Litigation

February 12, 2020

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

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.

April 20, 2019

Jeffrey P. Gale, P.A. // Florida Premises Liability Law and Cell Phone Distraction

by Jeffrey P. Gale, P.A.

Cell phone related distraction accounts for a great number of motor vehicle crashes. Legislation aimed at curbing these preventable events has been enacted in parts of Europe, Canada, and the United States. Florida remains one of just a handful of states without meaningful legislation designed to curb mobile phone abuse while operating a motor vehicle.

With less fanfare, cell phone distraction has become a leading cause of premises liability accidents. The chances of tripping or slipping and falling on a dangerous condition, such as an uneven surface or foreign substance, is increased by inattention.

Florida law apportions damages in most personal injury cases on the basis of each party’s percentage of fault. This includes the injured victim. The concept, contained in section 768.81, Florida Statutes, is known as comparative fault. For example, in most rear-end car crash cases where the lead vehicle is rightfully stopped due to traffic or a road signal, the trailing vehicle is found to be 100% at-fault. However, if it can be established that the lead vehicle stopped suddenly or unexpectedly or that the tail lights of the vehicle did not work, a percentage of fault may be apportioned against the owner or operator of that vehicle. If a jury decides that the owner or operator sustained $100,000 in damages but was 50% at-fault, the judgment in the o/o’s favor would be cut in half to $50,000.

February 3, 2019

Jeffrey P. Gale, P.A. // Obtain Accident Video Before Plaintiff’s Deposition in Florida Premises Liability Cases

by Jeffrey P. Gale, P.A.

In this day and age of surveillance cameras everywhere, it is not uncommon for premises accidents to be captured on video. For various reasons it is critically important for the plaintiff’s attorney to secure a copy of all videos as soon as possible. One of the most important reasons is to enable the victim to recount the accident before giving sworn testimony wholly on memory. Even truthful witnesses can have a shaky grasp of the facts. Time, excitement, injury, uncertainty, nervousness — all can work against an accurate account of a traumatic event.

Once a lawsuit is filed and served, the parties to a premises liability action typically engage in what is known as Discovery. Interrogatories, which are questions answered under oath, and live testimony by deposition are two of the most common discovery vehicles. The mechanism of injury is usually at issue in premises liability cases. How and why did the accident happen?

In Business Telecommunications Services, Inc. v. Elena Madrigal, Case No. 3D18-2106, (Fla. 3rd DCA 2019), the appellant Business Telecommunications Services, Inc. was ordered by the trial court to turn over a surveillance video in advance of the deposition of the plaintiff in a personal injury case. The defendant appealed the court order, relying on cases such as Dodson v. Persell, 390 So. 2d 704 (Fla. 1980). The 3rd DCA decided that such reliance was misplaced, and thus refused to reverse the trial court’s order.

December 24, 2018

Jeffrey P. Gale, P.A. // Florida Property Damage Law — Efficient-Proximate-Cause Theory vs. Concurrent-Causation Theory

by Jeffrey P. Gale, P.A.

In Citizens Property Insurance Corporation v. Salkey (Opinion filed November `6, 2018), property owners insured with Citizens claimed losses alleged to have been caused by sinkhole activity. They had purchased coverage endorsement, which provided coverage for direct physical loss caused by sinkhole activity. An expert hired by Citizens concluded that the property damage was not caused by sinkhole activity but was caused by the ongoing decay of organic soils and phosphatic clay in the reclaimed mine zone over which the insured’s house was built. Because damage caused this way was excluded under the policy, Citizens denied the sinkhole claim, and the homeowners filed a breach of contract claim against Citizens.

Based on evidence presented at trial, the jury concluded that the damage was caused by both factors. Judgment was entered for the property owners. Citizens appealed.

While the judgment was reversed and remanded on other grounds, the Second DCA concluded that Citizens was otherwise liable on the concurrent-cause doctrine, not the efficient-proximate-cause doctrine, which applies when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy. (Citizens argued that policy language effectively eliminated coverage under the concurrent-cause doctrine, but the appeal court disagreed.) The DCA was informed by the Florida Supreme Court’s opinion in Sebo v. American Home Assurance Co. (Sebo II), 208 So. 3d 694 (Fla. 2016).

December 23, 2018

Jeffrey P. Gale, P.A. // Florida Public Health Care Hospital’s Lien Law Declared Unconstitutional

by Jeffrey P. Gale, P.A.

CAVEAT: This blog has been superseded by this blog: Jeffrey P. Gale, P.A. // Constitutionality of Florida Hospital Lien Depends on Mechanism of Creation

Hospital liens have been the bane of every Florida personal injury lawyer’s existence. Perhaps no longer.

An enforceable lien is the right to receive a monetary payment from a person or entity, known as a third party, to satisfy a particular debt. In the matter of personal injury cases, the source is the party responsible for causing the damages, the at-fault party, and in most instances the money comes from that party’s liability insurance policy.

Hospital liens, both for public and private institutions, are created by special laws or ordinances. With rare exception, they provide that the facility gets paid in full before anyone else can make a claim to the money, including the injured party and his/her attorneys.

Hospital bills are typically large, oftentimes resulting in a significant portion of the third party proceeds being siphoned off to satisfy the lien. In some instances, the gap between what is owed and what is available is so wide there is little point in bothering to settle the case. In that situation, the defendant gets away with paying nothing.

July 30, 2018

Jeffrey P. Gale, P.A. // Improper to Use Inference Upon Inference to Show That Alcohol Caused Accident

by Jeffrey P. Gale, P.A.

Our firm is presently involved in a personal injury action on behalf of a truck driver who sustained serious injuries when he was struck by a motor vehicle on the side of the northbound lanes of I-95, in an area of the highway known as a gore, while an employee of a roadside assistance company attempted to replace a blown tire on the chassis our client was hauling with his tractor. We have sued the roadside assistance company for failing to display proper warning lights and for undertaking the assistance in a dangerous location. (This photograph shows the assistance vehicle sent to the scene and its location at the time of the crash.) The Defendant has asserted two affirmative defenses in an effort to apportion fault to a non-party. Our co-counsel, superb trial lawyer Robert Tilghman, has prepared a motion for partial summary judgment on the two affirmative defenses. (Reproduced in this blog are portions of the motion. The names of the parties and the non-party have been removed.)

The non-party was the driver of a northbound vehicle that struck our client after first striking the left rear of the vehicle sent to perform the roadside assistance. The parties will never know what caused his vehicle to enter the gore area as he died after the subject accident before he could give a statement. He told fire rescue that he did not remember what happened and there were no eyewitnesses or physical evidence to explain why, when, or how the vehicle entered the gore or why the driver was unable to avoid striking the repair vehicle. We have been able to formulate upwards of twelve reasonable explanations, some of which would not constitute fault on the non-party driver, for the events leading to the collision.

We anticipate that Defendant intends to argue that the non-party driver consumed alcohol prior to the collision and that it was the effect of alcohol which caused the accident. However, Defendant cannot present admissible evidence of his intoxication or that alcohol was a proximate cause of the collision.

January 29, 2017

Jeffrey P. Gale, P.A. // Overcoming Florida’s Work Product Privilege to Obtain Photographs

by Jeffrey P. Gale, P.A.

With fault being a fundamental element in all but strict liability personal injury cases, it is often critically important for both sides of a dispute to be able to view certain photographs taken after an accident to help piece together the how and why of its occurrence. Common examples include accident-scene images showing the resting place of vehicles involved in a multi-vehicle collision or a condition alleged to have caused a fall.

Very often only one side has the photographs and sometimes the party refuses to share them with the other side, citing work product privilege as the basis.

April 22, 2015

Jeffrey P. Gale, P.A. // Florida Jury Trial Law: Two Grounds for New Trial

by Jeffrey P. Gale, P.A.

While the American jury system is one of the greatest human inventions, it is not infallible. At times our peers are influenced by prejudice, passion, or corruption; they sometimes ignore or misconceive evidence, take improper elements of damages into account by speculation and conjecture.

A verdict based on any of these elements should be rejected by the trial judge and superior appellate courts. There are various procedures for putting the decision before the respective courts. Rather than address those procedures, this blog will focus on the legal standards the courts consider.

There are two standards. The threshold standard is purely objective, the other standard is a hybrid of objective and subjective analysis.
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April 20, 2015

Jeffrey P. Gale, P.A. // Florida Personal Injury Litigation: No Such Thing as a “Facebook Privilege”

by Jeffrey P. Gale, P.A.

Insurance companies and their defense attorneys seek any shred of evidence to discredit plaintiffs. Facebook and other social medial have become a fertile field for this type of evidence.

Personal injury cases include claims for economic and noneconomic damages. Facebook photographs and comments can contradict these claims. Photographs from the Aspen snow trip and comments about dancing the night away on South Beach can be inconsistent with claims of intractable pain and work limitations.
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