Florida Injury Attorney Blawg

February 3, 2017

Jeffrey P. Gale, P.A. // Florida Uber Driver Declared Independent Contractor

In a case with far-reaching implications, Florida’s Third District Court of Appeal ruled on February 1, 2017 that an Uber driver was not an employee of Uber. In McGillis v. Department of Economic Opportunity, the court decided that, based on the contract between the driver and Uber and the nature of their relationship, the driver was an independent contractor for the purpose of reemployment assistance under Chapter 443 Florida Statutes (2015).

While the case involves a relatively minor claim for unemployment compensation, the court’s ruling, with its in-depth analysis of Florida’s independent contractor law, will have consequences in other types of Florida cases.

In civilized society a person injured through the negligence of another party should have the right to be compensated for their losses by that party. However, what is good in theory (i.e., the right to pursue a recovery) does not always pan out in reality. Frequently, the at-fault party is not adequately insured, if insured at all, or does not have the personal means to cover the losses. It is the personal injury lawyer’s job to make every effort to find sources of payment.

January 29, 2017

Jeffrey P. Gale, P.A. // Overcoming Florida’s Work Product Privilege to Obtain Photographs

by Jeffrey P. Gale, P.A.

With fault being a fundamental element in all but strict liability personal injury cases, it is often critically important for both sides of a dispute to be able to view certain photographs taken after an accident to help piece together the how and why of its occurrence. Common examples include accident-scene images showing the resting place of vehicles involved in a multi-vehicle collision or a condition alleged to have caused a fall.

Very often only one side has the photographs and sometimes the party refuses to share them with the other side, citing work product privilege as the basis.

January 16, 2017

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Law — Carrier Pays to Discover

by Jeffrey P. Gale, P.A.

The parties to a Florida workers’ compensation case have the unique right to conduct discovery depositions even in the absence of a pending claim, which is brought by filing a Petition for Benefits.

The right is granted under Florida Statute 440.30 and is limited to cases where the Claimant is represented by an attorney. (This means that the Employer and Carrier, known collectively as “E/C”, cannot employ the device against an unrepresented Claimant.) Significantly, “[I]f no claim has been filed, then the carrier or employer taking the deposition shall pay the claimant’s attorney a reasonable attorney’s fee for attending said deposition.”

Because both parties may conference separately with authorized medical providers — Section 440.13(4)(c) Florida Statutes grants E/C the right — it is rare for a medical provider to be deposed in the absence of a pending Petition for Benefits. From E/C’s perspective, it can learn what it needs by talking to the doctor privately without having to pay the Claimant’s attorney to attend a deposition.

December 17, 2016

Jeffrey P. Gale, P.A. // The Truth About the McDonald’s Hot Coffee Case (or Exposing the Myth About “Frivolous Lawsuits”)

by Jeffrey P. Gale, P.A.

“Big Business,” for want of a better term, goes to great lengths to misinform the public about many different subjects, all for the purpose of advancing one cause: MAXIMIZING PROFITS!

One of its most popular and successful themes is the notion that the country is suffering under an onslaught of “frivolous lawsuits.” By convincing the public that most lawsuits are baseless and that baseless lawsuits cause the price of products and services like insurance and health care to spiral upwards, Big Business has successfully polluted the minds of potential jurors and gotten politicians to enact legislation curbing access to courtrooms and imposing arbitrary caps on damages in personal injury cases. The end result is that “We the People” have been bamboozled into giving up the right to seek redress for legitimate grievances.

December 1, 2016

Jeffrey P. Gale, P.A. // Masters of Misinformation Play Public as Saps

by Jeffrey P. Gale, P.A.

This article — Frightened by Donald Trump? You don’t know the half of it — published in theguardian.com, paints a dire picture of what awaits the human race under a Trump Presidency. Civil trial lawyers are all too familiar with the insidious threat discussed in the article.

For more than 30 years, trial lawyers have been the target of these Masters of Misinformation. The Masters have systematically misinformed the public into believing that trial lawyers are the reason for the rising cost of insurance and medical care. One of the bellwether terms used in the misinformation campaign is “frivolous lawsuits.”

November 25, 2016

Jeffrey P. Gale, P.A. // Florida Court Voids Workers’ Compensation Insurance Rate Increase

by Jeffrey P. Gale, P.A.

Following the Florida Supreme Court’s April, 2016 decision in Castellanos v. Next Door Company, Florida’s workers’ compensation insurance industry quickly mobilized in an effort to obtain approval of a rate increase from the Florida Office of Insurance Regulation. It claimed that a substantial premium rate hike was needed to handle the expected increase in claim costs — in particular, fees paid to claimants’ attorneys — resulting from the decision.

Insurance industry representatives hired National Council on Compensation Insurance (NCCI), a private company authorized to request rate changes, to present its case to the Florida Office of Insurance Regulation (OIR), the regulatory agency responsible for setting insurance rates. OIR ultimately approved a 14.5% rate hike. Problem is, opponents were prevented from fully engaging in the regulatory process.

November 21, 2016

Jeffrey P. Gale, P.A. // Beware of Republican Shell Game on Pre-Existing Conditions

by Jeffrey P. Gale, P.A.

In the upcoming healthcare debate, watch carefully for a Republican shell game. In his 60 Minutes interview, Trump professed support for prohibiting insurance carriers from denying coverage for preexisting medical conditions. Left unsaid is whether carriers will be allowed to charge higher premiums based on preexisting conditions, a practice banned under the Affordable Care Act (a/k/a “Obamacare”).

With “Profits Over People” representing a fundamental Republican theological belief, it seems likely that their healthcare plan will allow price gouging on this issue just like before the ACA, essentially making illusory the promise of coverage for preexisting conditions.

November 20, 2016

Jeffrey P. Gale, P.A. // The “Big Stick” in Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

U.S. President Theodore Roosevelt famously said, “Speak softly and carry a big stick.” The meaning of the proverb is that, if necessary, blunt force will be used to compel compliance with reasonable behavior. It works.

In Castellanos v. Next Door Company, the Florida Supreme Court gave injured workers a big stick. It is Section 440.34(3) Florida Statutes.

The Castellanos version of 440.34(3) gives employers and their workers’ compensation insurance companies thirty days (30), a safe harbor period, to provide requested benefits without risking having to pay the injured worker’s attorney’s fees. The risk can be sizeable. Hourly attorney fee rates range from $200 to $400 and complex cases can involve hundreds of hours of legal work.

This threat, the big stick, is usually effective in getting carriers to furnish needed benefits without a fight. Since the value of benefits at stake is often greater than the exposure for attorney’s fees, it makes practical sense for carriers to be cooperative. In the days when injured workers did not have the big stick, it was the policy and procedure of most insurance companies to summarily deny benefits since the adverse consequences of being proven wrong were de minimis.

November 20, 2016

Jeffrey P. Gale, P.A. // Post-Election Popular Vote vs. Electoral College Griping Off Base

by Jeffrey P. Gale, P.A.

Complaining now about the 2016 presidential election outcome based on the popular vote vs the Electoral College results is nonsense. It’s like a football team that was outscored arguing that it should be declared the winner because it controlled the clock and gained more yards than the other team. Them ain’t the rules.

For example, just this past Saturday my Florida Gators beat the LSU Tigers by the score of 16-10, even though LSU won the time of possession and yards gained statistics. I’ll take the W over the statistical victory.

November 20, 2016

Jeffrey P. Gale, P.A. // Keeping Trump’s Excesses in Check

by Jeffrey P. Gale, P.A.

We are all in deep trouble with Trump, right-wingers included, but Congress, especially Republicans, can limit the damage by insisting on decency, honesty and fair-dealing from his administration. This will require principle and backbone, two characteristics in short supply in Republican leaders like Mitch McConnell and Paul Ryan.

It took resolute and honorable Republicans to bring down Richard Nixon. That was a long time ago, during a period when civil discourse and cooperation between the parties was at a much higher level than it is today.

What’s especially frightening is that compared to Trump, Nixon was a decent fellow.

FLORIDA INJURY ATTORNEY BLAWG