Personal Injury

May 1, 2022

Jeffrey P. Gale, P.A. // Exculpatory Clauses Place Florida School Children at Risk

One of the main goals behind holding individuals and corporations accountable for the damage caused by their negligence is to make society a safer place. The thinking is that to avoid the substantial hassle and expense of lawsuits and damage awards, thoughtful people will act reasonably.

An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury. Elalouf v School Board of Broward County, 311 So.3rd 863, 865 (Fla. 4th DCA 2021). Exculpatory clauses are commonly used against children in Florida’s public and private schools.

April 29, 2022

Jeffrey P. Gale, P.A. // UM Carrier Not Entitled to Setoff for Benefits Paid by Private Health Insurance

by Jeffrey P. Gale, P.A.

The law disfavors windfall recoveries and insurance carriers are always seeking to be the beneficiaries of this public policy. One way carriers seek to benefit from this policy is by reducing jury verdicts by amounts recovered in damages from other sources. This is known as “Setoff.”

Uninsured and underinsured motor vehicle coverage is an optional form of insurance provided in motor vehicle insurance policies “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.” Section 627.727(1), Florida Statutes.

The statutory section contains the following setoff language:

March 24, 2022

Jeffrey P. Gale, P.A. // $2 Million Settlement Achieved by Avoiding Florida’s Workers’ Compensation Immunity Law

by Jeffrey P. Gale, P.A.

What began as a product liability investigation, ended in a $2,000,000 personal injury settlement against the owner of an altered riding lawnmower (pictured).

Our client lost his right leg when run over by the lawnmower he was operating for his employer. Initially thinking that the mower was owned by the employer, which would give the employer workers’ compensation immunity, we set our sights on a product liability case as the only way to secure a civil remedy for our client.

We quickly discovered that any products liability case was barred by Florida’s Statute of Repose. We also learned that our accident was caused by a post-manufacture alteration to a safety feature.

December 21, 2021

Jeffrey P. Gale, P.A. // Where the Insurance Policy is Delivered Can Matter

by Jeffrey P. Gale, P.A.

We recently resolved a case involving a reimbursement dispute under an Occupational Health & Disability Insurance Policy. Our client, an independent trucker, had sustained catastrophic injuries from being struck by a motor vehicle as he was changing a tire while parked in a gore on I-95 in Florida. He was hospitalized in intensive care and was unable to return to work for nearly two years. Thankfully, he was covered under the insurance policy, which paid his medical bills and lost wages.

The insurance policy contained language entitling the carrier to be reimbursed in full from any money our client was paid as a result of the accident.

We sued two individuals and a company seeking damage compensation for our client. After litigating the case for more than three years, we secured a reasonable settlement. We held the money in trust pending resolution of the Occupational Health & Disability Insurance carrier’s reimbursement claim. Unable to work out the claim amicably, we filed a petition to resolve the claim with the court that handled the underlying personal injury case. (Anticipating problems in resolving the reimbursement claim amicably, we asked the court to retain jurisdiction for that eventuality. Doing so allowed us to keep a smart judge and avoid a new filing fee.)

The policy contained the following language: “The Policy is governed by the laws of the jurisdiction in which it is delivered.”

The insurance carrier was home based in another state and the policy was made available to large companies throughout the United States who used independent drivers like our client, through a trust company based in Washington, DC. The carrier argued that Washington, DC law applied to the reimbursement claim since the policy was delivered to the trust in DC. Under DC law, the terms of the policy would control. This would effectively enable the carrier to recover 100% of the underlying settlement without our client netting anything. (The underlying case had exceedingly difficult liability issues. The most at-fault person, who was intoxicated, had no insurance and died penniless before we got the case. We ended up suing a separate company, which was responsible for highway assistance, for failing to have proper warning lights on its vehicle. We received a sizeable settlement, but the amount paid by the OH&D carrier was more sizeable.)

We argued that Florida law, in particular, Florida Statute 768.76(4), applied to the reimbursement dispute. Under this statute, the court would be allowed to reduce the reimbursement amount owed by taking various equitable factors into consideration including procurement costs and comparing the settlement amount to the full value of the case. See Jeffrey P. Gale, P.A. // Resolving Health and Disability Insurance Liens in Personal Injury Cases Under Florida Statute 768.76.

December 18, 2021

Jeffrey P. Gale, P.A. // Proceed Cautiously With Settlement Releases

by Jeffrey P. Gale, P.A.

Think of an injury case like navigating a ship from one port to another. Signing up the case is the equivalent of throwing off the ropes and pulling safely away from the dock. Being at sea is analogous to litigation. Some days you will eat the bear and some days the bear will eat you. Stay your course. Invariably, chart adjustments will be necessary, but the final destination always remains the same: favorable resolution of the case. Settling the case equates to pulling into port. However, it is not the last act. The ship must be successfully docked and secured. The Settlement Release is part of this final act. It must be done properly to avoid damaging the ship.

Our law firm handles both workers’ compensation and personal injury/wrongful death cases. It is not uncommon to have both types of cases arising out of one accident. For example, we represent a gentleman who suffered numerous catastrophic injuries in a motor vehicle crash. Since the accident happened in the course and scope of his employment, he was covered under workers’ compensation. We recently settled the workers’ compensation case. The common law liability case, against the second vehicle’s owner and our client’s co-worker [brought under a theory of gross negligence to overcome workers’ compensation immunity], remains ongoing.

As part of the workers’ compensation mediated settlement, the workers’ compensation carrier agreed that the settlement did not affect the liability case against the third party or the co-worker. Nevertheless, the General Release it submitted to us contained wording that could be construed as preventing our client from proceeding against the co-worker. We have reworded it to avoid this outcome.

September 22, 2021

Jeffrey P. Gale, P.A. // Personal Injury/Wrongful Death Damages Can Include Those Caused by an Aggravating Intervening Cause

by Jeffrey P. Gale, P.A.

We are representing the surviving spouse of an elderly gentleman who fell and broke his hip due to the negligence of a condominium association. While hospitalized for the serious injury, he contracted Covid 19 and died. Our claim against the condo association is for his wrongful death rather just for the broken hip. We are doing so on the authority of Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977).

In Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977), a car crash victim’s injuries were made worse by the negligence of a treating doctor. The victim was allowed to claim damages for the enhanced injuries from the parties liable for the underlying car crash case.

August 22, 2021

Jeffrey P. Gale, P.A. // Health and Disability Insurance Reimbursement Rights in Florida Personal Injury Cases

by Jeffrey P. Gale, P.A.

It is common for health and disability (lost wages) insurance companies to pay benefits to their insureds who have been injured through the negligence of others. Most of the insurance policies contain language granting the insurance company a right of reimbursement for the money it has paid out from the proceeds recovered by the insured in the personal injury case for the same losses.

How much must be repaid depends on policy language and who is paying the settlement or judgment in the personal injury case.

Many of the insurance policies provide that the carrier has the right to be reimbursed in full up to the amount recovered in the liability case before the insured and the insured’s attorney receive penny one. When the compensation is paid by a tortfeasor, who is the person or entity responsible for causing the harm, reimbursement is determined by the formula set forth in section 768.76(4), Florida Statutes. The statutory formula applies even where the insurance policy calls for full reimbursement to the carrier first. In Ingenix v. Ham, 35 So.3d 949 (Fla. 2nd DCA 2010), Gerald Ham’s health insurer, UnitedHealthcare, paid almost all of Ham’s medical bills relating to a medical procedure that ultimately resulted in his death. After settling with the medical providers (i.e., tortfeasors) in a medical malpractice lawsuit, Ham’s estate contended that it was only required to reimburse UnitedHealthcare a reduced amount according to the formula set out in section 768.76(4), Florida Statutes (2008). UnitedHealthcare took the position that it was entitled to full reimbursement in accordance with the language of its policy. The court held that section 768.76(4) controlled, limiting UnitedHealthcare’s reimbursement to the formula under section 768.76(4).

July 6, 2021

Jeffrey P. Gale, P.A. // Ordinary Negligence vs. Medical Negligence (Malpractice)

by Jeffrey P. Gale, P.A.

The difficulties and limitations associated with medical negligence claims are many. The list includes:

Medical malpractice claims have a shorter statute of limitations than ordinary negligence claims — two years versus four years. See § 95.11(4)(b) and § 95.11(3)(a).
Prospective medical malpractice plaintiffs must comply with complex and costly presuit requirements, as set forth in chapter 766, Florida Statutes, before filing a medical malpractice suit, which includes conducting “an investigation to ascertain that there are reasonable grounds to believe” that medical malpractice occurred. Ordinary negligence claims do not have these requirements. Id. § 766.203(2); see generally id. § 766.201-.212.
The restrictions that chapter 766 places on medical malpractice plaintiffs’ ability to prove their cases persist even after a lawsuit is filed, such as providing specific qualifications for medical experts testifying as to the standard of care. See generally id. § 766.102.
Certain adult children (over the age of 25) whose parents die as a result of medical negligence are barred from recovering lost parental companionship, instruction, and guidance and for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(3).
Certain parents of adult children who die as a result of medical negligence are barred from recovering for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(4).

“Because of the statutory restrictions and requirements that apply only to medical malpractice claims, any ‘doubt’ as to whether a claim is for ordinary negligence or medical malpractice should be ‘generally resolved in favor of the claimant.”‘ J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla. 1994).

May 31, 2021

Jeffrey P. Gale, P.A. // Personal Injuries Sustained in Subsequent Accident May Be Compensable

by Jeffrey P. Gale, P.A.

We currently represent an elderly woman who was knocked down in the hallway of her condominium building by a large, unleashed dog. She fell and struck her head on the ground. In the days following the event, she had headaches and was lightheaded. While taking a shower, she fainted. As a result of this event, she was hospitalized then transferred to a facility for a month of rehabilitation. She is now receiving 24/7 attendant care at home.

Are the injuries sustained from the subsequent fall compensable?

Something similar happened in Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So. 2d 549 (Fla. 1951). The Plaintiff/Appellee had suffered a brain concussion and other injuries in a motorcycle accident. Within weeks of the accident, he climbed a ladder to reach his attic. While descending, he suffered a dizzy spell and fell to the concrete floor. His injuries from this fall were permanent and catastrophic — paralysis in his lower and upper extremities.

September 28, 2020

Jeffrey P. Gale, P.A. // Licensed Massage Therapists Not Entitled to PIP Payments

by Jeffrey P. Gale, P.A.

Personal Injury Protection (PIP) is mandatory insurance coverage for Florida motor vehicle owners. It covers a limited amount of medical expenses and lost wages, typically $10,000 total.

The PIP statute, s. 627.736, is particular as to which types of medical providers may seek reimbursement. In Geico General Insurance Co. v. Beacon Healthcare Center, Inc. (Fla. 3rd DCA; opinion filed February 26, 2020), the court confirmed that “a person who is licensed as a massage therapist, but not licensed as a physical therapist,” may not be reimbursed by PIP.

A number of GEICO insureds sought treatment at Beacon Healthcare Center, Inc. During their initial consultations, the treating physician (and Beacon’s medical director) prescribed therapy modalities that were provided by massage therapists who held massage therapy licenses, but did not hold licenses in physical therapy. The massage therapists were not directly supervised on site by either a licensed physical therapist or by a medical physician when they performed the treatments.