Articles Posted in Personal Injury

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dollars.jpgPayments made by health insurance and Medicare must be repaid by the beneficiary of the payments from money recovered in the personal injury case for which the medical care was furnished. (Note: PIP, which is no-fault insurance for medical bills in car accidents, does not have to be reimbursed.) In determing how much is owed, an end date beyond which further payments are not reimbursable must be established.

The cutoff date varies depending on the entity involved.

HEALTH INSURANCE: The cutoff date depends on whether the policy is subject to ERISA. If it is not, the lien ends at the date of settlement. See Florida’s collateral statute — 768.76. It is fairly well established (although not conclusively — see Coleman v. Blue Cross and Blue Shield of Alabama, Inc. So.3d , 35 FLW D2718 (Fla. 1st. DCA 12-8-2010) for a contrary view) that the collateral source statute does not apply to ERISA plans. Rather, those lien rights are controlled by the subrogation/reimbursement language in the Summary Plan Description (SPD). The SPD should be requested, but in all likelihood its provisions are expansive, allowing for recovery of all charges related to the accident. The plan may even provide that it is not responsible for covering post-settlement accident related care.
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greed.jpgFor Florida accident victims and those who care for and about them, the tyrannical reign of Jeb [Bush] the Horrible (Governor of Florida from 1999 to 2007) continues to haunt.

Once upon a time in Florida, employees hurt at work could sue their employers in tort by proving that an employer’s conduct created a “substantial certainty” the harmful accident would occur. Although the standard was tough, it still gave employees harmed through conduct exceeding mere negligence a fighting chance of being fairly and fully compensated, rather than being limited to the oftentimes inadequate benefits available under Florida’s workers’ compensation system. A victim making the requisite showing was able to overcome an employer’s workers’ compensation immunity.

Dear Jeb and his uncaring Republican lackeys in the Florida Legislature were dismayed that working men (and women) had a fighting chance against the beloved “Job Creators,” so they eliminated the right. In 2003, the Florida Legislature effectively overruled the Florida Supreme Court case of Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), the case which gave a decent interpretation to the “substantial certainty” standard, by amending Florida Statute 440.11 with the “virtually certain” standard. The pertinent language reads as follows:

The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

See F.S. 440.11(1)(b)2.

As fairly stated by the 4th DCA in List Industries v. Dalien (opinion issued on January 23, 2013), “The change from ‘”substantial certainty”‘ to ‘”virtually certain”‘ is an extremely different and a manifestly more difficult standard to meet. It would mean that a plaintiff must show that a given danger will result in an accident every — or almost every — time.”
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people.jpgWinning may not be a victim’s only concern in a personal injury case. Collecting on damages awarded post-victory can be of equal or greater importance.

Not every tortfeasor (at-fault party) is adequately insured or has the independent financial means to satisfy a court judgment. In some instances a non-negligent party, one, perhaps, with the resources to satisfy a judgment, is held legally accountable for the damages caused by another party. This is called vicarious liability. The most common example of vicarious liability involves the owner of a motor vehicle being responsible for the negligence of a permissive user of the vehicle. It is worth repeating that a vicariously liable party need not be negligent.

Florida employers can be liable for the conduct of their employees in two different ways. One is vicarious liability. The other requires active negligence on the part of the employer.

An employer can be vicariously liable for the act of an employee committed (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer. Valeo v. East Coast Furniture Co., So.3d , 37 FLW D1820 (Fla. 4th DCA 8-1-2012). In Valeo, following a motor vehicle accident the plaintiff exited his truck and approached the driver’s side window of the defendant’s truck, whereupon the defendant’s employee hit him in the eye with a padlock. The defendant’s driver testified that he hit the plaintiff with a padlock because he thought the plaintiff was trying to rob him of cash he was carrying for the employer. The plaintiff denied being the aggressor. The trial court decided that the employer could not be vicariously liable under these circumstances. The appellate court disagreed, holding that the question was one to be decided by a jury.
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calculator.jpgPeople hurt on the job can often bring damage claims against their employer under workers’ compensation and third parties responsible for causing the accident. Normally, workers’ compensation medical and lost wage benefits are provided to the injured worker before the third party case is resolved.

Florida Statute 768.76 provides that amounts owed by negligent third parties are offset by benefits injured persons receive from collateral sources. However, the offset does not apply to benefits that must be repaid. The right a source has to be repaid is known as subrogation.

Workers compensation insurance carriers have subrogation rights pursuant to Florida Statute 440.39.
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alcohol.jpgAdults hosting house parties are well advised to be hyper vigilant in preventing alcohol or drugs from falling into the hands of minors. The negative consequences of failure, outlined in Florida Statute §856.015, can be substantial.

An adult who fails to keep a minor from possessing or consuming alcohol or drugs commits a second degree misdemeanor, punishable by a fine up to $500 and 60 days in prison. Where harm comes to a minor or others due to a violation of 856.015, the offense is a first degree misdemeanor, punishable by a fine up to $1000 and one year in jail.
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law books.jpgSecuring the payment of medical expenses is one of the main responsibilities of Personal Injury attorneys. At trial, Plaintiffs must prove (1) that charges are for treatment for injuries at issue in a lawsuit, as opposed to treatment for some other condition, and (2) the charges are reasonable and necessary. See Garrett v. Morris Kirschman & Co., Inc., 336 So.2d 566 (Fla. 1976).

Interestingly, while part (1) requires expert medical testimony, part (2) is established from the Plaintiff’s perspective, rather than from the perspective of a medical expert. See, Id., and Albertson’s, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986).
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crushed vehicle.jpgRear-end crashes represent nearly 25% of all roadway motor vehicle accidents. The natural inclination is to blame the driver of the approaching vehicle, the one that slammed into the rear of the other vehicle. Florida law supports this notion by creating a presumption of fault against the approaching driver.

Law enforcement, the courts, and personal injury lawyers are well-advised to think twice before jumping to this conclusion. They must understand that attentive drivers sometimes crash their vehicles into the rear-end of leading or stationary vehicles in broad daylight through no fault of their own.

Our firm and Domnick & Shevin PL are involved in a lawsuit against a motor coach company and its driver for a client who drove his employer’s passenger bus into the rear of the motor coach. The motor coach was stopped in a through lane without any traffic forcing it to stop or slow down. It did not have a flat tire, run out of gas, or have a mechanical emergency. Our client, who approached from behind in the same lane, had a clear view of the stopped vehicle beginning from approximately 1000 feet away. There were no cars in front of him in any of the approaching traffic lanes. Our client noticed the motor coach from a distance off, but it wasn’t until he was too close to avoid the accident that he perceived it was stopped. Our client sustained catastrophic injuries.

We have hired numerous experts to explain various elements of the case. An engineer will discuss speeds, distances and things of that nature. A trucking expert will describe industry standards and safety issues. Neither of these experts, nor the many doctors who will talk about our client’s horrible injuries and the economist, who will calculate past and future economic damages, are qualified to explain the phenomenon of why a trailing driver can plow into the rear of another vehicle without being at fault.

That is the job of a human factors expert. We have hired one of the best.
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drunk.jpgAstute personal injury lawyers always look for ways to maximize their client’s financial recovery. Establishing aggravating factors against the at-fault party is one of the main ways of doing this. In motor vehicle accident cases, there is no better opportunity for scoring points against the liable party than connecting alcohol use to the accident.

The involvement of alcohol can lead to a claim for punitive damages. The procedure for claiming punitive damages and the standards for holding a defendant liable for punitive damages are set forth in Florida Statute 768.72.

A claim for punitive damages may not be plead in the initial complaint. Rather, the Plaintiff must seek leave of court to amend the complaint to claim punitive damages. The judge should allow the amendment if evidence in the record or proferred by the Plaintiff provides a reasonable basis for recovery of such damages. Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996) and F.S. 768.72(1). Contrary to the proposition often put forward by Defendants, the statute does not require an evidentiary hearing to permit the amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court’s determination. Strasser v. Yalamanchi, 677 So.2d 455 (Fla. 2d DCA 1981).

768.72 says this about what must be shown to establish liability:

(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:

(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

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Used cars.jpgPurchasers of used goods, such as appliances and cars, often buy from dealers subject to the condition that the items are being sold “As Is.” Does this provision in a sale agreement insulate the seller from liability for personal injuries caused by a defect? Probably not.

Sellers use “As Is” disclaimers with the intention and expectation of disclaiming all warranties, both express and implied. To be valid, the disclaimers must meet certain requirements such as being written and conspicuousness within the written document.

An “As Is” disclaimer is not an exculpatory clause. An exculpatory clause relieves a party of tort liability. Because exculpatory clauses relieve parties of exercising due care, they are looked upon with disfavor in most states, including Florida. To be enforceable, an exculpatory clause must be so clear and understandable that “an ordinary and knowledgeable person will know what he is contracting away.”

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scales.jpgSome 80 years ago in Florida, workers’ compensation was substituted for the personal injury system as the nearly exclusive remedy for employees seeking compensation from employers for workplace accidents. The idea was that workers should not have to establish fault, a basic element of every personal injury case, in order to be compensated. In exchange for this valuable concession, employers were relieved from having to pay non-economic damages, broadly referred to as pain and suffering. In its original form, this quid pro quo was fair.

The quid pro quo is fair no longer. Through years of Republican rule – beginning with Governor Jeb Bush, in concert with right-wing dominated legislatures – the once equal quid pro quo balance has given way to a one-sided workers’ compensation system strongly favoring employers and their insurance carriers over injured workers.

See these blogs to understand the imbalance:

Due to the gross imbalance, accident lawyers must always consider ways to overcome the workers’ compensation immunity granted to employers. Unfortunately, the option is rarely available.

The known ways of overcoming the immunity have been:

  1. If an employer fails to have workers’ compensation coverage in place. See Florida Statute Section 440.11(a)
  2. An employer commits an intentional tort that causes the injury or death. See Section 440.11(b)
  3. Estoppel. The employer denies that the accident occurred in the course and scope of employment. See Byerley v. Citrus Publ’g, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999)

As of March 21, 2012, there may be a fourth way.
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