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people.jpgThe foreseeability of a harmful event is an essential element of every personal injury case. McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992). This includes premises liability cases involving crimes such as rape, assault, and robbery committed by third parties.

Florida courts consider three primary factors in deciding if prior crimes by other criminals make the eventual crime foreseeable:

  • Similarity of the prior crimes
  • Geographical proximity of the prior crimes
  • Temporal proximity of the prior crimes

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doctor.jpgA Judge of Compensation Claims (JCC) recently denied our firm a stipulated carrier-paid attorney’s fee under the so-called medical-only section of Florida Statute 440.34. The judge rejected the stipulation because a claim for Permanent Total Disability (440.15(1)) was pending when we filed a claim for psychiatric care. The judge misread the statute.

440.34(3)(a) provides as follows:

(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees. A claimant is responsible for the payment of her or his own attorney’s fees, except that a claimant is entitled to recover an attorney’s fee in an amount equal to the amount provided for in subsection (1) or subsection (7) from a carrier or employer:

(a) Against whom she or he successfully asserts a petition for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident.

The judge relied on the words, “has not filed,” without considering the qualifying language, “at such time.”
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car-insurance-policy.jpgRisk and exposure drive insurance premiums. The greater the risk and exposure, the higher the premium. Period.

In the vernacular of this blog, risk and exposure have different meanings. Risk represents the chance of something happening, while exposure represents the consequences after that something happens. Premiums are set based on both: A high risk driver pays more than a low risk driver, and the higher the coverage limits, the higher the premium.
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cube.jpgClaiming that the plaintiff’s injuries are preexisting is a favorite defense tactic. Less responsibility for them. Some injuries, like herniated intervertebral discs and torn or frayed shoulder tendons, are extremely susceptible to this tactic. The defense argument is that the conditions are the result of natural aging and/or prior accidents.

Whenever possible, we like to counter this tactic by presenting prior medical records that are silent with regard to complaints similar to those for which we are seeking compensation. While this strategy may not eliminate entirely the preexisting condition argument, at the very least it shows that any such preexisting condition was aggravated in the accident. Florida law authorizes compensation for aggravation. See C. F. Hamblen, Inc. v. Owens, 172 So. 694 (Fla. 1937) and Florida Standard Jury Instruction 501.5a.

One of our recent cases demonstrates the point. Between September, 2013 and March, 2014, our client was involved in three separate motor vehicle accidents. While the third was the most serious, she sought medical treatment from the same board certified orthopedist for neck and back pain in all three. The doctor ordered cervical and lumbar MRIs to assist in diagnosing her injuries.
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pinoccio.jpgThe Florida Rules of Civil Procedure outline the various ways in which parties to a lawsuit can discover information before trial. The most popular discovery vehicles are depositions, interrogatories, and requests for admissions. While these vehicles often help parties prove their case, they can serve another important function of impeaching inconsistent testimony.

Actual Example
We are three weeks before the start of trial in a premises liability case against a condominium association and a general contractor. Our client, a 78 year old woman, sustained serious injuries, including a broken humerus, when she fell into a hole at night in a wood deck under repair. The deck ran behind a line of townhomes. Our client was a guest at a party at one of the townhomes when she decided to take a stroll on the deck. The portion of the deck where she started out and for some fifty feet to the west had been repaired months before. The accident happened where the finished deck met the deck under repair. The hole into which she fell was created by the general contractor who had removed the old boards with the intent of replacing them.
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Since at least 2002, when Jeb Bush and a super-majority of Republicans passed legislation eliminating important workers’ rights, Florida’s workers’ compensation system has been unfair and unbalanced. One circuit court judge has declared it unconstitutional — Florida’s Workers’ Compensation System Unconstitutional, So Says 11th Circuit Court Judge Jorge Cueto.

The time is approaching when the Florida Supreme Court may agree with Judge Cueto.
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silence1.jpgIn Miranda v. Arizona, the Supreme Court of the United States established a formal warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial situation) before they are interrogated. The court ruled that the person in custody must be informed that he/she has the right to remain silent, and that anything the person says can be used against the person in a court of law. What developed from the ruling is the well-known “Miranda Warning”:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Even though the Miranda Warning only applies to criminal suspects, potential personal injury civil litigants should consider the wisdom of remaining silent until receiving the advice of counsel. The alternative is to risk saying something that will harm the civil case.

Fault and damages are key components of every personal injury case. Limiting both is the primary objective of every liability insurance company. Adjusters, investigators, and lawyers are employed to this end from the very beginning of a reported claim. They will quickly reach out for information from witnesses and victims for the purpose of obtaining incriminating and exculpatory evidence to limit their exposure. What a victim says to these people can be used against him/her in and out of court.

(Read this blog, Limited Application of Florida’s Motor Vehicle Accident/Crash Report Privilege, for the confidentiality of statements given to motor vehicle crash investigators.)
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Once again Pam Bondi, Florida’s Teabagging Attorney General, has decided to waste the taxpayer’s money on another anti-decency crusade. Consistent with her opposition to Gay marriage, government in the Sunshine, the Affordable Care Act, and medical marijuana, the twice-divorced Attorney General has chosen to appeal the August 13, 2014 ruling of 11th Circuit Court Judge Jorge Cueto declaring Florida’s workers’ compensation system in violation of both the Florida and U.S. constitutions as no longer providing a “reasonable alternative” to the tort system for workers seeking recompense for job related injuries. See this blog: Florida’s Workers’ Compensation System Unconstitutional, So Says 11th Circuit Court Judge Jorge Cueto.
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hospital.jpgMost people are surprised to learn that most hospital emergency room physicians are not hospital employees. Instead, they are independent contractors.

“An independent contractor is a natural person, business, or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when required, during which time he or she may be subject to law of agency. Independent contractors are usually paid on a freelance basis. Contractors often work through a limited company or franchise, which they themselves own, or may work through an umbrella company.”

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joint & several.jpgBy amending §768.81 Florida Statues, the Florida Legislature eliminated, effective 2006, the application of joint and several liability in most personal injury cases. Under the joint and several doctrine, in cases involving multiple defendants each negligent defendant was wholly responsible financially for the negligence of every other defendant. This concept especially benefited plaintiffs where one or more negligent defendant did not have the financial means to satisfy its share of the damages awarded, while one or more other defendants had the means to satisfy the entire award.

The doctrine was replaced by the comparative fault doctrine. Under this doctrine, each defendant’s share of liability was limited to its allocated percentage of fault. For example, if each of three defendants was found one-third at fault, the most any one of the three would be responsible for paying is one-third of the total damage award. If the total damage award was $1,000,000, the most any one of the three defendants would have to pay is $333,333.33. If the others could not afford to pay their shares, the injured Plaintiff would simply not be fully compensated. In comparison, under the joint and several doctrine each one of the three would be liable for the full measure of damages. If, for example, one of the defendants was the Coca-Cola company and the other two were poor deadbeats without adequate insurance coverage, Coca-Cola would be on the hook for the full amount. Coca-Cola would have a right to go after the other defendants to recoup some of the money it paid.

By scuttling joint and several liability, the Republican Legislature, with the full backing of then Governor Jeb Bush, shifted the burden of loss from insurance companies and large corporations onto injured victims.

While joint and several liability does not apply in most post-April, 2006 personal injury cases, it remains a viable legal doctrine in cases where an independent contractor has breached a non-delegable duty. The most common scenario involves a property owner who hires one or more independent contractors to perform maintenance and security in and around a property, like a shopping mall. If a person rightfully on the property is injured by the negligent performance by the independent contractor, the independent contractor and the property owner are jointly and severally liable. This has long been the law in Florida:

“The law imposes on hotels, apartments, innkeepers, etc., the duty to keep their buildings, premises and appliances in a condition reasonably safe for the use of their guests, or at least those parts of the buildings and premises to which the guest are invited and may reasonably be expected to use. The duty of maintaining safe premises cannot be delegated to another.“

Goldin v. Lipkind, 49 So.2d 539, 541 (Fla. 1950) (emphasis added). Moreover, this is a well-established principle of law recognized throughout the country. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 511-12 (5th ed. 1984).
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Email: jgale@jeffgalelaw.com

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