Personal Injury

April 9, 2019

Jeffrey P. Gale, P.A. // Recent First DCA Ruling in a Workers’ Compensation Case May Open Floodgates for More Personal Injury Cases

Many experts believe that the First District Court of Appeal’s April 5, 2019 ruling in Sedgwick CMS v. Tamatha Valcourt-Williams will open the floodgates for more civil negligence lawsuits brought by employees against employers.

Because of the immunity provisions of section 440.11, Florida Statutes, such lawsuits have always been exceedingly rare in Florida. Under the current version of the statute, the exceptions to this exclusiveness of liability are:

When an employer fails to secure workers’ compensation coverage; or
When an employer commits an intentional tort that causes the injury or death of the employee

A third exception arises when an employer/carrier defends a workers’ compensation claim on the basis that “the injury did not occur in the course and scope of employment, or that there was no employment relationship.” An employer taking this position is estopped from asserting the 440.11 workers’ compensation immunity defense in a civil negligence suit brought against the employer. See, Byerely v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999).

The Sedgwick case appears to have expanded the scope of injuries workers’ compensation employers/carriers can deny as not having occurred in the course and scope of employment. The flip side of this will be an increase in opportunities for personal injury lawyers to pursue civil negligence claims resulting from workplace accidents. It remains to be seen if these projections will hold up over time, but workers’ compensation insurance companies and personal injury lawyers are not expected to waste any time testing the waters.

As workers’ compensation claimants’ attorneys are bracing for an onslaught of denied claims, personal injury lawyers are licking their chops at the prospect of seeing an expanded number of personal injury cases come their way. While a denied claim may still be prosecuted under workers’ compensation, some of those denials will naturally end up as circuit court negligence cases. In those cases, claims of workers’ compensation immunity will be met with Byerley and Sedgwick arguments. Moreover, Sedgwick expands the opportunities to jump right into the personal injury arena rather than wait for the claim to be denied under workers’ compensation. While not waiting has always been an option, Sedgwick makes it easier for the plaintiff to argue successfully that the injury did not occur in the course and scope of the employment.

In Sedgwick, a workers’ compensation adjuster authorized to work from home injured herself during a coffee break when she tripped over her dog. She filed for workers’ compensation benefits and won at the trial level. The employer appealed and was successful in having the trial level decision reversed. The DCA decided that the adjuster was not injured in the course and scope of her employment. It framed the question of compensability as “whether the employment—wherever it is—’“necessarily exposes a claimant to conditions which substantially contribute to the risk of injury,”’ a concept it calls “occupational causation,” Sentry Ins. Co. v. Hamlin, 69 So.3d 1065, 1068 (Fla. 1st DCA 2011) (citing Acker v. Charles R. Burklew Constr., 654 So.2d 1211 (Fla. 1st DCA 1995)), or a risk not existent in the claimant’s “non-employment life.” Medeiros v. Residential Cmtys. of Am., 481 So. 2d 92, 93 (Fla. 1st DCA 1986); accord Glasser v. Youth Shop, 54 So. 2d 686, 687-88 (Fla. 1951) (“Since industry must carry the burden, there must then be some causal connection between the employment and the injury, or it must have had its origin in some risk incident to or connected with the employment, or have followed from it as a natural consequence.”).

March 26, 2019

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Immunity and the Dangerous Instrumentality Doctrine

by Jeffrey P. Gale, P.A.

With few exceptions, section 440.11, Florida Statutes grants immunity from tort liability to employers and the co-employees of Florida workers injured in the course and scope of their employment. In most cases, the doctrine precludes relief outside of the workers’ compensation system.

Florida’s dangerous instrumentality doctrine is a common law doctrine which provides that the owner of an inherently dangerous tool is liable for any injuries caused by that tool’s operation. The Florida Supreme Court in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 469 (Fla. 1920), extended the doctrine to motor vehicles, holding that owners may be held accountable for any damages suffered by third parties as the result of the negligent operation of their vehicles, when they are driven by others with their knowledge and consent. This doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another. (Other examples of dangerous instruments include: Newton v. Caterpillar Financial Services (multi-terrain loader); (Rippy v. Shepard) (farm tractor); (Harding v. Allen-Laux, Inc.) (forklift); (Halifax Paving, Inc. v. Scott & Jobalia Const. Co.) (crane); Meister v. Fisher, 462 So.2d 1071 (Fla. 1984) (golf cart); Sherrill v. Corbett Cranes Services, 656 So.2d 181 (Fla. 5th DCA 1995) (crane); Lewis v. Sims Crane Service Inc., 498 So.2d 573 (Fla. 3d DCA 1986) (construction hoist); Eagle Stevedores, Inc. v. Thomas, 145 So.2d 551 (Fla. 3d DCA 1962) (tow-motor).

It is not uncommon for employers to use such dangerous instrumentalities in the workplace that are owned by others. This raises the question of whether the owner of a dangerous instrumentality shares the same immunity as employers and co-employees. In Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla. 1966), workers’ compensation immunity was extended to Ryder, the owner of two motorcycles involved in a crash that were leased to the employer. The Florida Supreme Court declared that the motorcycles in effect had become working tools of the employer, much like a fellow employee. Smith was subsequently relied on by the Supreme Court in Halifax Paving, Inc. v. Scott & Jobalia Const. Co., 565 So. 2d 1346 (Fla., 1990), to extend immunity to the owner of a crane who merely loaned the equipment to the employer as a matter of courtesy.

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.

January 3, 2019

Jeffrey P. Gale, P.A. // Constitutionality of Florida Hospital Lien Depends on Mechanism of Creation

by Jeffrey P. Gale, P.A.

Hospitals expect to be paid for services rendered. Payment sources range from personal funds, government assistance, to insurance. When the accident is job related, workers’ compensation will pay the hospital in compensable cases. When the accident is not job related, third parties responsible for causing the accident may have to pay compensation for hospital expenses.

Hospital liens are created by legislation. The purpose of these provisions is to “assure a hospital of its rights to proceeds which are held by an insurance company whose insured is liable for the injuries suffered by the hospital’s patient.” Palm Springs Gen. Hosp., Inc. v. State Farm Mut. Auto. Ins. Co., 218 So. 2d 793, 797-98 (Fla. 3d DCA 1969). The carrier is never obligated to pay more than its policy limits, see, Shands Teaching Hosp. v. Mercury Ins. Co., 97 So.3d 204 (Fla., 2012), and whether or not any insurance proceeds are paid, the patient remains responsible for all outstanding charges and can be sued by the hospital for breach of contract with regard to same. In some instances, the patient’s personal injury lawyer can negotiate a reduction in the bill.

Florida hospital liens have been created by Special Acts of the Florida Legislature and by ordinances. Liens created by the Florida Legislature are unconstitutional and unenforceable.

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.

November 21, 2018

Jeffrey P. Gale, P.A. // Florida Law Regarding Settlement Setoffs in Personal Injury Cases

by Jeffrey P. Gale, P.A.

Florida law regarding setoffs is found in sections 46.015(2), 768.041(2), and 768.31(5), Florida Statutes. Each of these statutes presupposes the existence of multiple defendants jointly and severally liable for the same damages. See Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d 249, 253 (Fla. 1995).

Back when defendants were jointly and severally liable for all damages in negligence cases, the setoff statutes authorized courts to reduce damage awards by the amount of settlement proceeds paid by other entities and individuals in the case. (The doctrine of joint and several liability was part of Florida’s common law for many years. See Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914)(All negligent defendants were held responsible for the total of the plaintiff’s damages regardless of the extent of each defendant’s fault in causing the accident).) While the courts began to have its doubts about joint and several liability as early as the 1970s, because the doctrine had been perceived as unfairly requiring a defendant to pay more than his or her percentage of fault — in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), the Florida Supreme Court took the first step toward equating liability with fault by eliminating the doctrine of contributory fault. Thereafter, in Lincenberg v. Issen, 318 So.2d 386, 391 (Fla. 1975), the court abolished the rule against contribution among joint tortfeasors, stating that “it would be undesirable for this Court to retain a rule that under a system based on fault, casts the entire burden of a loss for which several may be responsible upon only one of those at fault…” — it took legislative action to spell its demise. In 1986, with the enactment of section 786.81, the Florida Legislature abolished joint and several liability for noneconomic damages. In 2006, it did the same with regard to economic damages. Hence, with the elimination of joint and several liability, it would appear that the setoff statutes are inapplicable in negligence cases — See Wells and Port Charlotte HMA, LLC v. Suarez, 210 So. 3d 187 (Fla. 2nd DCA 2016) — replaced by the legal doctrine known as comparative fault, defined in the current version of section 786.81(3) as follows:

In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.

September 23, 2018

Jeffrey P. Gale, P.A. // Non-Delegable Duty in Florida Personal Injury Cases

by Jeffrey P. Gale, P.A.

We have pending on appeal before the Third District Court of Appeal the question whether a homeowner’s association is liable under the non-delegable duty doctrine for the negligence of a third party. The association undertook the reconstruction of a boat dock by hiring a construction company. The construction company created a dangerous condition. Neither the association, which controlled the property, nor the construction company took adequate measures to protect residents and guests from injury. While attending a party as an invited guest at one of the townhouses, our client sustained serious injuries because of the dangerous condition. The jury found the townhouse owner partially at fault for failing to warn our client of the dangerous condition, which was approximately 100 feet from the back porch of the townhouse. The trial court refused to apply the non-delegable duty doctrine to impose liability on the homeowner’s association liable for the percentage of fault the jury attributed to the townhouse owner.

While there are no Florida cases directly on point, we did find some out of state and federal cases that, while not exactly on point either, appear to be instructive on the issue. The following cases stand for the proposition that someone with a non-delegable duty cannot escape liability by relying on others to fulfill the duty, and not just independent contractors. Two of those cases, Whitehead v Food Max and Tolman v Johnson are premises liability cases, but are not directly on point. The others are product liability cases where it is the duty to warn that is non-delegable.

Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265 (5th Cir, 1998). This case is a negligent security case where a mother and her daughter were abducted from a Kmart parking lot, robbed and sexually assaulted. The Circuit Court recognized that Mississippi imposed a duty upon business owners to maintain the premises in a reasonably secure or safe condition, including the protection of patrons from wrongful acts of third parties. In challenging the verdict/judgment in favor of the plaintiffs, Kmart argued the sufficiency of the evidence on foreseeability and challenged the propriety of jury instructions. In particular, Kmart complained about a jury instruction that said Kmart could not rely upon law enforcement agencies to discharge its nondelegable duty to keep its store and parking lot in a reasonably safe and secure condition. The Circuit Court pointed out that another instruction given to the jury stated that business owners are not obligated to hire a security guard or take other precautions against crime unless ordinary police protection is inadequate and the crime was reasonably foreseeable. The court did not go into detail about the nature of a nondelegable duty or how far it extends. It does not appear that either party argued that the police were negligent and the court did not address the potential liability for any negligence on the part of the police.

August 7, 2018

Jeffrey P. Gale, P.A. // Florida’s Confusing Hospital Lien Law in Personal Injury Cases

by Jeffrey P. Gale, P.A.

Personal injury lawyers have their work cut out for themselves. Besides having to deal with basic case issues of fault and damages, they are expected to resolve the liens held by hospitals operating in Miami-Dade County. (Depending on local laws, the principles addressed here may apply in other Florida counties.) As the hospitals do not compensate the lawyers for this bill collection work, it’s a great deal for them. (It sure beats selling the debt to bill collection agencies for pennies on the dollar.)

The lien is the right of a hospital to be reimbursed for its services from the proceeds of a judgment or settlement paid by the third party responsible for causing the patient’s injuries. This scenario arises in the context of personal injury cases where the injured party is compensated by the at-fault party for damages sustained.

Miami-Dade County’s lien law, Section 25C-2, Miami-Dade County Code, reads as follows:

[hospitals] shall be entitled to a lien for all reasonable charges for hospital care, treatment and maintenance of ill or injured persons upon any and all causes of action, suits, claims, counterclaims and demands . . . and upon all judgments, settlements and settlement agreements rendered or entered into by virtue thereof, on account of illness or injuries giving rise to such causes of action, suits, claims, counterclaims, demands, judgment, settlement or settlement agreement and which necessitated or shall have necessitated such hospital care, treatment and maintenance.

Liability insurance companies have learned to be careful with hospital liens. In Palm Springs Hospital, Inc. v. State Farm Mutual Insurance Company, 218 So.793 (Fla. 3rd DCA 1969), the insurance carrier was sued by the hospital for impairment of lien for failing to satisfy the lien from the settlement proceeds. To avoid this dilemma, some carriers include the hospital’s name on settlement and judgment checks. This is what happened in Marin v. Infinity Insurance Company, (Fla. 3rd DCA 2018) … and it resulted in a court battle.

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.

February 5, 2018

Jeffrey P. Gale, P.A. // Authority to Settle Minor’s Personal Injury Case (Florida)

by Jeffrey P. Gale, P.A.

It is not uncommon for minor children to be living with only one of their parents or neither. Since minors do not have the capacity to make various legal decisions, the question often arises as to who, in the above scenarios, does have that authority.

Custody law can be contentious and complicated. While it is beyond the scope of this blog to address the entire subject, the natural starting point is section 744.301, Florida Statutes.

Section 744.301(2) provides that parents, as the natural guardians of their children, have the authority to make legally binding decisions on behalf of their minor children in personal injury cases. However, the authority is not absolute.

When the parents are living together with the children, the decision making is shared jointly. It is a different story when the parents are divorced and living apart. Section 744.301(1) provides that “the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians.” 744.301(1). This makes it sound like the right to make binding decisions is determined solely by the status of “parental responsibility.” Not necessarily.