Personal Injury

September 29, 2019

Jeffrey P. Gale, P.A. // Family Immunity in Florida Personal Injury Negligence Cases

Limiting situations that could give rise to (1) disruption of family harmony and (2) fraud or collusion between family members is a legitimate public policy. In this vein, Florida once barred all personal injury negligence actions by one family member against another. In Orefice v. Albert, 237 So.2d 142 (Fla. 1970), a case in which the mother of a child killed in an airplane crash sought recovery in both her and her son’s names from the boy’s father, the Florida Supreme Court stated:

It is established policy, evidenced by many decisions, that suits will not be allowed in this state among members of a family unit for tort. Spouses may not sue each other, nor children their parents. The purpose of this policy is to protect family harmony and resources.

237 So.2d at 145.

Parental/child immunity has its origins in an 1891 Mississippi case which based its decision on the importance of “peace of society … [and] the repose of families.” Hewllette v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891). Florida adopted the rule and recognized it in several cases. Orefice v. Albert, 237 So.2d 142 (Fla. 1970); May v. Palm Beach Chemical Co., 77 So.2d 468 (Fla. 1955).

Parental/child immunity was abrogated by the Florida Supreme Court in Ard v. Ard, 414 So.2d 1066 (Fla.1982).

Ard involved a lawsuit brought by a minor child seeking compensation for serious personal injuries caused by the negligence of his mother. The defendants raised the doctrine of parental immunity as a defense. On both conflict and great public importance jurisdiction, the case ended up in the Florida Supreme Court, which decided as follows:

While we reaffirm our adherence to parental/family immunity, we hold that, in a tort action for negligence arising from an accident and brought by an unemancipated minor child against a parent, the doctrine of parental immunity is waived to the extent of the parent’s available liability insurance coverage. If the parent is without liability insurance, or if the policy contains an exclusion clause for household or family members, then parental immunity is not waived and the child cannot sue the parent. (Bold added for emphasis.)

The doctrine of interspousal tort immunity barring actions by one spouse against another has a long and established history in Florida law. See Corren v. Corren, 47 So.2d 774, (Fla. 1950). The doctrine has its origins in the fiction that the marriage of two people creates a unified entity of one singular person. Corren, supra. The reasoning was that a person or entity cannot sue itself. Sturiano v. Brooks, 523 So. 2d 1126, 1128 (Fla. 1988).

September 2, 2019

Jeffrey P. Gale, P.A. // Injured Workers and the Fallacy of the Double Recovery

by Jeffrey P. Gale, P.A.

Despite what some people believe, injured workers who are compensated both under workers’ compensation and the civil legal system for the same accident, do not receive a double recovery, or windfall. Section 440.39(3), Florida Statues, authorizes workers’ compensation carriers to file a lien against the claimant’s recovery in the civil action. The lien attaches to benefits recovered in the civil matter that duplicate those received by the claimant in the workers’ compensation case, typically only medical benefits and wage compensation. (The common law allows damages for pain and suffering, and loss of spousal services, which are not provided for under the workers’ compensation act. The workers’ compensation lien does not attach to these damages.)

Even if the workers’ compensation carrier does not file a notice of lien in any subsequent civil action which would operate as a lien on any judgment in favor of the injured employee, Florida’s collateral source statute would at least prevent a double recovery on the part of the injured employee. See § 768.76(1), Fla. Stat. (2019). Section 768.76 states that “the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources….”

Importantly, § 768.76(1), Fla. Stat. (2019) goes on to say that “there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.” Florida courts have stated that “workers’ compensation benefits are a collateral source” within the meaning of the statute. Am. Mut. Ins. Co. v. Decker, 518 So.2d 315, 317 (Fla. 2d DCA 1987), adopted in Liberty Mut. Ins. Co. v. Chambers, 526 So.2d 66, 67 (Fla.1988).

August 31, 2019

Jeffrey P. Gale, P.A. // Particular Difficulties and Deceits Involving Long Term Disability Insurance

by Jeffrey P. Gale, P.A.

With a sizable portion of our law firm’s practice engaged in the representation of injured workers, we often tangle with issues related to long term disability insurance. LTD is commonly offered by employers to their employees as a fringe benefit. The employer either pays the full premium, a portion thereof, or nothing at all. One advantage of a group plan (employer based) over an individual plan is that the premium is typically lower due to economies of scale. On the other hand, disputes under group plans are more difficult for insureds to prosecute as compared to individual plans, as the former fall under the less consumer friendly federal ERISA law while the latter are governed by more equitable state laws. Group or individual, benefiting from LTD insurance can prove illusory.

An LTD insurance policy is a contract. Its terms control the rights and duties of the parties to the contract. Most LTD policies provide that LTD benefits will be offset against disability payments received from other sources such as workers’ compensation and Social Security Disability (SSD). For example: assume that the LTD policy provides for a $2,000 monthly payment for a qualifying disability. However, if the insured is receiving $500 per week from workers’ compensation or a monthly payment from Social Security Disability (SSD), the $2,000 LTD payment will be reduced by the amount of those payments. Hence, a $500 weekly payment from WC will reduce the LTD carrier’s obligation to zero. Not surprisingly, LTD does not rebate the premium to its insured under this circumstance.

LTD insurance carriers know that a large percentage of disabling injuries are work related. Because the qualifying requirements for workers’ compensation disability benefits and LTD are always similar, injured workers are usually just as likely to qualify for workers’ compensation benefits as they are for LTD benefits. LTD carriers also know that those who meet their qualifying standards can also be expected to qualify for SSD benefits. Only a tiny fraction of LTD policy consumers will not be eligible for one of the other benefits if not both.

August 15, 2019

Jeffrey P. Gale, P.A. // Election of Remedy

by Jeffrey P. Gale, P.A.

Accident victims can sometimes bring a legal claim seeking compensation for their losses. They may even have the option of electing a remedy between personal injury common law and workers’ compensation statutory law. The choice can be consequential.

Personal injury claims are cases at common law. In Florida, recoverable damages in personal injury claims include medical expenses, lost wages, and pain and suffering. In suits at common law, the 7th Amendment to the U.S. Constitution guarantees the right of trial by jury.

Workplace injury cases in Florida against employers can be limited to the statutory remedies outlined in Chapter 440 of the Florida Statutes. Cases are tried before administrative law judges (known as Judges of Compensation Claims, or JCC) and, unlike in personal injury cases, compensation for pain and suffering cannot be awarded.

Election of Remedy is a legal concept concerning:

The liberty of choosing (or the act of choosing) one out of several means afforded by law for the redress of an injury, or one out of several available Forms of Action. An election of remedies arises when one having two coexistent but inconsistent remedies chooses to exercise one, in which she or he loses the right thereafter to exercise the other. The Doctrine provides that if two or more remedies exist that are repugnant and inconsistent with one another, a party will be bound if he or she has chosen one of them. The Free Dictionary.

The doctrine “… is an application of the doctrine of estoppel and provides that the one electing should not later be permitted to avail himself of an inconsistent course.” Williams v. Robineau, 124 Fla. 422, 168 So. 644, 646 (1936).

While there is plenty of case law on the subject, it is still not entirely clear what constitutes an election sufficient to lock in the choice. This uncertainty was acknowledged by the Florida Supreme Court in Jones v. Martin Electronics, Inc., 932 So.2d 1100 (Fla., 2006): “[I]n the context of workers’ compensation, the point upon which a worker’s action with regard to a compensation claim constitutes an election of the workers’ compensation remedy to the exclusion of a civil action is not entirely clear.” Jones @ 1105.

July 26, 2019

Jeffrey P. Gale, P.A. // Pre-Settlement Considerations for Claimants/Plaintiffs Receiving Both Medicare and Medicaid Benefits

by Jeffrey P. Gale, P.A.

Settling an injury case is not as easy as it once was. In the old days, cases would be settled with little or no consideration being given to satisfying liens and protecting an injured person’s right to receive post-settlement Medicare and Medicaid benefits. Rather than attorney neglect, much of this was due to weak and sometimes non-existent lien rights and undeveloped requirements for protecting the interests of Medicare and Medicaid. Times have changed. This blog will touch on the interplay between Medicare Set-Asides (MSA) and Medicaid’s means-tested Supplemental Security Income (SSI) benefits.

According to the Centers for Medicare & Medicaid Services (CMS), a “Medicare Set-Aside Arrangement (WCMSA) is a financial agreement that allocates a portion of a … settlement to pay for future medical services related to the … injury, illness, or disease. These funds must be depleted before Medicare will pay for treatment related to the … injury, illness, or disease.” While MSAs have been part of the workers’ compensation landscape for many years, it is unclear, despite years of discussion, whether they are required in personal injury cases. In cases involving serious injuries where the plaintiff will most definitely require future medical care, caution dictates considering, at least, the creation of an MSA.

Supplemental Security Income (SSI) “is a Federal income supplement program funded by general tax revenues (not Social Security taxes):

It is designed to help aged, blind, and disabled people, who have little or no income; and
It provides cash to meet basic needs for food, clothing, and shelter.”

The more countable income you have, the less the SSI payment will be. Moreover, if your countable income is over the allowable limit, you cannot receive SSI benefits at all.

July 24, 2019

Jeffrey P. Gale, P.A. // Post-Settlement/Post-Judgment Payment of Medical Expenses by Health Insurance

by Jeffrey P. Gale, P.A.

Once a case involving personal injuries has been settled or resolved by the payment of a final judgment, the injured party will receive no more money from the closed matter to cover any later incurred expenses such as those for medical care. This rule applies in both civil and workers’ compensation cases.

The question often arises as to whether health insurance will cover post-resolution incurred expenses. The answer depends on the type of coverage available. Medicare, for example, will not cover expenses for which a person has been compensated in an underlying personal injury or workers’ compensation case unless a pre-determined portion of the compensation is first exhausted. The amount that must be exhausted is set forth in what is known as a Medicare Set Aside Arrangement. In contrast, medical benefits available through the Veterans Administration are not subject to being offset against funds recovered in the underlying accident case. These are the two extremes. Health insurance benefits provided through ERISA plans and the Affordable Care Act fall somewhere in between.

A majority, albeit dwindling, number of Americans receive group health insurance through their employers. (The trend is for employers to reduce employee work hours to avoid having to provide group health insurance.) The rights and duties of insureds and insurers under these plans is governed by a federal law known as ERISA (Employee Retirement Income Security Act), see 29 U.S.C. §§ 1001-1461. Many other individuals are covered by individual insurance policies mandated by the Affordable Care Act (ACA), also known as “Obamacare.” Even though ERISA plans must meet certain ACA requirements, in various other important respects the plans are less consumer friendly than individual ACA policies, which are governed by Florida law for Florida issued policies. Two of the most significant differences involve challenging the denial of claims and carrier subrogation rights.

June 30, 2019

Jeffrey P. Gale, P.A. // Loss of Consortium — Think Twice (or more) Before Making This Claim

by Jeffrey P. Gale, P.A.

Florida case has long allowed the spouse of an injured married partner to bring a cause of action for loss of consortium, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium. Busby v. Winn & Lovett Miami, Inc., 80 So.2d 675 (Fla.1955). Such damages range from the loss of household services (such as cooking and cleaning) to adversely affected sexual relations. It is precisely because of the spouse’s right to loss of consortium damages that both spouses are typically required to sign settlement releases.

While the consortium claim is a separate cause of action, as a derivative claim it must be brought in the same lawsuit as the underlying injury claim. As so eloquently stated by ace Florida trial lawyer Dale Swope, there are consequential reasons for not rushing headlong into bringing a claim for loss of consortium: “[T]hey can do more harm than good. They open the door to broader discovery, lead to internal disagreement, create the potential risk of execution on jointly held assets, and look to the jury like a lawyer-created claim that is just excessive. They also do not increase the coverage available (except in sovereign cases) and can also cause trouble with Medicaid if the allocation of a global recovery is made unilaterally.” See May/June 2019 Florida Justice Association Journal. Hence, unless the spouse has demonstrable damages, it may be best to let is rest. (All too often, spouses overestimate the value of consortium claims or their lawyers fail to give adequate consideration to the negatives.)

June 22, 2019

Jeffrey P. Gale, P.A. // Golf Carts, Low Speed Vehicles (LSV) and Florida Personal Injury Law

by Jeffrey P. Gale, P.A.

We represent a gentleman who was recently involved in a horrible crash while operating his Ford F-150 truck in a gated Lee County, Florida community. The operator of the other vehicle, which crossed into our client’s oncoming lane of traffic, died in the crash. Our client sustained significant personal injuries, including emotional distress. (For example, he is haunted from the experience of trying to help the dying man at the accident scene.)

We are seeking compensation for our client’s damages. While Florida No-Fault Insurance (a/k/a “PIP”) may cover some of his medical expenses and lost wages, he did not maintain the type of coverage — UM/UIM — under his own motor vehicle policy to compensate for non-economic damages such as pain and suffering and for economic losses (e.g., wage loss (past) and loss of earning capacity (future)) and medical expenses in excess of the PIP policy limit (typically $10,000).

Our investigation has determined that the at-fault driver maintained bodily injury (BI) insurance under his own motor vehicle policy. The listed insured vehicle under the policy is a Lexus. At the time of the tragic crash, the insured was driving a golf cart or a modified golf cart known as a low speed vehicle. The vehicle was not listed in the insurance policy.

Section 320.01(22), Florida Statutes defines a “golf cart” as “a motor vehicle that is designed and maintained for operation on a golf course for sporting or recreational purposes and that is not capable of exceeding speeds of 20 miles per hour.” (emphasis added). By contrast, a “low-speed vehicle” is defined as “any four-wheeled electric vehicle whose top speed is greater than 20 miles per hour but not greater than 25 miles per hour, including neighborhood electric vehicles. Low-speed vehicles must comply with the safety standards in 49 C.F.R. s. 571.500 and s. 316.2122.” § 320.01(42), Fla. Stat. For insurance coverage purposes, the distinction might prove consequential in our case.

April 24, 2019

Jeffrey P. Gale, P.A. // Gap in Protection for Florida Uber Eats Bicycle Riders

by Jeffrey P. Gale, P.A.

We represent a hardworking young college student who was struck by a hit-and-run vehicle and left for dead by the side of the road while delivering for Uber Eats on his bicycle. He spent a week in Ryder Trauma Center, a leading catastrophic care facility, with life threatening injuries ranging from traumatic brain injury (TBI) to bone fractures.

Florida Statute 627.748 imposes obligations on Transportation Network Companies (TNC) to maintain primary automobile insurance coverage while an authorized driver is engaged in service operations. The types of required coverage are death and bodily injury (BI), property damage (comprehensive and collision), uninsured/underinsured motorist (UM/UIM), and personal injury protection (PIP), with varying policy limits depending on whether the participating TNC driver is engaged in a prearranged ride or logged on to the digital network but not engaged in a prearranged ride.

Unfortunately, the statute leaves a gaping hole for victims like our young college student. By its terms, the statute is limited to situations where the TNC driver is engaged in a prearranged ride (with or for a “rider”) or is logged on to the network while operating a motor vehicle. Since a bicycle is not a motor vehicle and food is not a “rider” — defined in 627.748 as “an individual who uses a digital network … to obtain a prearranged ride in the TNC driver’s vehicle….” — our young client may never be compensated for his damages (injuries, medical expenses, lost wages).

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.