Articles Posted in Litigation

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On July 7, 2010, I blogged that the initial tortfeasor (a wrong-doer, one who does wrong) in a negligence case is liable under Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977), for all foreseeable damages arising from an accident, including enhanced injuries caused by medical malpractice suffered during treatment for the initial injuries. (Blog.) Today’s blog addresses the responsibility of those whose negligence has caused injuries apart from those resulting from the initial negligence.

The seminal case in Florida on this issue is the Florida Supreme Court case D’Amario v. Ford Motor Company, 806 So.2d 424 (Fla. 2001). In D’Amario a minor was the passenger in a vehicle that struck a tree. A fire began that ended in an explosion, causing the minor to lose three limbs and suffering burns to much of his body.

The minor and his mother sued Ford alleging that a defective relay switch in the automobile caused the fire. It was their theory that but for the defect, the fire would not have started and the minor’s injuries would have been much less serious. In line with this theory, they only sought damages for the injuries caused by the defective switch rather than for the injuries caused by the initial impact with the tree.

At trial, Ford sought to introduce evidence as to the cause of the initial accident, which was that another minor was intoxicated and negligently drove the vehicle into the tree. The plaintiffs (mother and son) sought to keep this evidence out by arguing that it was irrelevant. In their view, since they were not seeking compensation from Ford for the injuries sustained from the initial impact, how and why it happened was irrelevant. The trial court disagreed, allowing the evidence to be presented to the jury. The jury returned a verdict for Ford.
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In Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977), Hertz Corporation, vicariously liable for the negligence of the driver of its vehicle, sought to limit its financial burden by bringing a treating doctor into the case who, it claimed, made the crash victim’s injuries worse through medical malpractice. The Florida Supreme Court said No.

The significance of the case is that initial tortfeasors are fully responsible for all reasonably foreseeable damages resulting from the original accident. Medical malpractice is considered a foreseeable outcome of receiving medical treatment for injuries suffered in the original accident.

Even with Florida’s adoption of comparative fault law (Section 769.81 Florida Statutes), Stuart v. Hertz remains good law. See Association for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520 (Fla. 5th DCA 1999).
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Most Florida motor vehicle insurance policies extend coverage to its insureds for accidents involving temporary substitute automobiles. The typical requirements of the insurance policy provision are that the vehicle is used as a substitute for the owned auto when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction AND with the permission of the owner. A substitute vehicle can include a rental car.

In Geico Insurance Company v. Shazier, So.3d , 35 FLW D539 (Fla. 1st DCA 3-10-2010), the permission element of the insurance provision was put to the test. The insured lost.

Kutusha Shazier and her husband were insureds under a motor vehicle policy with GEICO. Due to mechanical problems with her Ford Expedition, Kutasha rented a vehicle from Avis Rent-A-Car System. The rental agreement provided that only Kutasha Shazier was allowed to operate the vehicle and if the provision was violated, the rental agreement was automatically terminated.

Without permission from Avis, Shazier allowed another person to operate the vehicle. That person caused a serious accident resulting in injuries to numerous passengers and one fatality.
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Florida’s Wrongful Death Act, located at Sections 768.16-768.26 of the Florida Statutes, concentrates on loss suffered by survivors and creates a separate entitlement to damages for each survivor. However, the survivors cannot bring separate legal actions. Rather, the personal representative is the only party with standing to bring a wrongful death suit on behalf of the estate and the survivors. See § 768.20, Fla. Stat. Under the legal procedure set out in the wrongful death statute, all survivors and claimants are required to participate in a single legal action to be filed by the estate on behalf of all the survivors. Upon trial, damages are to be apportioned to each survivor in the verdict form.” Wiggins v. Estate of April Brown Wright, 850 So.2d 444 (Fla., 2003).

The personal representative selects the attorney who will pursue the recovery on behalf of the estate and the survivors. The typical contingent fee retainer agreement in these cases provides for attorneys’ fees from 33-1/3% (case settled pre-suit) to 40% (post-suit, post-Answer [to lawsuit]) of the combined amount recoved by the estate and the survivors.

In many instances the survivors entitled to compensation in a wrongful death action may be in agreement both as to prosecuting a wrongful death claim, and in the distribution of any recovery. When this is the case, this procedure will work well, especially when all of the survivors have a commonality of interest and a single attorney can represent those interests. This may often be the case, for example, when a parent-spouse is killed and the surviving spouse and children are represented by the same attorney.
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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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Whether or not a Florida landowner is liable to a member of the public for injuries resulting from an accident on his or her property depends in large part on the status of the visitor at the time of the accident. The status will determine the landowner’s duty of care to the visitor.

The following outline lists the status categories recognized under Florida law and the duty owed to visitors under each category:

  • Public Invitee. A person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (Example: Child in a public park.) This landowner has the following duties: (1) to correct or warn of dangers that the owner knows or should know of by the use of reasonable care, and which the visitor cannot or should not know of by the use of reasonable care; and (2) to maintain the premises in a reasonably safe condition. (See my previous blog on this subject.)
  • Business Invitee. A person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. (Examples: A grocery story patron; a paying fan at a Miami Dolphins football game.) Duty: same as for Public Invitee.
  • Licensee By Invitation. A social guest. Duty: same as for Public Invitee.
  • Uninvited Licensee. A person who chooses to come upon the premises solely for his or her own convenience without invitation either expressed or reasonably implied under the circumstances. (Example: teenagers partying in a parking lot owned by a business establishment.) Duty: To refrain from willful or wanton injury (e.g., to remove any concealed “traps” of which the owner has actual knowledge).
  • Trespasser. A person who enters the premises without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his own convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity. Duty: same as for Uninvited Licensee.

(Much of the information contained in this outline was gathered from a table created by Attorney Wilton H. Strickland.)
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In a previous blog, I wrote that Republicans in the 2010 Florida Legislature had designs on shifting the standard of proof in slip & fall cases to favor business establishments. Despite strong opposition from Democrats and the Florida Justice Association, the Republicans have accomplished their goal.

On Apri 14, 2010, Florida Governor Charlie Crist approved House Bill No. 689, effective July 1, 2010. The bill nullifies the holding in Owens v. Publix Supermarkets, Inc, 802 So. 2d 315 (Fla. 2001) and repeals 768.0710 F.S. The new law, which will be 768.0755, eliminates the burden on the defendant, after the plaintiff has established that his or her fall was caused by a transitory substance, to produce evidence that it exercised reasonable care under the circumstances. This is a major shift and one that will prove decisive in many slip & fall cases.
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