
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Personal injury claims of individuals under the age of 18 present unique procedural demands for the legal practioner. For starters, the attorney represents the minor through the minor’s legal guardian, typically one parent or both. This is because minors cannot pursue claims through the court system or settle them, pre- or post-suit, on their own.

Whether or not any other procedural requirements must be met depends on the gross amount of the settlement. The chart below sets forth the standards for these other requirements.

POTENTIAL ADDITIONAL REQUIREMENTS:

Court Approval of Settlement Required:

  • Gross Settlement is $15,000 or less – No, unless a lawsuit has been filed, then yes. Sections 744.301(2) & 744.387(3)(a) Florida Statutes.

    Court approval is obtained by filing a Petition for Approval of Minor’s Settlement with the Court. The Petition should contain details of the case, including the issues of liability and damages, the amount of the settlement, and the amount of attorneys’ fees and costs. In many instances, the Court will approve the settlement without a hearing.

  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes. Section 744.387(3)(a).
  • Gross Settlement in excess of $50,000 – Yes. Section 744.387.

Need Legal Guardianship/Guardian of the Property Appointed:

  • Gross Settlement is $15,000 or less – No.
  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes, but only if the Net settlement (after gross settlement is reduced by attorney’s fees and costs) exceeds $15,000. Section 744.387(2).
  • Gross Settlement in excess of $50,000 – Yes, but only if the Net settlement exceeds $15,000. Section 744.387(2).

It is not unusual for the legal guardian and the guardian of the property to be the same individual or individuals. This person will be charged with collecting the amount of the minor’s net judgment and executing all necessary releases. However, the court will retain sole jurisdiction to determine the allocation and use of the minor’s net settlement, oftentimes insisting that it be put into a conservative account for safekeeping until the minor reaches majority. Until majority, whenever the legal guardian wishes to use the minor’s money, court approval must be obtained. The Court’s determination will be based on what is in the minor’s best interest.
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From reading United Automobile Insurance Company’s blog page, one could be mislead into believing that every claim made against United is frivilous. This is not my personal experience or that of most other lawyers familiar with United.

A simple inspection of the County Court records for Miami-Dade and Broward Counties will reveal a nearly countless number of resolved PIP (Personal Injury Protection) cases against United Automobile Insurance Company resulting from favorable Plaintiff settlements or verdicts, and an active docket of ongoing cases that, I daresay, will conclude in similar fashion. United’s unidentified blogger fails to disclose this crucial information, choosing instead to suggest that one or two cherry-picked unusual situations demonstrate the whole picture. They do not.

My recent experience: On Monday, May 10, 2010, I settled a PIP case with United inside the Miami-Dade courthouse shortly before our jury trial was scheduled to begin. The lawsuit had been filed in June of 2008 for the payment of PIP benefits to a United insured for medical services and physical therapy provided at Orthopedic Care Center (Aventura) under the guidance and control of a board certified orthopedist (the highest certification an orthopedist can achieve) for injuries resulting from a moderately serious motor vehicle accident.
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When the death of an individual is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person or company, including those occurring on navigable waters, who may be entitled to compensation for the loss is a matter of statutory design, the work of the Florida Legislature. The Legislature’s work is located in what is known as the “Florida Wrongful Death Act,” Sections 768.16 through 768.26 of the Florida Statutes. The particular section of the Act dealing with damages is 768.21 .

Wrongful Death claims are brought through an Estate by a Personal Representative on behalf of those entitled to compensation. In most cases, the Personal Representative is a surviving family member and also entitled to compensation. The Personal Representative hires the attorney to prosecute the case.

Individuals entitled to compensation under the Florida Wrongful Death Act are referred to as “survivors.” The Act also authorizes the decedent’s Estate to recover damages under certain circumstances.

Who is eligible and what is recoverable for damages under the “Florida Wrongful Death Act” is not a simple formula. Multiple factual variations apply. What follows is an outline of those variations:

Spouse Dies – Surviving Spouse but no Surviving Children
Spouse’s Damages:

  • Loss of Decendent’s Companionship and Protection
  • Mental Pain and Suffering from date of injury
  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Medical and Funeral Expenses due to decedent’s injury/death if paid by survivor

Spouse Dies with Surviving Children and Surviving Spouse
Spouse’s Damages:

  • Loss of Decendent’s Companionship and Protection
  • Mental Pain and Suffering from date of injury
  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Medical and Funeral Expenses due to decedent’s injury/death if paid by survivor

Children’s Damages:

  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Minor children only (under the age of 25 – Section 768.18(2) Florida Statutes), or all children if there is no surviving spouse, may also recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

Parent Dies with Surving Children but no Surviving Spouse
Surviving Children:

  • Loss of Support and Services from date of injury to date of death (w/interest)
  • Future Loss of Support and Services from date of death (at present value)
  • All children may recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

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Florida medical providers must be extremely careful when balance billing patients. The consequences of making a mistake can be costly.

Section 559.72(9) Florida Statutes prohibits attempting to collect a debt that is not due. The punishment can be the assessment of actual damages, a civil fine, and the payment of the Plaintiff’s attorney’s fees and court costs. Section 559.77 Florida Statutes.

Many statutes, most private health insurance policies, and Medicaid and Medicare prescribe how much, if any, a medical provider may balance bill for services provided. For example, authorized medical providers in workers’ compensation cases may not balance bill at all, Section 440.13(14)(a) Florida Statutes, while providers accepting payments through PIP insurance (motor vehicle accident cases) are limited to balance billing 20% of “allowable charges,” which, in most instances, is significantly less than their on-the-books outstanding charges. Section 627.736(5)a.5 Florida Statutes.
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Every first year Florida law student is taught the concept of the Plaintiff with the “Eggshell Skull”.

The proposition is that the Defendant [in an accident case] is responsible for the full extent of the injuries sustained by such Plaintiff even if the degree of damage suffered is more than would be suffered by the average person. In other words, if the Plaintiff was predisposed to suffer an injury or if the injury suffered is worse than it would have been for the average person, the Defendant must compensate the Plaintiff to the full extent of the injuries.

In the example of the Plaintiff with the eggshell, or especially thin/fragile skull, the Defendant, whose negligence caused this Plaintiff to bump his/her head and sustain a fractured skull, is responsible for the fracture even if the worst that would have happened to the average person was a small bump on the head. Put another way, a Defendant “takes the plaintiff as he finds him,” including any pre-existing weaknesses or susceptibility to injury including a weakness caused by a previous injury or pre-existing condition.
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