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Shaking hands.jpgEvery case is different. From accident to injuries, no two cases are ever exactly alike. That said, certain common elements do run through every case. From time to time I will be posting about some of the cases our firm has resolved. The common elements should become apparent in these blogs.

This first example involves a 2011 premises liability accident. Our client slipped in wet paint as she was descending a stairway after work. The property owner had hired an unlicensed and inexperienced recent Cuban immigrant to improve the appearance of the premises for a December holiday party. The painter failed to place warnings signs around the stairwell. It was night time and the outside stairwell was poorly lit. The accident happened in the blink of an eye. There was nothing our client could do to prevent the fall.

Our client, who was wearing flat-soled shoes, landed squarely on her rear-end. She felt immediate pain. Grey paint stained her pants and blouse. She called a co-worker, who assisted her in receiving medical care at a clinic located in her building. Within days she was receiving medical care under the workers’ compensation system from doctors hand-picked by the WC insurance carrier.

Because the building owner was not her employer, she was free to pursue a premises liability case against the owner. (See this blog on the law of non-delegable duty and Florida Statute 440.11, Florida’s workers’ compensation immunity statute.) However, she was unaware of this right, and the workers’ compensation attorney she hired did not consider the option. Within months, our client became disenchanted with her workers’ compensation attorney and came to our law firm for a consultation.

Our law firm handles workers’ compensation and premises liability cases. We quickly recognized that she also had a viable personal injury case. We agreed to handle both cases. This was seven months after the accident.

Our first course of business was to request a slew of records, including medical and employment documents from the workers’ compensation insurance carrier. This was quicker, easier, and cheaper than requesting each set of records individually from the various entities. Within thirty days we had the records and were able to review them to get a clearer picture of the cases.

Among other things, we learned that she had undergone a 3-level spine fusion surgery in early 2012. We also learned that, in 2007, she had another, albeit less intrusive, back surgery. The prior surgery turned out to play a prominent role in the premises liability case.
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scales.jpgA few months ago our law firm, working with the Domnick & Shevin, PL law firm, settled a difficult liability case against an insurance agency arising out of a catastrophic motorcycle crash.

Our client had been hospitalized for two months. Medicaid paid his substantial hospital bill. After the case settled, Medicaid came to us demanding to be repaid in full from the settlement proceeds.

We disputed Medicaid’s claim to be repaid in full. Instead, we offered the agency a small portion of the settlement to go away. Medicaid rejected the offer. Unwilling to give in, we filed a Motion to Reduce Medicaid Lien with the court that handled the underlying liability case. (We reserved jurisdiction with this court by including language In the Order of Voluntary Dismissal that it retained jurisdiction “to determine liens and reductions of liens based on equity or any other basis, including, but not limited to, Medicaid’s interest in any recovery.”)

Medicaid countered with a number of arguments. Among them: The court did not have jurisdiction to entertain the dispute. In its view, the Plaintiff was required to file a separate lawsuit, a dec action, against Medicaid; and Florida Statute 409.910 authorized a full recovery.
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ladder1.jpgIn Umile v. Volpe, So.3d , 38 FLW D410, Florida’s 4th District Court of Appeals held that a homeowner may be liable for injuries suffered by an independent contractor hired to perform work in his home.

The holding might appear to clash with this statement of Florida law:

“As a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in performing their work.” Johnson v. Boca Raton Cmty. Hosp., Inc., 985 So. 2d 593, 595 (Fla. 4th DCA 2008).

It doesn’t clash with Florida law.
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Chess.jpgThis past week our firm settled a workers’ compensation case for $892,000. Included in the settlement package was a Medicare Set Aside. Importantly, while the workers’ compensation carrier had not obtained CMS approval prior to the settlement, the carrier guaranteed that it would cover any CMS required payments above those proposed. (The carrier also agreed that if CMS required less than the proposed amount, the Claimant would keep the difference.)

Without this guarantee, the case would not have settled. While the settlement was abundantly fair, the Claimant could not chance having to pay out-of-pocket to CMS more than was proposed. Moreover, he wanted the peace of mind of finality that only the guarantee could buy. The proposal was not a complete shot in the dark for the carrier, so the guarantee was not a big risk. The MSA proposal was generated by the carrier’s own experts, with backgrounds in medicine and billing, and extensive experience with CMS. Having been-there and done-that, the carrier’s team did not expect any big surprises. Nevertheless, the guarantee was a big deal for the Claimant. (Also helpful is that the carrier agreed to pay a private company — Medivest — to manage the Medicare Set-Aside. This is the way to go. Managing a Set-Aside is beyond the capabilities of most individuals and if done wrong, money will be wasted and Medicare benefits jeopardized.)

In cases where the Claimant has substantial future medical needs, it is important for Claimant’s attorneys to remember that the amount CMS is willing to approve for the MSA Set-Aside is often a small fraction of the actual cost of future medical expenses. For example, in the settlement mentioned above, the carrier’s exposure for future medical expenses was 15-20 times greater than the amount CMS will approve. Congress allowed this flexibility by understanding the importance to private business of being able to settle cases. (See, 42 C.F.R. §411.46, 42 C.F.R. §411.47 and §3407.7, or 42 C.F.R. §411.54, et seq., of the Medicare Intermediary Manual.) If MSAs had to equal full exposure, cases would be too costly to settle. Without being able to settle cases, the insurance industry would come to a grinding halt. This would harm the economy. The alternative was to make taxpayers shoulder some of the exposure. This is what happens when Set-Asides are approved for less than full exposure.
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Rodin2 Thinker.jpgExperienced personal injury attorneys consider many factors in judging how to manage their cases. While common elements are present from case to case, no two cases are ever completely alike. Both subjective and objective considerations must be taken into account to reach decisions most beneficial to client and attorney alike. The decisions are always consequential. The best personal injury attorneys are the best decision makers.

The elements influence everything from: whether the law firm accepts a case; whether a lawsuit will be filed versus simply trying to resolve the case pre-suit; settlement amount; whether to go to trial; whether the case is declined after it has been accepted by the law firm. Since every case has many moving parts, these and other case management decisions are adjusted frequently.

COMMON CONSIDERATIONS
Insurance coverage. There are many different types of liability insurance to cover for losses caused by negligence. The more common are homeowners, premises liability, bodily injury (BI), and medical malpractice. Most individuals and businesses with sizable unprotected assets have strong liability insurance coverage. A fair percentage with weaker financial positions have coverage, although usually with lower policy limits. Some have no coverage at all. The state of Florida has few requirements for maintaining liability insurance. (One exception is for tractor trailers/18-wheelers. The owner is required to maintain $750,000 in coverage. Unfortunately, laws are often violated, including as to maintaining insurance. Surprisingly, doctors are not required to maintain malpractice insurance.) It is mostly left as a personal choice. No matter how significant the damages, no financial means plus no insurance usually means no recovery. Few lawyers will accept a case under these circumstances. Coverage that is available but limited under the circumstances can influence a lawyer’s decision to take the case, or how hard and far to push it.

Negligence. Florida operates a fault-based civil liability system. (The workers’ compensation system, covered in Chapter 440 of the Florida Statutes, is not fault-based. Benefits, rather than damages, are recoverable under Chapter 440. These benefits are much different than the damages recoverable under the civil liability system.) Only conduct which falls below a reasonable standard is punished. Fault can be shared by various individuals and entities, including the aggrieved party. This is the concept of comparative fault. Fault can be clear, it can be gross, it can be illusive. These fault considerations (and more) influence the course and outcome of every negligence case. Fault must be proved by the aggrieved party to recover damages (e.g., medical bills, lost wages, pain and suffering).

Injuries. Other factors aside, the worth of any personal injury case is always capped by the extent of the injuries. Put another way, an accident without injuries is an accident without value. Individuals can be compensated for the aggravation of pre-existing injuries. See Florida Standard Jury Instruction 501.5(a). This is a frequent battleground issue. Our firm is in suit for a woman involved in a slip and fall accident. Within months of the accident, she underwent a 3-level spine fusion surgery. Because of a relatively minor back surgery 7 years before and some evidence of normal preexisting degeneration, the Defendant is trying to avoid blame for her injuries. It has even hired a notorious insurance company “whore” doctor to support its position. (Mediation is scheduled.)

Medical Treatment. Medical conditions must be documented to be proven. Receiving consistent care from reputable doctors is an important component. Insurance companies know the players, juries are good at recognizing the good and the bad. Delaying the receipt of care or gaps in care make a difference. While there are reasonable explanations for inconsistent care — the most common being the inability to pay — a good personal injury attorney can help make arrangements for timely, steady, and quality care to be provided.
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Not willing to accept the voice of the people as expressed through jury verdicts, the Florida Legislature has imposed arbitrary limits on how much individuals harmed by medical negligence/malpractice can be compensated for their losses.

Florida law recognizes two types of recoveries for people harmed by negligence, economic and non-economic. Economic losses include past and future income and medical expenses. In broad terms, non-economic losses are pain and suffering.

America’s jury system has its roots in Mosaic Law — Mosaic Law and American Jurisprudence. The system works.

Parties to lawsuits present evidence at trial. Following instructions from trial judges on how to weigh and consider evidence, juries deliberate carefully and thoughtfully behind closed doors — see, 12 Angry Men (1957 film). For the most part, juries get it right. On the rare occasions they don’t, their mistakes are corrected by trial judges and appellate courts.

Civil jury verdicts enable the powerless to hold the powerful accountable for wrongdoing. Florida’s Republican-controlled Legislature opposes this principle, and makes its view known every legislative session with proposed legislation aimed at neutralizing the importance of civil jury verdicts. (But for push-back from organizations like the Florida Justice Association, of which I am a proud member, the Legislature’s efforts at neutralization would be even more severe, the political equivalent of castration.) Arbitrary and capricious, one-size-fits-all damage cap limits, coming under the guise of “Tort Reform” or justified by the myth of a “Medical Malpractice Crisis” — (See this blog: Medical Malpractice Myths — are a particular legislative favorite.
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car-insurance-policy.jpgFlorida drivers are surprised to learn that their license privileges can be suspended following a crash determined to be their fault which results in death or bodily injury. They mistakenly believe that being in compliance with the state’s minimum insurance requirements protects them against this and other negative consequences of a crash. (To appreciate some of the misunderstanding, read this blog: “Full Coverage” Vehicle Insurance Does Not Mean What Most Floridians Think.)

There are only two types of vehicle insurance coverage required to lawfully register and operate a motor vehicle in Florida, Personal Injury Protection (PIP) and Property Damage – Liability. Neither coverage compensates for death or bodily injury. The only type of third party coverage (as opposed to first party coverage, the subject of another conversation) that does is called Bodily Injury or BI. It is described at Florida Statute Section 324.021 (7). Without BI coverage, the vehicle owner, whether or not the at-fault operator of the vehicle (read, Florida Motor Vehicle Owners Accountable for Damages Without Driving Negligently), can have his drivers license suspended and all vehicle registrations suspended. See the authority for these principles at Florida Statutes 316.066(3)(a)1, 324.051(2)(a), and Section 324.021 (7).
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crushed vehicle.jpgThe subject of this blog is a recurring theme in our law firm and in every law firm in the state involved in motor vehicle accident litigation.

Insurance coverage is a key issue in every Florida motor vehicle accident case. It is relevant to medical expenses, lost wages, vehicle repairs or replacement, and compensation for non-economic losses like pain and suffering.

Florida law controls some aspects of every motor vehicle insurance policy issued in Florida. At the moment, every new policy must include Personal Injury Protection (“PIP”) and Property Damage — Liability coverage. PIP provides a limited amount of coverage for the insured’s own medical expenses and lost wages — see Florida Statute 627.736. Property Damage — Liability provides a limited amount of coverage for damage to the property of others caused by the at-fault insured.

Nothing more in the way of insurance coverage is required for a vehicle registered in Florida to be operated lawfully in the state. The minimum mandatory policy is the least expensive policy available, explaining why so many motorists purchase it. Because it complies with Florida law, its owners often think they have “Full Coverage.”
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worker2.jpgBefore Florida adopted a workers’ compensation system, in 1935, for workers injured on the job to recover medical expenses and lost wages, or be compensated for non-economic damages, like pain and suffering, they had to prove that the accident resulted from negligence on the part of the employer or some third party. Further complicating their path to recovery was the legal principle known as contributory negligence, which acted as a complete bar to recovering benefits if the injured worker contributed in any way to causing the accident, even by as little as 1%. Few workers were able to overcome these two burdens. And for those few who succeeded, the slow grind of justice often left them broken and destitute.

The new system created an immediate sea change of good for Florida’s workers. No longer would they be forced to fight, usually unsuccessfully, for every needed benefit. So long as the injury happened in the course and scope of the employment, medical and lost wage (indemnity) benefits would be furnished, contributory negligence notwithstanding. It was the declared ideal of the system to be self-executing, meaning benefits would come without a fight, and, where there was a dispute, the worker received the benefit of any doubt.

In exchange for this no-fault system, injured workers were forced to give up the right to seek common law civil remedy damages, like pain and suffering, from the employer. (They could still seek these damages from third parties.) In other words, employers were immune from civil lawsuits. See,

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stools.jpgBusiness establishments owe patrons the duty of ordinary and reasonable care with respect to their safety. See Economy Cash & Carry Cleaners, Inc. v. Gitlin, 1 So.2d 191 (Fla. 1941), and our blog, Status Determines Duty in Florida Premises Liability Cases. To meet this duty with regard to chairs made available to patrons, the establishment must select bullet-proof, industrial grade chairs able to withstand heavy use by heavy people, or have an effective inspection and maintenance procedure in place. See, Fontana v. Wilson World Maingate Condominium, 717 So.2d 199 (Fla. 5th DCA 1998) (The court decided that the jury could have found that the owner’s ostrich like approach to the safety of its premises did not meet its obligations to its invitees.)
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