Civil Litigation

September 8, 2023

Jeffrey P. Gale, P.A. // Workers’ Compensation Immunity for Florida Contractors and Subcontractors

It is sometimes possible for employees injured on the job in Florida to be compensated through both the state’s workers’ compensation system and its civil justice system. As to the compensation available and the manner in which the compensation is sought and received, the systems are more different than they are alike. One of the primary differences is that compensation for human damages such as bodily injury, pain and suffering, disfigurement, mental anguish, and the loss of capacity for the enjoyment of life, are elements of a civil remedy but not workers’ compensation. In a nutshell, workers’ compensation benefits are limited to medical and indemnity benefits. Non-economic damages, which can amount to millions of dollars, are not recoverable.

What limits most employees from being able to receive the civil remedy is the legal concept known as workers’ compensation immunity. The basic concept is set forth in Fla. Stat. Sec. 440.11(1):

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death….

Special laws have been devised to deal with workers’ compensation immunity in the context of contractor-subcontractor relationships. See Fla. Stat. Sec. 440.10(b)-(f). For the employees of contractors and subcontractors, the general law is set forth in s. 440.10(b):

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

“[T]he purpose of section 440.10 . . . [is] ‘to insure [sic] that a particular industry will be financially responsible for injuries to those employees working in it, even though the prime contractor employs an independent contractor to perform part or all of its contractual undertaking.’” Gator Freightways, Inc. v. Roberts, 550 So. 2d 1117, 1119 (Fla. 1989) (quoting Roberts v. Gator Freightways, Inc., 538 So. 2d 55, 60 (Fla. 1st DCA 1989)); see also Crum Servs. v. Lopez, 975 So. 2d 1184, 1186 (Fla. 1st DCA 2008) (explaining that section 440.10(1)(b) “is designed to ensure that employees engaged in the same contract work are covered by workers’ compensation, regardless of whether they are employees of the general contractor or its subcontractor”).

August 1, 2023

Jeffrey P. Gale, P.A. // Interplay Between Vicarious Liability and Negligent Hiring, Employment, and Entrustment Cases

by Jeffrey P. Gale, P.A.

Under the legal doctrine of respondeat superior, employers can be held liable for the negligent or purposeful acts of their employees. See Valeo v. East Coast Furniture Co., 95 So. 3d 921, 925 (Fla. 4th DCA 2012) (holding negligence of employee imputed to employer when employee “committed the negligent act: (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer.”). This liability, known as vicarious liability, applies even if the employer has done nothing wrong.

In some instances, the employer’s own negligence is part of the causal chain resulting in the harm. For example, a few years ago our client was severely beaten in his home by a furniture deliveryman who became annoyed by the strong smell of fish being cooked in the home. We learned that the deliveryman had a criminal record of violent activity before he was hired and a history of physical misconduct while employed. He should not have been hired or retained for a job putting him in one-on-one unsupervised contact with customers.

Negligent hiring and employment have long been found to be legitimate bases of recovery in Florida. See, e.g., Mallory v. O’Neil, 69 So.2d 313 (Fla. 1954); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970).

Similarly, certain employees should not be entrusted with operating motor vehicles. The reasons range from being a known reckless driver to mental impairment from a medical condition or alcohol or drug use. The theory of negligent entrustment has long been utilized in an automobile situation as the basis of recovery. See, e.g., Bould v. Touchette, 349 So.2d 1181 (Fla. 1977); Wright Fruit Co. v. Morrison, 309 So.2d 54 (Fla.2d DCA 1975).

June 15, 2023

Jeffrey P. Gale, P.A. // Protecting Privacy and Privilege Rights in Non-Party Requests for Documents

by Jeffrey P. Gale, P.A.

In just about every personal injury and workers’ compensation case, the defense will seek the production of records from non-parties to the suit. The typical non-party targets are medical providers and insurance companies. In most instances, the records sought were not generated in connection with the subject case. The defense is looking for records of preexisting medical conditions and prior legal claims.

Florida’s discovery rules are liberal. FRCP 1.280(b) provides as follows:

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery isas follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Albeit broad, the rules are not boundless. In Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5^th DCA 1997), a wrongful death case, petitioner objected to defendant’s request for decedent’s psychiatric and psychological records, stating that the medical records were confidential and that the request was overbroad. The DCA decided that the records might be relevant to the issue of damages but disagreed with the court’s order allowing “carte blanche investigation of decedent’s entire mental health history.” Russell at 745. The court explained that “Even though the rules of civil procedure allow for broad discovery, the discovery must be confined to matters admissible or reasonably calculated to lead to admissible evidence in the case.” Russell at 745, citing East Colonial Refuse Service, Inc. v. Velocci, 416 So.2d 1276, 1277 (Fla. 5th DCA 1982). The trial court order allowing carte blanche discovery was quashed and the matter was remanded for an in camera review of the records.

June 1, 2023

Jeffrey P. Gale, P.A. // Fundamentals Always Matter — Proximate Cause

by Jeffrey P. Gale, P.A.

In every negligence action for injuries or wrongful death the plaintiff must establish (1) a duty owed by the defendant; (2) the defendant’s breach of the duty; and (3) and that said breach proximately caused the damages claimed.

In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla. 1979); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla. 1978). Prosser explored this standard of proof as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

The north star of the law of causation is the landmark supreme court decision in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984). The Florida Supreme Court described the case as follows:

Emily Gooding, personal representative of Mr. Gooding’s estate, brought a wrongful death action against the hospital alleging negligence by the emergency room staff in not taking an adequate history, in failing to physically examine Mr. Gooding, and in not ordering the laboratory tests necessary to diagnose and treat Mr. Gooding’s abdominal aneurysm before he bled out and went into cardiac arrest. Mrs. Gooding’s expert witness, Dr. Charles Bailey, a cardiologist, testified that the inaction of the emergency room staff violated accepted medical standards [i.e., there was a breach]. Dr. Bailey, however, failed to testify that immediate diagnosis and surgery more likely than not would have enabled Mr. Gooding to survive.

The trial court denied the hospital’s motion for directed verdict on causation. The jury found the hospital liable and awarded damages. The hospital appealed. The First District Court of Appeal reversed on the grounds that the trial court should have directed a verdict in favor of the hospital because Mr. Gooding’s chances of survival under the best of conditions were no more than even. The plaintiff, therefore, could not meet the more likely than not test for causation. The Supreme Court affirmed the DCA on this holding.

April 17, 2023

Jeffrey P. Gale, P.A. // Florida Republican Gov. Ron DeSantis Signs Legislation Limiting Access to Courts in Personal Injury Cases

by Jeffrey P. Gale, P.A.

On March 24, 2023, Florida Governor Ron DeSantis signed into law a bill passed by the Florida Legislature aimed at limiting the rights of individuals from seeking and obtaining civil redress in the courts for personal injuries. The bill is House Bill 837. Parts of the bill became effective when it was signed by DeSantis. It will change many existing laws in dramatic ways.

Statute of Limitations. The most obvious change is to limit the time period during which a personal injury case can be filed from four years to two years. This time limitation is known as the statute of limitations. Claims filed after the SOL period will be time-barred.

It is not unusual for individuals involved in accidents to wait years before deciding to pursue a claim. The reasons for delaying are varied but include not knowing a claim can be brought, personal disruption caused by the incident, injury recovery time, an ideological opposition to involving the civil justice system, and bad legal advice.

Proponents of the reduced statute of limitations period are seeking to limit the number of lawsuits that are filed. The opposite may happen. Most personal injury cases are resolved without a lawsuit being filed. Even in cases where a remedy is sought within two years of the incident, it is not unusual for those cases to be resolved without a lawsuit well after two years from the incident date. Reasons for this include injury healing time and ongoing negotiations.

Because of the shortened time period, lawsuits will have to be filed in many cases simply to preserve the right to a remedy even if the case would otherwise resolve amicably without filing. Once a lawsuit is filed, the contingency fee payable by the plaintiff upon recovery rises and the cost of handling the case increases. These factors make it more difficult to settle out of court.

Bottom line: the goal of limiting lawsuits by shortening the SOL will be offset by lawsuits having to be filed to keep from being time-barred. While some people will lose out on a remedy by going over the SOL, the legal system will not see a reduced burden. Hence, the measure is a net negative.

April 2, 2023

Jeffrey P. Gale, P.A. // Response to Defendant’s Motion to Exclude Evidence

by Jeffrey P. Gale, P.A.

We have a case in which the defendant knowingly did the same thing after we sued him that he denied doing knowingly in our case. The thing he has denied doing forms the crux of our case.

The case is on the trial docket. In the lead-up to calendar call, defendant filed a Motion in Limine seeking to prevent us from using the subsequent activity as evidence to overcome his denial. The motion has not yet been ruled upon by the trial judge.

Our client sustained catastrophic injuries while working on a construction project, an addition to the defendant’s personal residence. The defendant homeowner hired an unlicensed contractor to manage the project. Typically, Florida law prohibits property owners from using unlicensed contractors to run projects. However, the law provides an exception to the rule for work done on a residence where the homeowner undertakes the project as the owner-builder. See Florida Statute 489.103(7). Under the exception, the homeowner assumes the legal duties and liabilities that would otherwise belong to a licensed contractor, foremost among them protecting the safety of workers and being liable for injuries caused by a breach of the duty. It is our position that the unlicensed contractor was negligent, that this negligence caused our client’s accident, and since this was an owner-builder project, the defendant owner-builder is vicariously liable for the unlicensed contractor’s negligence.

Defendant executed paperwork to obtain the building permit. He is listed in the paperwork as the owner-builder. Defendant claims he did not know until after being sued that he undertook the project as the owner-builder and that the person he hired to manage the project was unlicensed. While these claims should not be enough to overcome the defendant’s liability, we want to stop them in their tracks to limit any chance of them gaining traction with an uncertain jury.

December 29, 2022

Jeffrey P. Gale, P.A. // Loss of Co-Worker WC Immunity Not Imputed to Employer

by Jeffrey P. Gale, P.A.

Florida employees hurt at work have the potential of being compensated under the State’s workers’ compensation and civil laws. To recover under civil law against employers and fellow employees (including corporate officers or directors, supervisors, and managers), employees must overcome workers’ compensation immunity. Section 440.11(1)(b), Florida Statutes sets out what employees must prove to overcome the immunity*:

Against Employers:

The employer deliberately intended to injure the employee; or

The employer engaged in conduct that was virtually certain to result in injury or death, and the employee was not aware of the risk.

Against Fellow Employees:

The employee acted with willful and wanton disregard or unprovoked physical aggression or with gross negligence; or

The injured employee and the at-fault employee were assigned primarily to unrelated works.

*These are the standards when the employer has secured workers’ compensation coverage as required by Chapter 440. If the employer fails to secure the compensation required by the chapter, the employee may elect to claim compensation under the workers’ compensation laws or maintain an action at law (a/k/a civil law) or admiralty without having to meet the heightened standards outlined above. See Section 440.11(1)(a), Florida Statutes.

An important consideration in every injury case is whether the target defendant has the financial resources to pay for the losses. Workers’ compensation insurance policies will pay for all workers’ compensation benefits. However, because of exclusions, these policies are unlikely to cover the damages associated with an action at law. Most companies also maintain liability insurance policies. However, these policies also often contain exclusions for injuries to employees even when the harm was caused by the employer or a fellow employee.

December 23, 2022

Jeffrey P. Gale, P.A. // Don’t Stand for Discovery Abuse in Civil Cases

by Jeffrey P. Gale, P.A.

Parties to civil lawsuits in Florida have the right to learn things about an opponent’s case through a process called discovery. The discovery procedures are set forth in the Florida Rules of Civil Procedure.

Rule 1.280 sets forth the general methods and scope of discovery. Concerning scope, subsection (b)(1) provides as follows:

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Multiple vehicles are available for obtaining discovery. Depositions, interrogatories, which are written questions, and requests for the production of documents, are the most common methods. Rule 1.350 addresses the request for documents. Depending on the stage of the proceeding, a response is due within 30 or 45 days of when the discovery is propounded.

The party must either produce the documents or voice an objection within the prescribed time period. Importantly, a party’s failure to respond or object to discovery within the time deadline results in a waiver of any objections that party may have to the discovery sought. Am. Funding, Ltd. v. Hill, 402 So. 2d 1369 (Fla. 1st DCA 1981).

December 7, 2022

Jeffrey P. Gale, P.A. // Ignorance of a Document’s Content is no Defense

by Jeffrey P. Gale, P.A.

“Ignorance of the law is no defense” is a popular expression. It means that a person will not be excused from punishment for not knowing that particular conduct was against the law.

A similar rule holds true when it comes to written documents: Ignorance of a document’s content does not discharge the responsibility of a party to the document.

We are in suit against a homeowner for serious personal injuries sustained by our client from an accident that occurred on the homeowner’s property during a construction project. Among the legal theories claimed for holding the homeowner responsible is the breach of his duty created by undertaking the project as the owner-builder.

September 1, 2022

Jeffrey P. Gale, P.A. // Considerations Concerning Cash Advance Funding of Florida Personal Injury and Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

The competition to advance money to those injured in accidents is fierce. The reason for the fierce competition is the potentially high rate of return on the investment.

Numerous companies, some large with a national presence, engage in the competition. Because their only security is the injury case itself (workers’ compensation and personal injury), which gives rise to the term “non-recourse funding advance“, the companies are not bound by Florida’s usury laws limiting interest rate charges. The rate can be multiple times over the 18% limit allowed in Florida. In fact, the interest rates are so high that the repayment amount can quickly double and triple the principal.

Advance companies are barred from foreclosing on real property or seeking repayment through wage garnishment. Their sole recourse for repayment is the case itself. If the case fails altogether or the recovery is not enough to repay the advance in full, it’s tough luck for the company. Given the precarious nature of accident cases, this is a real risk. Cases can “Go South,” so to speak, for a variety of reasons.