Articles Posted in Personal Injury

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With the exception of independent contractors working or performing services in the construction industry (Florida Statute 440.02(15)(c)3), individuals working as independent contractors are not eligible for workers’ compensation benefits from the companies for whom they are performing services. The reason why is because they are not considered employees of those companies. F.S. 440.02(15)(d)1.

These statements should not be misconstrued as meaning that employees of independent contractors are not entitled to workers’ compensation. Such employees are entitled to workers’ compensation from their own employers. However, in many instances, the individuals who work as independent contractors are self-employed or work for others who do not have workers’ compensation insurance.

Many companies seek to limit their workers’ compensation insurance premiums and claims by classifying individuals as independent contractors when they are not. On the opposite end of the spectrum, some companies try to avoid being sued for negligence by classifying independent contractors as employees. See Florida Statute 440.11 Exclusiveness of Liability.

The issue has been heavily litigated in Florida. To provide some guidance on the issue, the Florida Legislature created a checklist of factors to consider in making the determination. See 440.02(15)(d). The factors include:

  • Whether or not the individual maintained a separate business, with his or her own work facility, truck, equipment and materials;
  • Whether or not the individual holds or has applied for a federal identification number;
  • Whether or not the individual performs work for any entity in addition to the person for whom he or she was performing work at the time of the accident;
  • Whether or not the individual incurs the expenses of the work performed;
  • Whether or not the individual may realize a profit or a loss in connection with the work;
  • The success or failure of the individual’s business depends on the relationship of business receipts to expenditures

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In 1920, the Florida Supreme Court, in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), applied the dangerous-instrumentality doctrine to automobiles. The significance of the holding is that owners of automobiles are responsible for personal injuries caused through the negligence of those who drive their vehicles. The legal theory that holds the owner accountable is known as vicarious liability. The Supreme Court reasoned:

This form of vicarious liability is not based on respondent superior or an agency conception, but on the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent.

(See this blog for a major exception to the danagerous-instrumentality doctrine.)

In 1984, the Florida Supreme Court expanded the dangerous-instrumentality doctrine to include golf carts, even those being used on the golf course. Meister v. Fisher, 462 So. 2d 1071 Fla. 1984). However, as the evolution of common law doctrine moves at a glacial pace, it has not yet been determined if ATVs are dangerous-instrumentalities for purposes of vicarious liability. The question is likely to be answered soon.
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Workplace forklift accidents are common in Florida and often result in catastrophic injuries or death. Our law firm is currently handling two forklift accident cases, each involving serious injuries.

Employees injured in forklift accidents should be eligible to receive workers’ compensation benefits through the employer or its insurance company. The workers’ compensation benefits will consist of medical benefits and lost wages. Because of Florida Statute 440.11, these are the only benefits that will be available from the employer in most cases. There will be no compensation [from the employer] for pain and suffering, and only a remote chance of being indemnified for the loss of future earning capacity.

To be compensated for these damages, the injured worker must be able to make out a case of negligence against a third party, such as the forklift manufacturer or an outside forklift maintenance company. This is our strategy in one of the two forklift cases, in which the forklift failed to slow when it was being operated in reverse, causing the operator’s foot to be crushed between the forklift and a wall. In our other forklift case, we have eliminated third party liability as the cause.
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In its infinite wisdom (sarcasm intended), the Florida Legislature, in 2003, placed arbitrary caps on the amount of money persons harmed by medical negligence may recover for noneconomic damages. (Noneconomic damages are defined in Florida Statute 766.202(8) as follows: “Noneconomic damages” means nonfinancial losses that would not have occurred but for the injury giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act.) This blog will attempt to summarize the caps, as set forth in Florida Statute 766.118:

IF THE NEGLIGENCE IS COMMITTED BY A “PRACTITIONER” (“Practioners” include MDs, DOs, chiropractors, podiatrists, naturopathists, optometrists, dentists, midwives, physical therapists and nurse practioners as well as their employers (i.e. hospitals, private practice groups). See 766.118(1)(c)):

  • For personal injury: $500,000 per claimant, regardless of the number of practitioner defendants, and no practioner shall be liable for more than $500,000, regardless of the number of claimants.
  • For negligence resulting in a permanent vegetative state or death: $1,000,000 is the total amount recoverable from all practitioners, regardless of the number of claimants.
  • In cases that do not involve death or permanent vegetative state, if the trial court determines that the patient has sustained a catastrophic injury and the noneconomic harm sustained by the injured patient was particularly severe: $1,000,000 total by all claimants from all practitioner defendants.

IF THE NEGLIGENCE IS COMMITTED BY A NONPRACTITIONER:

  • Personal injury: $750,000 per claimant regardless of the number of nonpractitioner defendants.
  • Permanent vegetative state or death: $1.5 million per claimant.
  • In cases that do not involve death or permanent vegetative state, if the trial court determines that the patient has sustained a catastrophic injury and the noneconomic harm sustained by the injured patient was particularly severe: $1.5 million.

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In a previous blog, I wrote about the “enhanced injuries” doctrine in Florida. The doctrine stands for the proposition that a wrongdoer can be liable for damages extending beyond those resulting from the initial negligence. The example I used was of a simple car accident that triggered a defect in the victim’s vehicle, which caused a fire and catastrophic injuries well beyond the minor injuries resulting from the initial impact alone. Today’s blog is about the common characteristics associated with enhanced injury cases in the context of motor vehicle accidents and the various defects leading to those accidents.

Common characteristics include:

  • One or a few occupants are catastrophically or fatally injured while others have minor or no injuries;
  • Minor collisions resulting in catastrophic injury or death – see example in first paragraph;
  • Severe damage to or failure of a localized area of the vehicle (examples: roof crush or seat belt collapse);
  • Seat-belted occupants who are seriously injured or who are partially or fully ejected.

Typical Reasons for Enhanced Injuries:

Post-Impact Fuel Fed Fire Defects
Auto engineers agree that an occupant who survives the crash forces should not be injured or killed by a subsequent fire. Fire causing defects include:

  • Fuel Tank Location & Shielding. Fuel tanks placed in positions of risk to crushing or compromise, or not adequately protected against puncture damage.
  • Siphoning, Filler Tube & Fuel Line Failure: Excessive post-accident fuel leaks caused by failing to install inexpensive check-valve devices.

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tire_blowout.jpgThere is more to tire safety than adequate tread depth and proper inflation levels. Age alone is a major factor in tire safety. As tires age, the rubber dries out and makes them more prone to blowouts and tread separation. This applies to new-old-stock tires as well as to used tires.

No laws in the United States restrict the age of tires. In states with inspection laws – Florida is not one of them – all that is tested is tread wear. A tire has a useful life of six years. Accordingly, for consumers to get at least two years of useful life from a tire, it should be no more than four years old at the time of purchase.

Unfortunately, retailers can sell tires that are more than six years old. Many are much older, sometimes 15 years and above. These tires are accidents waiting to happen.
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To the surprise of many, most of the doctors who work in Florida’s hospital emergency rooms are not hospital employees. Instead, they are independent contractors. (It is quite rare for Florida hospitals to employ their ER physicians.) Equally surprising is that Florida law does not hold a hospital liable for a doctor’s negligence simply because the hospital grants privileges or credentials to the doctor, unless there was negligence in the credentialing. These matters become important when emergency room malpractice causes serious personal injuries and death.

With the reality of arbitrary statutory damage caps limiting the monetary exposure of medical negligence defendants, it is often necessary [for the victim or the victim’s family] to recover from multiple parties to be justly compensated for serious injuries or death. For such damages resulting from negligent emergency room services, the hospital would seem to be a natural target. Not so.

Today’s hospitals typically take the position that the doctors working in their emergency rooms are independent contractors, individuals for whom they have no legal liability when things go wrong. Strictly speaking, they may be right. Independent contracts are not employees, whose negligence subjects the employer to liability under the principle of respondeat superior (the Latin meaning is ‘let the master answer’).

Thankfully, Florida law does not accept the strict view of this consequential subject.

The main legal principles being used to hold hospitals accountable are:

  • Non-delegable duty
  • Actual agency
  • Apparent agency
  • Negligent credentialing

Non-delegable duty. This theory, which is not limited in its application to medical negligence cases, is most often utilized for activities involving the risk of serious injury or loss. In the context of emergency rooms, the risk is addressed by statutes and rules which set forth strict guidelines for modes of operation. Recent court decisions have relied on these rules and regulations to find that hospitals have a non-delegable duty to provide various non-negligent services in its emergency rooms.

Actual agency. The elements necessary to establish an actual agency relationship are: acknowledgment by the principal that the agent will act for him, the agent’s acceptance of the undertaking, and control by the principal over the actions of the agent.

Apparent agency.The main element of this principle is the impression through words and actions a hospital conveys to the public about its ER. Through advertising and appearance (e.g., uniforms; logos; paperwork; etc.), the general public can reasonably believe that an ER’s physicians are hospital employees. This is usually a fact question requiring a decision by the trier of fact, typically a jury.

Negligent credentialing. Involves granting privileges to an unqualified physician to practice medicine in the hospital. The mechanism for allowing a doctor to ply his trade in a hospital setting is supposed to be more than a rubber-stamp process. Thoughtful consideration based on rigorous standards should be followed.
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There is a distinct lack of unanimity throughout the country regarding the appropriate duty, if any, of a landowner for dangers presented by natural hazards on the landowner’s property. One camp applies the so-called “agrarian rule,” which provides that a landowner owes no duty to persons harmed by natural conditions on the land. The other camp applies the principle that a landowner may owe a duty of care for dangers posed by natural conditions when an invitee uses the property in a reasonable manner. (See this blog for the meaning of the legal term “invitee.”)

(Examples of such natural hazards include: tree roots obscured by leaves; view of sidewalk blocked by foliage; hole in ground covered by tall grass; traffic control device – e.g., stop sign, yield sign – obstructed by tree branches.)

Thankfully, Florida falls into the latter camp.
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Surprisingly, most of the clothing sold and manufactured in the United States today is regulated by a law enacted in 1953, the Flammable Fabrics Act. The law was enacted to remove only the most flammable garments, leaving unregulated countless other dangerous fabrics. As a result, every year thousands of people are injured and nearly two hundred die due to clothing-related burns. The Act provides minimal protection and is sorely outdated. More can and should be done.

An example of what can be done is the Children’s Sleepwear Standards Act, enacted by Congress in the 1970s. The goal of this Act was to protect children up to the age of 12 years from the unreasonable risk of burns caused by burning sleapwear. It has worked. The standards have resulted in a drastic reduction in clothing-related burn injuries and death to children.

Adults should not be mislead by labeling announcing the burn resistance or safety characteristics of their clothing. Language such as “Class one normal flammability” or “does not ignite,” terms commonly used in the industry, do not necessarily mean that a fabric will not ignite under real world conditions. Consider this: ordinary newsprint passes the standard of “Normal flammability.”
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“Umbrella” insurance is a relatively inexpensive way to obtain significant increases in important insurance policy coverage limits.

Consumers are familiar with motor vehicle and homeowners insurance policies. They are separate policies covering separate and distinct risks. Each has its own policy limits and premium charge.

Umbrella insurance is a distinct coverage that is purchased as a stand alone package to supplement other, separate policies, such as the the motor vehicle and homeowners examples mentioned above.

Example: A motor vehicle policy may provide bodily injury coverage of $10,000 or even $100,000. Separately, the homeowners policy (similar renters insurance is also available) may provide the same coverage limit.

Bodily injury coverage pays for personal injuries and death caused by the insured’s negligence. Although $100,000 in coverage is enough in most cases, in some cases it is not nearly enough. Some serious injuries command $1,000,000 and more in damages, while wrongful death damages can reach into the multiple millions. In these cases, the protection afforded by the primary policy is insufficient. This is where umbrella coverage comes into play.
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