Florida Injury Attorney Blawg

January 29, 2020

Jeffrey P. Gale, P.A. // Shifting Legal Defense Theories in a Workers’ Compensation Case and Trump’s Impeachment Trial

Trump’s shifting legal defense reminds me of one of our firm’s more interesting past cases.

We represented a lady who fell and suffered a badly broken bone in her leg because of a dangerous condition on her employer’s property. At the time of the accident she had multiple sclerosis, but it was in remission, helped along by Cytoxan therapy. She had been leading a full life, including full time employment. Sadly, following the accident the MS reared it’s ugly head like never before. She became wheelchair bound and required 24/7 attendant care.

We argued that the broken bone caused the MS to become active, that, in other words, it aggravated the MS. Defense counsel argued that trauma cannot aggravate MS. She hired the head of the Dept. of Neurology of a prominent Florida hospital as her expert. As it turned out, this doctor was a pipe smoking blowhard who pretended to be an authority but really knew nothing about the subject at hand. (During a break in his deposition, I walked into the men’s restroom and actually caught him standing at the urinal, pipe in mouth, desperately reading an article on the subject. We made eye contact and I turned around and walked out.) He was exposed and shamed. In contrast, our expert, Dr. William Sheramata (deceased), who happened to be the client’s treating doctor, was an internationally renowned MS expert. He was also a prince of a gentleman and brilliant.

December 26, 2019

Jeffrey P. Gale, P.A. // Don’t Be a JUUL Fool!

by Jeffrey P. Gale, P.A.

First, harsh reality: Like traditional cigarettes, JUUL contains nicotine. Nicotine causes addiction by stimulating the release of neurotransmitter chemicals such as dopamine and serotonin which activate pleasure hormones in the brain. The addictive cycle results from the compulsion of users to chase the pleasure high. Combined with a smooth vapor, accomplished through an infusion of pH-softening benzoic acid, and a false understanding of the product’s toxicity, JUUL consumers frequently eclipse cigarette smokers in nicotine consumption. (One JUUL “pod,” the nicotine cartridge inserted into a smoking device and heated, delivers around 200 puffs, about as much nicotine as 35 cigarettes, more than a pack-and-a-half.) Vaping is linked to:

December 25, 2019

Jeffrey P. Gale, P.A. // Uninsured Motorist (UM)/Underinsured Motorist (UIM) Insurance — Don’t Leave Home Without It

by Jeffrey P. Gale, P.A.

We have represented many people who have benefited from having UM/UIM insurance. We have represented many more people who have lost out by not maintaining the coverage.

UM covers losses sustained by the insured, passengers, and family members through the fault of a party who fails to maintain Bodily Injury (BI) insurance. Hit-and-run and “phantom vehicle” scenarios fall under UM coverage. UIM covers losses that exceed the limits of coverage available under the at-fault party’s BI insurance.

Florida is one of only a handful of states that does not require owners of registered motor vehicle to maintain Bodily Injury (BI) insurance, which is the type of third party coverage that compensates individuals damaged by an insured’s negligent operation of a covered motor vehicle. Since it is not mandatory and costs the policyholder more to maintain, a large percentage of motorists do not purchase the coverage. Instead, these motorists limit their coverage to the minimum mandatory of Personal Injury Protection (PIP) and Property Damage — Liability. (Property Damage — Liability operates like BI, but for personal property. From this curious arrangement, one could conclude that the Florida Legislature, who creates statutory law, places more value on personal property than on bodily injuries.)

December 11, 2019

Jeffrey P. Gale, P.A. // Liability of Bailor for Personal Injury Damages

by Jeffrey P. Gale, P.A.

We are representing a gentleman who was struck by a pickup truck just before sunrise while walking to a bus stop on his way to work. The driver turned quickly without warning from a main road onto a small side street while our client was halfway across after looking both ways before proceeding. Our client spent two weeks in the hospital in intensive care. The driver of the vehicle was charged with failing to yield the right of way.

We learned that the vehicle was purchased by an administratively dissolved corporation and loaned by the sole officer and shareholder of that defunct corporation to the driver for personal use. While the dissolved corporation did not maintain personal injury liability insurance, our investigation determined that the officer/sole shareholder (O/SS) owned unencumbered real estate worth in excess of $1,000,000, almost enough to cover our client’s medical expenses, lost income, and personal injuries. (We made this asset determination by searching the public records and by obtaining an asset affidavit from the O/SS. The driver of the vehicle is uninsured and does not have assets of any meaningful value.)

Through experience and legal research, we have concluded, based on two intertwining legal theories, that the O/SS is likely personally liable for our client’s significant damages.

Section 607.0204, Florida Statutes (2019), part of the Business Corporation Act, provides as follows:

Liability for preincorporation transactions.—All persons purporting to act as or on behalf of a corporation, knowing that there was no incorporation under this chapter, are jointly and severally liable for all liabilities created while so acting.

For us to be able to impose personal liability on the O/SS under this statute, we must show that he knew or should have known that the corporation was dissolved when he acted. Presley v. Ponce Plaza Associates, 723 So. 2d 328 (Fla. 3rd DCA 1998) and Harry Rich Corp. v. Feinberg, 518 So.2d 377 (Fla. 3d DCA 1987). Given that the gentleman was the sole officer and shareholder of the corporation, which had been administratively dissolved years before the vehicle was purchased, we feel confident in being able to make that proof.

December 9, 2019

Jeffrey P. Gale, P.A. // Florida School Board’s Do Not Have A Non-Delegable Duty for Safe Transportation of Public School Students

by Jeffrey P. Gale, P.A.

Florida courts have determined that some responsibilities are so important to the community that the principal entity should not be allowed to transfer it to a third party. This defining characteristic of whether a nondelegable duty exists has been described as “rather ambiguous.” Dixon v. Whitfield, 654 So. 2d 1230, 1232 (Fla. 1st DCA 1995); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 512 (5th ed. 1984). The issue of whether a nondelegable duty exists is a question of law. McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992).

The standard has been applied in some unexpected ways.

The Dixon case dealt with a school board contracting with an outside entity to transport public school students and a lawsuit brought on behalf of a student who was struck and killed when he tried to cross a street after getting off a public school bus. 654 So. 2d at 1231. In holding against the parents, the appellate court set forth in part:

November 24, 2019

Jeffrey P. Gale, P.A. // Contrary to Popular Belief, Florida Traffic Crash Reports are not Privileged

by Jeffrey P. Gale, P.A.

Every driver of an automobile in Florida who is involved in a motor vehicle accident is required to report the event to law enforcement. See § 316.062, Fla. Stat. (2019). From 1971 to 1982, the version of the statute designed to promote this public policy, § 316.066(4), Fla. Stat. (1971), provided that accident reports were confidential and prohibited its disclosure. In 1982, the legislature added a sentence providing an exception to “the confidential privilege afforded by this subsection” for breath, urine, and blood tests. Ch. 82-155, § 6, Laws of Fla. (emphasis added). Based on this language, courts interpreted the statute as creating a true privilege. See Brackin v. Boles, 452 So. 2d 540, 544 (Fla. 1984); Pastori v. State, 456 So. 2d 1212, 1213 (Fla. 2nd DCA 1984); Nationwide, Ins. v. Monroe, 276 So. 2d 547, 548 n.2 (Fla. 2nd DCA 1973). And it became known as the “accident report privilege.” See, e.g., Hammond v. Jim Hinton Oil Co., 530 So. 2d 995, 997 (Fla. 1st DCA 1988); Johnson v. Fla. Farm Bureau Cas. Ins., 542 So. 2d 367, 368 (Fla. 4th DCA 1988); Hill v. Allstate Ins., 404 So. 2d 156, 156 (Fla. 3d DCA 1981).

In 1989 the statute was changed by deleting (1) the term “privilege,” (2) the language making the information confidential, and (3) the language prohibiting its disclosure outside of the Department. See ch. 89-271, § 2, Laws of Fla. “By deleting this language, the legislature clearly intended to change the statute from a true privilege to a law of admissibility. Indeed, the legislative history provides that the statute was amended “to make it clear that statements made to an officer by a person involved in an accident shall not be admissible in court but shall otherwise be public record.” Fla. H.R. Comm. on Govtl. Ops., PCB GO 89-4 (1989) Staff Analysis 4 (Mar. 31, 1989).” Anderson v. Mitchell, 219 WL 1296458 (Fla. 2nd DCA 2019).

The 2019 version of the statute remains true to the purposes of the 1989 version. In pertinent part, it reads as follows:

(4) Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal.

Section 316.066(4), Florida Statutes (2019).

Interestingly, even after the substantial changes made in 1989, courts continued to refer to the statute as creating an “accident report privilege.” See, e.g., Perez v. State, 630 So. 2d 1231, 1232 (Fla. 2d DCA 1994); Wetherington v. State, 135 So. 3d 584, 585 (Fla. 1st DCA 2014); Alexander v. Penske Logistics, Inc., 867 So. 2d 418, 420 (Fla. 3d DCA 2003). Some courts have also used language describing the post-1989 version of section 316.066(4) as making the statements both inadmissible and privileged. See, e.g., Perez, 630 So. 2d at 1232; Nelson v. State Dep’t of Highway Safety & Motor Vehicles, 757 So. 2d 1264, 1265 (Fla. 3d DCA 2000).

November 23, 2019

Jeffrey P. Gale, P.A. // Workers’ Compensation Employers/Carriers May Sue to Recover Personal Injury Damages

by Jeffrey P. Gale, P.A.

Most workers’ compensation and personal injury lawyers have had the occasion to deal with workers’ compensation liens. The lien, which is established by section 440.39, Florida Statutes, becomes an issue when the injured employee who has received workers’ compensation benefits also receives compensation from a third party tortfeasor in connection with the same accident. (While employers have workers’ compensation immunity providing protection against civil liability, many work-related accidents are caused by parties that don’t have the immunity.) The instructions for handling the lien are set forth in 440.39(3)(a) and Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990). (Read this blog for further explanation: Florida Workers’ Compensation Liens — 440.39, the Manfredo Formula, etc.)

Few lawyers realize that workers’ compensation employers and carriers (E/C) may bring a lawsuit against the third party tortfeasor in the claimant’s name in an effort to recoup their expenditures. This is authorized by 440.39(4)(a). The right is limited to a one year period, from the period beginning one year after the cause of action has accrued to two years following accrual of the action, and may only be brought if the workers’ compensation claimant fails to bring the suit within one year of the cause of action. If E/C fails to bring suit during this one year time period, it loses the right to do so. 440.39(4)(b).

Regardless of who brings the lawsuit, the rights of both the E/C and the claimant must be taken into account. E/C cannot disregard the claimant’s right to a say in the third party damages and the claimant cannot ignore E/C’s 440.39 lien right.

October 27, 2019

Jeffrey P. Gale, P.A. // Procedure for Resolving Medicaid Liens in Florida Personal Injury Cases

by Jeffrey P. Gale, P.A.

In the context of personal injury cases, a lien is the right of a non-party to be reimbursed from the proceeds of a case for payments made on behalf of the individual for whom the proceeds are intended. Such liens include for expenditures related to property damage, workers’ compensation benefits, health insurance, Medicare and Medicaid.

Clients and their lawyers who ignore liens do so at their peril. This blog focuses on the Medicaid lien.

Title XIX of the Social Security Act authorizes payments for medical assistance and related assistance to qualifying individuals. Florida’s Agency for Health Care Administration (AHCA) is designated as the single state agency authorized to make the payments. § 409.902(1), Florida Statutes. § 409.10, known as the as the “Medicaid Third-Party Liability Act,” creates the Medicaid lien. Subsection (1) provides:

It is the intent of the Legislature that Medicaid be the payor of last resort for medically necessary goods and services furnished to Medicaid recipients. All other sources of payment for medical care are primary to medical assistance provided by Medicaid. If benefits of a liable third party are discovered or become available after medical assistance has been provided by Medicaid, it is the intent of the Legislature that Medicaid be repaid in full and prior to any other person, program, or entity. Medicaid is to be repaid in full from, and to the extent of, any third-party benefits, regardless of whether a recipient is made whole or other creditors paid. Principles of common law and equity as to assignment, lien, and subrogation are abrogated to the extent necessary to ensure full recovery by Medicaid from third-party resources. It is intended that if the resources of a liable third party become available at any time, the public treasury should not bear the burden of medical assistance to the extent of such resources.

In Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006), the United States Supreme Court ruled that the federal Medicaid Act’s anti-lien provision preempts a State’s effort to take any portion of a Medicaid recipient’s tort judgment or settlement not “designated as payments for medical care.” Id. at 284.

The language of 409.902(1), which speaks in terms of full recovery, and the Ahlborn opinion appear to be at odds. Because the United States Supreme Court is the final word on this subject matter, which involves the application of federal law — Title XIX of the Social Security Act — the Florida Legislature created an avenue for a Medicaid recipient to file a petition under chapter 120, Florida Statutes, with the Division of Administrative Hearings (“DOAH”) to prove “that Medicaid provided a lesser amount of medical assistance than that asserted by” the Agency for Health Care Administration. § 409.910(17)(b), Fla. Stat.

Eady v. State of Florida, Agency for Health Care Administration (Fla. 1st DCA, Sept. 12, 2019) should be considered the road map for handling Medicaid lien administrative hearings in Florida. Brandon Eady sustained catastrophic injuries in a motor vehicle crash. Florida’s Medicaid program paid $177,747.91 for his medical care. Eady later entered into confidential settlements with various at-fault parties totaling $1,000,000. He filed a petition under § 409.910(17)(b), Fla. Stat. to reduce the Medicaid lien.

October 8, 2019

Jeffrey P. Gale, P.A. // Obtaining Permanent Total Disability Benefits Under the Longshore & Harbor Workers’ Compensation Act (LHWCA)

by Jeffrey P. Gale, P.A.

“Disability” under the Longshore and Harbor Workers’ Compensation Act (LHWCA) means “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment * * *.” § 902(10).

The big disability compensation prize under the The Act is Permanent Total Disability. The benefit is described in Section 908(a) of the Act as follows:

In case of total disability adjudged to be permanent 66 2/3 per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability.

September 29, 2019

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

by Jeffrey P. Gale, P.A.

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).

FLORIDA INJURY ATTORNEY BLAWG