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In December, 2008, the Florida Supreme Court, in Kirton v. Fields, 997 So.2d 349 (Fla., 2008), held that a pre-injury release executed by a parent on behalf of a minor child is unenforceable against the minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity.

In Kirton, 14 year old Christopher Jones died in an ATV crash at a motorsports park. Prior to the crash, his father had signed a release and waiver of liability, assumption of risk, and indemnity agreement to allow his son to ride at the park. Subsequently, Fields, as personal representative of the estate of Christopher Jones, filed suit for wrongful death against Spencer Kirton, Scott Corey Kirton, Dudley Kirton, and the Kirton Brother Lawn Service, Inc. (“the Kirtons”) as owners and operators of Thunder Cross Motor Sports. The trial court entered an order granting the Kirtons’ motion for summary judgment on the wrongful death claim, finding that there was no genuine issue of material fact because the release executed by Mr. Jones on behalf of his minor child, Christopher, barred the claim. On appeal, the Fourth District reversed the trial court’s order granting the motion for summary judgment. The Florida Supreme Court’s majority opinon – one dissent (Wells, J) and two non-participants (Canady and Polston, JJ) – resulted from an appeal of the 4th DCA’s decision.
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law books.jpgFlorida Statues may allow PIP carriers to conduct medical examinations and perform paper reviews, but no authority, including the statute itself, grants PIP carriers license to reference those procedures as an “IME,” “Independent Medical Examination,” or a “Peer Review.” In short, PIP carriers have created the terms out of whole cloth to mislead juries.

The doctors are not independent or conducting peer reviews. (Merriam-Webster Dictionary’s only definition of “peer review” is: a process by which something proposed (as for research or publication) is evaluated by a group of experts in the appropriate field.) They are hired by the defense and paid by the defense. If the jury hears that doctors are “independent” or a “Peer Review,” the jury may be confused into believing or thinking the doctors were appointed by the court, a governing body, or with the approval of the Plaintiff or the Plaintiff’s attorney.

When preparing for trial, the Plaintiff’s attorney should consider moving the court for an In Limine order preventing the insurance company from perpetuating the falsehood.
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A well-established common law principle in Florida is that motor vehicles are “dangerous instrumentalities.” Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1920). In 1941, the Florida Supreme Court held that because the use of a dangerous instrumentality involves such a high degree of risk of serious injury or death, whoever deals in such instrumentalities must exercise the “highest degree of care.” Skinner v. Ochiltree, 5 So.2d 605 (1941). This decree is consistent with the court’s opinion that “as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.” McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992).

Until 2005, this longstanding and reasonable principle of law applied to both individual private vehicle owners and billion dollar rental car agencies alike. However, with the passage into law of the Graves Amendment, the U.S. Congress and the Bush Administration (George W. Bush), allowed rental car agencies across the country to escape liability for serious personal injuries caused by their rental vehicles.

The constitutionality of the law is being challenged in courts across the nation. One of the main arguments in opposition to the federal law is that the individual states should be allowed to create laws that effect its own residents. The constitutionality issue will ultimately be decided by the U.S. Supreme Court.

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FRCP 1.720 and most court orders require parties to appear at mediation with “full authority” to settle without further consultation. See also Carbino v. Ward, 801 So.2d 1028 (Fla. 5th DCA 2001) and Physicians Protective Trust Fund v. Overman, 636 So.2d 827 (Fla. 5th DCA 1994).

A hypothetical personal injury case will be used here to illustrate the importance and meaning of the law:
The plaintiff’s last demand before mediation was $500,000, while the defendant has valued the case at $75,000. For the defendant to be in compliance with Rule 1.720, its representative must attend mediation with the authority to settle for $500,000 (or policy limits, whichever is less). This does not mean that the defendant must accept plaintiff’s demand. All it means is that the representative must have the authority to pay $500,000 without further consultation. (The rule is less clear as it relates to plaintiffs, especially when the defendant has not made a pre-mediation offer, but it is arguable that the plaintiff or its representative must be able to accept any proposal made by the defendant without further consultation.)

On its face, the rule may seem silly. However, it makes sense. The purpose of the rule is to encourage and promote the settlement of cases. The rule requires representatives to have flexibility to adjust to circumstances as they arise during mediation, even if it does not require the actual exercise of that flexibility. Without having the requisite “full authority”, a representative is unable to adjust his/her position during mediation. (Examples of circumstances that sometimes motivate parties to alter their views during mediation are endless. Some of the more common examples include: the presentation of explosive eyewitness affidavits; the surprise appearance of a newly-hired heavy-hitting top-gun trial lawyer in place of an inexperienced attorney; the surfacing of key missing documents; new test results; et cetera.)
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slip-and-fall.jpgCurrent Florida law allows individuals injured in slip & fall accidents to prove fault against business establishments through evidence of inadequate maintenance policies and procedures. Owens v. Publix Supermarkets, Inc., 802 So. 2d 315 (Fla. 2001) and Section 768.0710 Florida Statutes. If the 2010 Republican-dominated Florida Legislature has its way, this consumer-friendly law will be eliminated. (See Senate Bill 1224 and House Bill 689.) If so, businesses establishments will have one less reason to perform routine inspections and maintenance to keep their premises safe.

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In the Gettysburg Address, Abraham Lincoln declared that we are a “government of the people, by the people, for the people.” Sadly, this message has not registered with Florida lawmakers. (Please see this blog for a significant modification of this statement.)

As should be the case, individuals and corporations whose negligence causes harm in Florida must pay full compensation for the damage caused by those acts. (Major exception: doctors and medical facilities.) For example, if a civil jury renders a verdict against driver A in the amount of $1,000,000 for crashing into the rear of driver B at 60 mph while operating a company vehicle, a judgment in that amount will be entered by the court against driver A and the company. (Whether or not driver A and the company have the capacity to pay, through insurance or otherwise, is another issue.)

Unfortunately, this would not be the outcome if the at-fault vehicle were owned by the government. In that situation, Florida law (768.28(5)) nullifies the voice of the jury, only allowing the judge to enter a judgment against the government (e.g., city, state, governmental agency, village, etc.) in the amount of $100,000. That’s right. The government is not subject to the considered decision of the jury. If that isn’t bad enough, when the negligence occurs at the planning level stage, instead of at the operational stage, the government has absolute immunity from being sued. This means that a lawsuit will not be allowed to proceed against the government when the negligence occurs at the planning stage.

Parties held fully accountable for the consequences of their actions learn to modify their behavior for the better. Those not held accountable, do not learn or modify. This is the problem with Florida’s sovereign (i.e., government) immunity law. The sovereign acts with impunity because the consequences of its bad acts are de minimus. I say take away the government’s sovereign immunity. Make it equally accountable as private individuals and corporations. Maybe then the sovereign will act as it should, with due regard for the health, safety, and welfare of the people, instead of the other way around. As Abraham Lincoln famously said, we are a “government of the people, by the people, for the people.”
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law books.jpgPersonal Injury Protection (PIP) insurance is mandatory in Florida for owners of operational motor vehicles and usually provides coverage up to $10,000 for medical benefits and lost wages. In many instances, the coverage will extend to other individuals besides just the owner of the vehicle.

After choosing a carrier, the vehicle owner must complete an insurance application to obtain the coverage. Most applications require that all drivers residing in a household be listed. The purpose of this requirement is for the insurance company to be able to properly assess its risk to determine the appropriate premium (i.e., cost of the policy).

Section 627.409 Florida Statutes gives the insurer the right to deny coverage if a misrepresentation in the insurance application is: (1) fraudulent; (2) material to the risk being assumed; or (3) the insurer in good faith either would not have issued the policy or would have done so only on different terms had the insurer known the facts.

Most people would agree that an insurance company should be allowed to deny coverage to an undisclosed driver injured in an accident while driving the covered vehicle. Quite simply, the carrier should not be required to provide coverage to someone on whose behalf an insurance premium was not paid. A more problematic scenario involves the question of coverage for a listed driver injured in an accident while driving the covered vehicle, where the carrier learns that an unlisted listed driver also resides in the household. Regretably, the trend in Florida seems to be towards allowing carriers to deny coverage to the disclosed driver. See United Auto. Ins. v. Salgado , No. 3D07-461 (Fla. App. 8/5/2009) (Fla. App., 2009).
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Injured workers in Florida suffered a major setback in May 2009, when the Florida Legislature adopted a workers’ compensation bill which significantly limits the amount of fees their attorneys may recover from workers’ compensation insurance companies for forcing them to pay benefits through litigation. Not surprisingly, the Republican-controlled legislature failed to pass a similar measure limiting the amount of fees insurance companies may pay their own lawyers to defend against paying benefits to injured workers.

In a last minute about-face, the Florida Senate, led by Jeff Atwater (R), abandoned its own fair bill in favor of the House version sponsored by South Florida Representative, Anitere Flores (R). The surprise move came just one day after Senate President Atwater announced from the Senate podium that the Senate preferred its version of the workers’ compensation bill over the House’s version.

The legislature’s action was in response to a Florida Supreme Court decision handed down in October, 2008, in Emma Murray vs. Mariner Health and ACE USA, 994 So. 2d 1051 (Fla. 2008), a case which held, in essence, that fees paid to claimants’ attorneys must be reasonable. The 2009 Florida Legislature felt otherwise, choosing instead to craft legislation which removed the word “reasonable” from 440.34, the section of the Florida statute dealing with claimant’s attorney’s fees. As a result, employers and carriers ordered by workers’ compensation judges to furnish wrongly denied benefits no longer have to pay the claimant’s attorney reasonable fees for successfully securing the benefits.
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Tort “deformers” purposely fail to make full disclosure in their holy war against the civil law justice system. A prominent example of something not being divulged is the well-established principle of law commonly known in Florida as Comparative Fault or Contributory Fault/Negligence. Quite simply, this concept provides that the Plaintiff’s degree of fault, if any, will be held against him or her in a claim against others arising out of an accident resulting in injury or death.

In every personal injury case, the degree of damage (injury or death; economic losses) sustained by the Plaintiff equals 100%. If the defendant or defendants – the parties being blamed [by the Plaintiff] for causing the accident – are found by a jury to be 100% at fault, they will be responsible for paying 100% of the Plaintiff’s damages. If, however, the Plaintiff is found to be at-fault in any degree for causing the accident, his or her recovery will be reduced accordingly. For example, if a jury determines that the Plaintiff has sustained damages totaling $200,000, but also finds that the Plaintiff is 25% at-fault, the Plaintiff’s net recovery will be $150,000.

This principle of Comparative Fault is just one of many legal concepts never mentioned by those forces bound and determined to bar the courthouse doors from the men, women, and children of this state in need of legal redress.

Stay tuned for further examples.
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February 27, 2011 blog on the issue: Survey of Florida’s Wrongful Termination Workers’ Compensation Law

Although the rights of injured workers under Florida’s Workers’ Compensation statutes have consistently been eroded away under Republican rule, one protection has remained constant over the years. Per Section 440.205 Florida Statutes (2009):

Coercion of employees.–No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

The protection afforded injured workers under Section 440.205 is broad, prohibiting not only the firing of an employee, but also threats, coercion, and intimidation. Chase v. Walgreen Co., 750 So.2d 93 (Fla. 5th DCA 1999). Moreover, a “valid claim” means one that is meritorious, not just compensable. Smailbein v. Volusia County Sch. Bd., 801 So.2d (Fla. 5th DCA 2001).
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