Florida Injury Attorney Blawg

August 27, 2015

Jeffrey P. Gale, P.A. // Avoid Limiting Tavern Owner Liability to Dram Shop Law

Floridians, like residents in every state, are acutely aware “of the terrible toll taken, both in personal injuries and property damage, by drivers who mix alcohol and gasoline,” Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, 205 (1983). While many of the culprits receive their intoxicating fuel from bars and restaurants, the legal standard for holding establishments liable for vehicle crashes caused by their patrons is exceedingly high. §768.125 Florida Statutes, Florida’s Dram Shop statute, provides the standard:

Liability for injury or damage resulting from intoxication.—A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

July 19, 2015

Jeffrey P. Gale, P.A. // Florida Statute 440.34 Workers’ Compensation Fees

by Jeffrey P. Gale, P.A.

The first sentence of §440.34(1) Florida Statutes advises that every attorney’s fee received by a Florida workers’ compensation claimant’s attorney must be approved by a judge of compensation claims (JCC). This is the case whether the fee is paid by the claimant, an employer, or a workers’ compensation insurance company. A violation of the law is a crime. Florida Statute 440.34 outlines the main types and amounts of fees available to claimants attorneys. (Statutes 440.105, 440.32(1)&(2), and 57.105 describe fees available as sanctions.) While fees in personal injury cases typically range from 33-1/3%-40%, the allowed percentage in workers’ compensation case is significantly less. Here is the basic formula:

Any attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years.

§440.34(1) Florida Statutes. Continue reading

July 14, 2015

Jeffrey P. Gale, P.A. // Medicare & Medicaid Subrogation Rights on Post-Personal Injury Settlement Payments

by Jeffrey P. Gale, P.A.

Collateral sources, such as health insurance, workers’ compensation, Med-Pay, Medicare, and Medicaid, which pay the medical expenses of an injured party arising from a third party’s negligence acquire a subrogation or reimbursement right in payments made to the injured party by the third party. (In Florida, Personal Injury Protection (PIP) insurance is the main exception to the rule. It does not acquire subrogation rights.) Failing to honor the right can have serious consequences against both the injured party and his or her attorney.

There is little debate that payments made before a case is settled or judgment is entered are subject to the lien. Less certain is whether payments made post-settlement or -judgment for services incurred pre-settlement or -judgment are subject to the lien.

July 3, 2015

Jeffrey P. Gale, P.A. // Apportioning Settlement Proceeds in Florida Wrongful Death Cases

by Jeffrey P. Gale, P.A.

Not infrequently, the amount of money available following a wrongful death accident to fully satisfy outstanding debts (e.g., medical bills, funeral expenses, credit cards) and compensate survivors for their loss is inadequate. Where the settlement [in the wrongful death claim] is less than the full value of the claim, the personal representative is charged with employing a reasonable and equitable method of apportioning the distribution of settlement proceeds among the survivors and the estate. See In re Estate of Wiggins, 720 So. 2d 523 (Fla. 4th DCA 1999).

July 2, 2015

Jeffrey P. Gale, P.A. // Maintain Bodily Injury Insurance or Face Suspension of Driving Privileges and Vehicle Registrations

by Jeffrey P. Gale, P.A.

Florida’s motor vehicle insurance laws can be confusing, even to lawyers and judges. It is little wonder, then, that lay people often face unfortunate predicaments because of uninformed insurance decisions. One of the most common predicaments is the suspension of driving privileges and vehicle registrations following a motor vehicle crash.

Vehicle insurance is a significant expense for most people. Every different type of coverage comes at the cost of a premium payment. Only two types of coverage are mandatory in Florida to register a motor vehicle: PIP and property damage liability. Because of cost concerns and a lack of knowledge, many Florida vehicle owners limit themselves to the basic package.

June 28, 2015

Jeffrey P. Gale, P.A. // Insurance Coverage for Bodily Injuries Sustained by “Uninsured” Motorcyclist

by Jeffrey P. Gale, P.A.

Our firm was recently retained by the grieving mother of a young adult killed in a motorcycle accident. Because her son was not married or the father of a child, she and the boy’s father can bring a civil claim for mental pain and suffering and funeral expenses against any party whose negligent conduct caused the accident. See §768.21(4) & (5) Florida Statutes.

It is too early in the investigation for us to know what happened. Law enforcement has not filed a Florida Crash Report or homicide report and the investigating officers are not talking. We do not know the cause of the accident or whether others were involved.

June 19, 2015

Jeffrey P. Gale, P.A. // PIP “Payable” and the Florida Car Crash Offset

by Jeffrey P. Gale, P.A.

Following a car crash, Florida car insurance companies are required to pay 80% of their own insureds’ medical expenses and 60% of their lost wages until coverage is exhausted at a combined $10,000. The requirement applies regardless of who caused the accident.

In 1972, the Florida Legislature crafted a law, known as the “Florida Motor Vehicle No-Fault Law,” for application in motor vehicle accident cases. Every owner or registrant of a Florida motor vehicle — there are exceptions — became obligated to maintain Personal Injury Protection (PIP), an insurance coverage designed to pay medical expenses and reimburse lost wages up to $10,000 (less deductibles) without regard to fault. The purpose of the law was to provide important benefits quickly without having to fight over fault — similar to workers’ compensation. PIP remains the law in Florida.

June 13, 2015

Jeffrey P. Gale, P.A. // Florida Supreme Court Solidifies Negligent Security Law

by Jeffrey P. Gale, P.A.

With the exception of strict liability cases, the burden is always on the plaintiff in personal injury cases to prove that the “[defendant’s] negligence probably caused the plaintiff’s injury,” with “probably” being the more likely than not/greater weight of the evidence standard. Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984); see, also, Standard Jury Instruction – Civil Cases 401.3.

The standard was recently put to the test in Sanders v. Erp Operating Limited Partnership, 157 So.3d 273 (Fla. 2015).

June 11, 2015

Jeffrey P. Gale, P.A. // Pharmacy/Pharmacist Duty of Care in Florida

by Jeffrey P. Gale, P.A.

A pharmacy owes a customer a duty of reasonable care. Reasonable care is the degree of care that an ordinarily prudent pharmacist would exercise under the same or similar circumstances. Marjorie A. Shields, Annotation, Exemplary or Punitive Damages for Pharmacist’s Wrongful Conduct in Preparing or Dispensing Medical Prescription—Cases Not Under Consumer Product Safety Act, 109 A.L.R.5th 397, § 2 (2003); see Pittman v. Upjohn Co., 890 S.W.2d 425, 434 (Tenn. 1994) (stating pharmacists have duty to exercise standard of care required of pharmacy profession in same or similar communities); Schaerrer v. Stewart’s Plaza Pharmacy, Inc., 79 P.3d 922, 933 (Utah 2003) (reiterating that pharmacist has generally recognized duty to possess and exercise reasonable degree of skill, care, and knowledge that would be exercised by reasonably prudent pharmacist in same situation).

May 25, 2015

Jeffrey P. Gale, P.A. // “Independent Contractors” Not Independent Contractors Under Federal Motor Carrier Safety Act (FMCSA)

by Jeffrey P. Gale, P.A.

Under common law, principals are generally not liable for the negligent acts of independent contractors. Interstate shipping companies took advantage of this standard to avoid liability for accidents caused by the owners of rigs who contracted to transport their goods. The practice allowed carriers to keep from having to purchase liability insurance. Given the volume of interstate traffic and the risk of catastrophic injury resulting from big rig crashes, the premium savings were tremendous.
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FLORIDA INJURY ATTORNEY BLAWG