Litigation

July 21, 2024

Jeffrey P. Gale, P.A. // Comparative Fault Not Part of Manfredo Formula Equation

Not infrequently, both a workers’ compensation case and a personal injury liability case will arise from the same accident. For example, a construction site supervisor involved in a motor vehicle crash while traveling to Home Depot for supplies can pursue workers’ compensation benefits from the employer and civil liability damages from the at-fault party.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

June 12, 2024

Jeffrey P. Gale, P.A. // Sovereign Immunity Strikes Again — Not Good!!!

by Jeffrey P. Gale, P.A.

We just received a telephone call from a heartbroken mother whose 47-year old daughter died a few years ago after falling into a diabetic coma. A well-being, or safety check, call was made to the local police department a day after the young woman phoned to inform her employer that she wasn’t feeling well. A law enforcement officer went to her home that day, but her parents believe that the officer failed to take appropriate actions as her car was in the driveway and the windows of her home were open even though it was raining. The officer did not make contact with the woman or attempt to go into the home. She was found deceased in her home two days later. The mother believes her daughter was incapacitated but alive at the time of the safety call and could have been rescued if she had been discovered then and emergency care rendered.

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.

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 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).

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.

February 1, 2021

Jeffrey P. Gale, P.A. // Dealing With Defendant’s Formal Bankruptcy Proceedings During Pending Personal Injury Case

by Jeffrey P. Gale, P.A.

Every citizen of this state should know that the only thing compelling personal injury liability insurance companies to voluntarily pay claims is the threat of being sued for bad faith.

Liability insurance companies have a legal obligation to act in the best interests of their insureds. Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla. 1980) (An insurer who assumes the defense of the insured also assumes a duty to act in good faith and with due regard to the interests of the insured.) More specifically, in actions by third parties against the insured, the insurer must act in good faith and be diligent in its effort to negotiate a settlement within policy limits. Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). If the carrier fails to do so and a final judgment is entered against its insured for an amount in excess of the policy limit, in a subsequent bad faith action the carrier may be forced to satisfy the excess judgment and pay attorney’s fees and costs. The excess can be many multiples of the policy limit, sometimes in the millions of dollars. The reasoning behind bad faith jurisprudence is that the carrier, by failing to adjust the claim in good faith, has exposed its policyholder to an otherwise avoidable financial burden.

Insurance carriers want to believe that Chapter 7 discharges extinguish their bad faith liability because the insured is not harmed by or liable for the excess verdict. In Camp v. St. Paul Fire & Marine Ins. Co., 616 So.2d 12 (Fla., 1993), the Florida Supreme Court ruled otherwise.

There are three types of bankruptcies, Chapter 7, 11, and 13.

Chapter 7. This chapter of the Bankruptcy Code involves liquidation” – the sale of a debtor’s nonexempt property and the distribution of the proceeds to creditors.
Chapter 11. This chapter of the Bankruptcy Code generally provides for reorganization, usually involving a corporation or partnership. A chapter 11 debtor usually proposes a plan of reorganization to keep its business alive and pay creditors over time. People in business or individuals can also seek relief in chapter 11.
Chapter 13. This chapter of the Bankruptcy Code provides for adjustment of debts of an individual with regular income. Chapter 13 allows a debtor to keep property and pay debts over time, usually three to five years.

Camp involved a medical malpractice case where the injured party obtained a three million dollar verdict after the the carrier failed to settle the case for the defendant doctor’s $250,000 insurance policy limit. Before the verdict was rendered, the defendant doctor filed for Chapter 7 bankruptcy. This put an automatic stay on the malpractice proceedings. While the case was under the stay order, the bankruptcy court granted a discharge that shielded the doctor from personal liability for any claims pending against him as of the date of his bankruptcy filing. Thereafter, the bankruptcy court authorized Camp, the injured party, to proceed with her lawsuit for the purpose of liquidating her claim in the bankruptcy case. (She requested relief from the stay by filing a motion under Bankruptcy Rules 4001 and 9014, showing cause as specified in 11 U.S.C. Sec. 362(d).) At the same time, however, the bankruptcy court specifically ruled that the doctor would be not be personally liable for any judgment Camp obtained against him in her state court lawsuit.

February 12, 2020

Jeffrey P. Gale, P.A. // Benefiting From Vicariously Liable Defendants in Florida Personal Injury Cases

by Jeffrey P. Gale, P.A.

Personal injury cases can have both active and passive tortfeasors, with both being legally responsible for compensating the injured party. The passive tortfeasor’s liability arises from the legal principle known as vicarious liability. Consider these examples:

In Florida

Under the principle of respondeat superior, an employer is responsible for the damages caused by its employee in the course and scope of the employment.
Under the dangerous instrumentality doctrine, with the exception of rental companies vehicle owners are liable for damages caused by permissive users of their vehicles.

In the typical litigated case, both the active and passive tortfeasors are sued. Interestingly, Florida law allows plaintiffs to settle with the active tortfeasor without being precluded from continuing the action against the passive torfeasor. In JFK Medical Center, Inc. v. Price, 647 So. 2d 833 (Fla. 1994), the plaintiff sued a doctor for medical malpractice and wrongful death. The plaintiff’s complaint also included a claim against the passive tortfeasor, the doctor’s employer, for vicarious liability. Id. at 833. Before trial the plaintiff and the active tortfeasor, the doctor, entered into a voluntary settlement agreement which provided that the lawsuit against the active tortfeasor would be dismissed with prejudice. Id. The passive tortfeasor thereafter moved for summary judgment asserting that the active tortfeasor’s dismissal operated as an adjudication on the merits, and thereby precluded continuation of the lawsuit against the passive tortfeasor. Id. at 833-34. The trial court granted the passive tortfeasor’s motion for summary judgment. Id. at 834. On appeal, the Florida Supreme Court held “that a voluntary dismissal of the active tortfeasor, with prejudice … is not the equivalent of an adjudication on the merits that will serve as a bar to continued litigation against the passive tortfeasor.” Id. at 834. The court based its decision on the public policy, as documented in sections 768.041(1) and 768.31(5), Florida Statutes, of encouraging the settlement of civil actions. Id. at 834.

(Caution must be exercised when plaintiff wishes to enter into an agreement to release the active tortfeasor only. The language of the settlement documents must be read carefully to avoid being construed as also releasing the passive tortfeasor. The Price case does not prohibit an agreement which releases both the active and passive tortfeasors.)

Parties to lawsuits, both defendants and plaintiffs, have available to them a powerful tool to encourage settlements. The tool, which goes by a different name for each side but is designed to accomplish the same end, is outlined in section 768.79(1), Florida Statutes. For defendants, the tool is known as an “offer of judgment,” while for plaintiffs it is called a “demand for judgment.” (Florida Rule of Civil Procedure 1.442, which outlines the technical requirements of these pleadings, calls them “Proposals for Settlement,” commonly referred to as “PFS.”) The pertinent language of 768.79(1) is set forth below:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment [a/k/a “OJ”]which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff’s award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand.

(Bold added)

In hard fought cases, reasonable costs and attorney’s fees can be substantial. Each side seeks to present a number that will trigger 768.79(1) without being outside the range of an appropriate settlement if accepted. The higher a defendant’s OJ, the more difficult it is for the plaintiff to beat it. Conversely, the lower the plaintiff’s PFS, the harder it is for defendant to beat it.

December 11, 2019

Jeffrey P. Gale, P.A. // Liability of Bailor for Personal Injury Damages

by Jeffrey P. Gale, P.A.

We are representing a gentleman who was struck by a pickup truck just before sunrise while walking to a bus stop on his way to work. The driver turned quickly without warning from a main road onto a small side street while our client was halfway across after looking both ways before proceeding. Our client spent two weeks in the hospital in intensive care. The driver of the vehicle was charged with failing to yield the right of way.

We learned that the vehicle was purchased by an administratively dissolved corporation and loaned by the sole officer and shareholder of that defunct corporation to the driver for personal use. While the dissolved corporation did not maintain personal injury liability insurance, our investigation determined that the officer/sole shareholder (O/SS) owned unencumbered real estate worth in excess of $1,000,000, almost enough to cover our client’s medical expenses, lost income, and personal injuries. (We made this asset determination by searching the public records and by obtaining an asset affidavit from the O/SS. The driver of the vehicle is uninsured and does not have assets of any meaningful value.)

Through experience and legal research, we have concluded, based on two intertwining legal theories, that the O/SS is likely personally liable for our client’s significant damages.

Section 607.0204, Florida Statutes (2019), part of the Business Corporation Act, provides as follows:

Liability for preincorporation transactions.—All persons purporting to act as or on behalf of a corporation, knowing that there was no incorporation under this chapter, are jointly and severally liable for all liabilities created while so acting.

For us to be able to impose personal liability on the O/SS under this statute, we must show that he knew or should have known that the corporation was dissolved when he acted. Presley v. Ponce Plaza Associates, 723 So. 2d 328 (Fla. 3rd DCA 1998) and Harry Rich Corp. v. Feinberg, 518 So.2d 377 (Fla. 3d DCA 1987). Given that the gentleman was the sole officer and shareholder of the corporation, which had been administratively dissolved years before the vehicle was purchased, we feel confident in being able to make that proof.