by

street-fight-379259-m.jpgIn Bellevue v. Frenchy’s South Beach Cafe, Inc., So.3d , 38 FLW D2537 (Fla. 2nd DCA 12-4-2013), the 2nd DCA held that the trial judge was wrong in keeping evidence of the following prior incidents, some of which dated back four-and-a-half years before the subject incident, from the jury’s consideration in a barroom brawl case involving serious injuries:

  1. the night cook being stabbed in front of the restaurant after he got off work;
  2. multiple instances of patrons being kicked out of the bar for harassing employees, being vulgar, being rude, threatening employees, or being so drunk they fell off of a bar stool;
  3. patrons being kicked out for fighting;
  4. patrons drunk and fighting on the deck;
  5. a car being broken into in the parking lot;
  6. a minor in possession of alcohol who was armed with a knife out front;
  7. a near-fight between two patrons and a waiter;
  8. multiple instances of having to stop serving alcohol to patrons because they were “out of control”;
  9. multiple instances of drunk patrons being loud and vulgar or threatening; and
  10. the police having to be called because two patrons were about to fight.

In Florida premises liability cases, the plaintiff bears the initial burden of presenting competent and substantial evidence that the incident was reasonably foreseeable and the defendant failed to take reasonable measures to prevent it. The plaintiff in Bellevue tried to meet this burden by introducing evidence of sixty prior events, including the above listed. The court ruled that only those incidents “involving damage to persons or property” and “starting [on], ending [on], or involving the premises” would be admitted. As a result, only twelve of the sixty incidents were admitted.
Continue reading

by

crushed vehicle.jpgMany people, including some personal injury lawyers, believe that UM insurance always provides coverage when the insured is not at fault and there is no other insurance to cover the losses. This is wrong.

When the driver of an uninsured or underinsured (UIM) vehicle causes an accident, UM/UIM should kick in to compensate for losses such as wage loss, medical expenses, and pain and suffering. This is prescribed by Section 627.727(1) Florida Statutes, which provides, in pertinent part, as follows:

No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. (Italics provided)

Crashes without the wrongdoing of another driver do occur. Our office was recently retained by a woman who struck a tree after swerving her car to avoid hitting a dog that had suddenly entered the roadway. She sustained severe whiplash and a blow to the head which caused her to lose consciousness. She was rushed to the hospital by ambulance and admitted for testing and overnight observation. Her car was totaled. The accident was not her fault.
Continue reading

by

truck2.jpgInsurance companies operating in Florida are under a legal duty to adjust claims in good faith to prevent their insureds from being subject to excess judgments (a court judgment in excess of a policy’s liability limit). A carrier that fails to act in good faith may be forced to satisfy an excess judgment as punishment for breaching the duty.

Most individuals do not maintain adequate policy limits to cover the full consequences of a serious accident. For example, the minimum and least expensive limit for motor vehicle bodily injury (BI) insurance is $10,000 per person/$20,000 per accident. For those individuals who even carry BI coverage at all — it is not mandatory in Florida — this is the limit level most frequently chosen. BI insurance is expected to cover past and future medical expenses, past and future lost income, property damage, and non-economic damages such as pain and suffering. Nor do most individuals have enough private money to cover damages above policy limits. In cases involving serious injuries, $10,000 does not go far.

Liability insurance companies have an affirmative duty to gather damages information. They cannot sit idle when information is at their disposal. Evidence such as vehicle property damage and the police crash report, often indicators of the seriousness of a crash and fault, are usually readily available. This information, alone, can be enough for the carrier to make the decision to tender policy limits. For example, in a case involving a $10,000 policy, evidence of a high speed crash resulting in significant property damage should be enough for the carrier to tender.
Continue reading

by

greed.jpgWhile it’s bad enough that the employer/carrier (“E/C”) get to hand pick the injured worker’s treating doctors, Section 440.13(9)(c) Florida Statutes (2013) gives them a free shot at defeating opinions they oppose. My recent experience demonstrates the point.

In pertinent part, Section 440.13(9)(c) provides:

If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.

My client claimed to have hurt his back while trying to lift a roll of tarpaper from the floor of a van. Unbeknownst to him, the tarpaper had melted in the hot sun and stuck to adjacent rolls, causing unexpected resistance during the attempted lift. He felt the immediate onset of intense back pain.

Initially, E/C sent him to a workers’ compensation clinic. A lumbar spine MRI was ordered. The diagnostic test revealed a disc herniation at L5-S1 along with bony degenerative changes. The herniation caused the clinic doctor to prescribe a consultation with an orthopedist. The orthopedist, chosen, of course, by the E/C, opined that the incident was the major contributing cause (“MCC”) of the disc herniation. He also decided that his patient might benefit from surgery, so he sent him to an orthopedic surgeon, again chosen by the E/C. The surgeon, Jonathan Hyde, M.D., performed a comprehensive physical examination, took a thorough medical history, and personally reviewed the MRI images (as opposed to simply relying on the radiologist’s report). He, too, opined that the incident was the MCC of the disc herniation. He prescribed physical therapy and medicine, and later performed an epidural steroid injection. When none of the conservative approaches worked, he recommended surgery consisting of a “trans-facet decompressive laminectomy approach followed by a transforaminal lumbar interbody fusion.” A surgery date was scheduled for one month later.

Up to this point the E/C had been covering all of the medical care, including the epidural injection. However, it refused to authorize the expensive surgery. Its response was to challenge the treating doctors’ MCC opinions.

E/C went out and hired a well-known insurance company doctor to perform a so-called “IME.” This doctor had not done back surgery since 1979, had not written any articles or given any lectures on the subject of herniated discs or the type of surgery that had been recommended. His CV was only four pages long. In contrast, Dr. Hyde’s CV was some thirty pages long, with entry after entry of articles and lectures on the subjects at issue. He specialized in diagnosing and treating disc herniations. In short, E/C’s IME is a hired gun, Dr. Hyde is a top gun.
Continue reading

by

car-insurance-policy.jpgFlorida law requires every owner or registrant of an operable personal use motor vehicle to maintain Personal Injury Protection and Property Damage – Liability insurance. See Florida Statute 627.733 Required security. While other types of coverage are available under the standard Florida motor vehicle insurance policy, these are the only two that are mandatory. While premiums are charged for the additional coverage, the value can be worthwhile. For example, the minimum mandatory coverage (PIP & PD – Liability) does not keep an at-fault insured from losing driving privileges when injuries are involved. Bodily Injury (BI) insurance does.

Here is a summary of the various types of coverage available under the standard Florida motor vehicle insurance policy:

Personal Injury Protection (PIP). This coverage is outlined in Florida Statute 627.736. For in-state accidents, PIP covers the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle while not occupying a self-propelled vehicle. For out-of-state accidents occurring within the U.S. and Canada, PIP covers the named insured and resident relatives if occupying a listed vehicle. Remember this: Out-of-state, out-of-vehicle, out-of-luck.

PIP pays:

  • 80 percent of reasonable or allowable accident-related medical expenses
  • 60 percent of lost wages
  • $5,000 death benefits

The typical PIP policy limit is $10,000 per person with a deductible of up to $2,000.

Property Damage Liability (F.S. 324.022). Covers damage to a third party’s property, including motor vehicles, walls, telephone poles, buildings, etc. The coverage travels with the insured, meaning it applies (with exceptions) when the insured is operating a non-listed vehicle. It may also cover a permissive user of a listed vehicle. The minimum policy limit is $10,000.

Bodily Injury Liability (BI) (324.021). Not mandatory in Florida. However, for those convicted of DUI, it is mandatory for a period of three years after  license reinstatement. For convictions before October 1, 2007, the minimum coverage limits are $10,000 per person/$20,000 per accident. On or after October 1, 2007: $100,000/$300,000.

BI covers for injuries and loss of life caused by the insured while operating certain listed vehicles. It may also afford coverage to the insured while operating a non-listed vehicle, like a friend’s car. An added bonus of maintaining BI is that the insurance carrier will furnish a legal defense on its tab. The minimum BI coverage limits are $10,000/$20,000. The maximum can be whatever the insured desires and can afford. Umbrella insurance is a way of increasing limits while saving on cost.
Continue reading

by

surgeon-3-391477-m.jpgHerniated intervertebral discs can have significant medical and legal consequences. The symptoms of a herniated disc can range from minor pain all the way up to unbearable, unremitting pain, paresthesia, and numbness. Treatment options include palliative medicine, physical therapy, epidural injections, and surgery. Each of these option can be costly and none is guaranteed effective. A herniated disc can also limit one’s ability to work.

Discs herniate through degeneration, a lengthy process, and acute trauma. A disc compromised by degeneration is more likely to herniate from trauma than one that is not. The personal injury and workers’ compensation legal systems do not compensate for herniations caused by degeneration only. They are supposed to compensate for herniations caused solely by trauma, and will sometimes compensate for herniations superimposed on degeneration, referred to as an aggravation of a preexisting condition. (For an understanding of how the two systems handle aggravation injuries, consider Florida Standard Jury Instruction 501.5a, for civil cases, and this article, for workers’ compensation.

In civil cases, a defendant responsible for causing a herniated disc can be liable in damages which include medical expenses, lost wages (past and future), and pain & suffering (also known as non-economic damages). In workers’ compensation, the employer/carrier can be liable for medical expenses and lost wages; compensation for pain & suffering is not available in the workers’ compensation system.

The costs associated with a herniated disc can be significant, even in the hundreds of thousands where a spinal fusion is involved. As a result, civil defendants and workers’ compensation employers/carriers fight to limit their financial exposure.

A common defense method is to use doctors who will testify to one or more of the following:

  • There isn’t a herniation
  • If there is a herniation, it was not caused by the accident (e.g., it preexisted the accident)
  • The herniation is asymptomatic or not causing the level of pain being complained of by the Plaintiff/Claimant
  • The various treatment options, including surgery, are not indicated now or in the future
  • The herniation should not prevent the Plaintiff/Claimant from working full duty

The defense doctor’s testimony must be challenged. As with the questioning of any expert under oath, the most important rule is to be prepared. For me, at least, that means going over the doctor’s report with a fine tooth comb for weaknesses and inconsistencies, keeping in mind that what isn’t said is often as telling as what is said. At the beginning, I may feel stumped. However, with enough thought, even of the subconscious type, something always comes to mind. This is why I like to begin the process well in advance of the interrogation. Digesting and mulling works wonders.
Continue reading

by

puzzle2.jpgUnderstanding Florida motor vehicle insurance law can be puzzling. The various coverage options include Personal Injury Protection (PIP), Bodily Injury (BI), Comprehensive/Collision, Property Damage Liability, and Uninsured/Underinsured Motorist (UM/UIM). Presently, only PIP and Property Damage Liability are mandatory in Florida. Neither of these coverages compensates the victim of an accident for non-economic damages like pain and suffering arising from a bad injury. Only two of the coverages do: BI and UM.

UM is typically thought of as coverage purchased for the benefit of the named insured or insureds and resident relatives (see definition at Florida Statute 627.732(6)). It takes the place of BI where BI is not available (UM) or not adequate (UIM) because the loss exceeds available coverage limits. UM/UIM are not thought of as providing coverage to those other than named insureds and resident relatives. This thinking is incorrect.
Continue reading

by

laptop-work-1260785-m.jpgParties to legal actions should always assume that their social media (e.g., Facebook; Twitter) postings will be discovered (discovery is allowed by FRCP 1.350; Discovery of Facebook Content in Florida Cases, 31 No. 2 Trial Advoc. Q 14 (Spring 2012)) and used against them by the other side if helpful. Postings can be used to contradict assertions made in a legal case and sometimes lead to the outright dismissal of actions by the court based on fraud.

However, hurdles must be overcome to get postings into evidence. Among the hurdles:

Finding and Preserving the Social Media Evidence

  • Once we find useful postings by surfing the Internet, we save link addresses, print pages, and take iPad screen shots by simultaneously pressing both of the device’s power switches.
  • Preservation of evidence letters can also be sent to those who own and or control the site to prevent spoilation of the evidence through the innocent or purposeful removal of content. Surprisingly, parties are not obligated to preserve evidence without a specific request. See, Osmulski v. Oldsmar Fine Wine, Inc., So.3d , 37 FLW D1578 (Fla. 2nd DCA 6-20-2012).
  • Formal discovery, pursuant to FRCP 1.310, 1.340, and 1.350, can be used to identify websites with potentially valuable information. Request from the respondent: websites the respondent uses to communicate with others; website account information such as account holder and user name; respondent’s email addresses, phone number, home address; printouts of account information and screen shots.
  • Subpoenas can also be issued to website administrators, like Facebook and Twitter. (The particular knotty issues involved in gathering information from administrators is beyond the scope of this blog.)
  • Another source of information is the Wayback Machine. This is a service that allows people to surf more than 150 billion pages in the Internet Archive’s Web archive.

Legal Hurdles
Continue reading

by

greed2.jpgFlorida workers severely injured at work sometimes qualify for both workers’ compensation permanent total disability benefits (PTD) (F.S. 440.15(1)) and social security disability benefits (SSD) (42 U.S.C. s. 423).

The Florida workers’ compensation system, codified in Chapter 440 of Florida’s statutes, sets forth the responsibilities of employers and their workers’ compensation insurance companies (E/C) to injured workers. Workers whose injuries permanently prevent them from being gainfully employed are entitled to receive 66-2/3% of their average weekly wage (AWW) (440.14) from employers/carriers until age 75. These same individuals sometimes also qualify for SSD, which includes a monthly payment, when they are similarly permanently unable to work. (SSD converts to Social Security Retirement benefits at full retirement age — 66 if born after 1942, 67 if born after 1960.) SSD is paid by taxpayers.
Continue reading

by

law books.jpgFlorida entities seek advance protection from their own negligence in two ways: exculpatory clauses and indemnity agreements.

An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. Kitchens of the Oceans, Inc. v. McGladrey & Pullen LLP, 832 So.2d 270 (Fla. 4th DCA 2002).

An indemnity agreement arises when one individual takes on the obligation to pay for any liability, loss or damage that has been or might be incurred by another individual. Free Legal Dictionary. Some indemnity agreements purport to indemnify a party against its own wrongful acts.

Exculpatory clauses and indemnity agreements which attempt to indemnify a party against its own wrongful acts are viewed with disfavor in Florida. Since both are looked upon with disfavor by the courts, they are enforceable only where and to the extent that the intention to be relieved from liability was made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what is at stake. Exculpatory clauses: Gayon v. Bally’s Total Fitness Corp., 802 So.2d 420 (Fla. 3d DCA 2001); Raveson v. Walt Disney World Co., 793 So.2d 1171 (Fla. 5th DCA 2001). Indemnity agreements: Cox Cable v. Gulf Power, 591 So.2d 627 (Fla. 1992); Charles Poe Masonry, Inc. v. Spring Lock Scaffolding, 374 So.2d 487 (1979); University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973); Florida Power & Light Co. v. Elmore, 189 So.2d 522 (Fla. 3d DCA 1966); and Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964).

Our law firm is currently in the early stages of a case involving personal injuries and an indemnity agreement, but no exculpatory clause. Our catastrophically injured client was an independent contractor pulling large trailers owned by a Florida company. He was injured through the negligent maintenance of the trailer by the Florida company. He and the company have in place an agreement calling for our client to indemnify the company for injuries resulting from its fault.

The legal question is whether the indemnity agreement effectively precludes our client from recovering for his losses from the company. We believe that the answer is No. In our considered opinion, it would take an exculpatory clause, rather than an indemnity agreement, to deny our client the right to recover damages from the company for negligently causing his injuries.
Continue reading

Contact Information
Main Office
9999 NE 2nd Ave, #304
Miami Shores, FL 33138
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com
Palm Beach Gardens
2401 PGA Blvd #140
Palm Beach Gardens, FL 33410
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2015 – 2025, Jeffrey P. Gale, P.A.
JUSTIA Law Firm Blog Design