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people.jpgFlorida’s Wrongful Death Act, located in sections 768.16 through 768.26 of Florida’s statutes, controls legal actions arising from the loss of life on account of a tortfeasor’s negligence. The Act refers to those who may recover damages for the loss as “survivors.”

Survivors can be spouses, children and parents. The Act allows survivors to recover the decedent’s medical expenses and future lost earnings and accumulations, and to be compensated for their own mental anguish.

Needless to say, the loss of a parent or child causes substantial mental anguish. Inexplicably, Florida’s Legislature has carved out an exception for mental anguish damages caused by medical negligence. Specifically, the Act bars

  • compensating adult children for mental anguish caused by the death of a parent
  • compensating parents for mental anguish caused by the death of an adult child

Since section 768.18(2) of the Florida Statutes defines minor children as being children under 25 years of age, notwithstanding the age of majority, the Wrongful Death Act’s exceptions apply in the case of children 25 years of age and older.

These exceptions are arbitrary and capricious. Unfortunately, they have been upheld by the Florida Supreme Court. See Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 – Fla: Supreme Court 2000.

In addition to depriving survivors of their rightful due, these outrageous exceptions create a dangerous environment for many people who receive medical care in Florida. Strong and fair medical negligence laws demand accountability from providers and facilities. This promotes quality care. Weak laws allow the opposite. Making matters worse, the exceptions create a financial incentive for death as the prefered outcome following a serious malpractice event. Under Florida’s civil justice system, those who survive their medical malpractice injuries can be far costlier than those who do not. Because money has a way of making people do rotten things, this is a troubling scenario.
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people.jpgI discuss settlement with our workers’ compensation clients every day of the week. Even people we don’t represent call on a regular basis to pick my brain about settlement. Each case has its own unique set of variables. No blueprint is available to provide answers.

Some basic principles do apply in every Florida workers’ compensation case. It is important for them to be understood.

  1. Neither the employer/carrier (e/c) nor the injured worker/claimant can be forced to settle a Florida workers’ compensation case. If there is going to be a settlement, it must come by agreement of the parties.
  2. No judge or jury can order the e/c to pay a lump sum amount for future benefits. While workers’ compensation judges can order the e/c to provide some future benefits, the payout only comes as the benefit accrues. For example, the judge can make an e/c responsible for attendant care, but the e/c only pays as the service is provided. Lump sum verdicts are the remedy in civil cases, not in workers’ compensation cases.
  3. There are no juries in workers’ compensation cases, only workers’ compensation judges appointed by the Governor of the state. Juries render verdicts in civil cases.
  4. Injured workers never receive compensation for pain and suffering in Florida workers’ compensation cases. Compensation for pain and suffering is exclusive to civil liability cases. While an employer can sometimes be sued for civil damages, it is a rare exception. It is not uncommon, however, for a third party to be sued in civil court for causing the employee’s job-related accident. For example, our office is currently prosecuting a civil action for a woman who slipped in wet paint as she was leaving work. The case is against her employer’s landlord. We settled the workers’ compensation case against her employer (and its insurance company) six months ago.

Settlement value is based on exposure. How much a case is worth at any given moment in time depends on how much the case can reasonably be expected to cost e/c in the future if it does not settle. Since the e/c is not in the business of giving gifts to injured workers, it will never settle a case for more than what it projects as its long term exposure. In fact, the e/c won’t even settle for an amount equal to its projected exposure. If a deal is to be made, it will have to be for a fraction of e/c’s worst case scenario analysis. The main reason for this is because the e/c earns money on its money. Rather than pay the full amount today, the e/c is better off investing the money and paying it off over time. Another reason why less than full exposure is paid today is because workers’ compensation claims die with the claimant. The e/c’s obligation to pay benefits ends when the claimant dies. Whatever money e/c has in reserve to meet is future obligations becomes its money with the passing of the claimant.
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hospital.jpgIn every serious personal injury case in Florida, the issue of who will pay the medical providers and how much always arises. Needless to say, providers want to recover as much as they can. Patients, of course, want to pay as little as possible out-of-pocket. How this plays out often depends on who pays the bills.

The different pay sources include health insurance, PIP (motor vehicle insurance), workers’ compensation, the patient (self-pay), the tortfeasor (out-of-pocket), bodily injury liability coverage, UM/UIM (motor vehicle insurance), Medicare and Medicaid.

Various laws dictate who pays what and when. In some instances, the only available sources are Medicare or Medicaid (M/M) and bodily injury liability and/or UM/UIM. Since M/M provide some of the lowest reimbursement rates and providers accepting M/M payments are not allowed to balance bill their patients, in terms of raw numbers it is often to the victim’s advantage for M/M to pay the providers. While victims will ultimately have to reimburse M/M from their recovery in the personal injury case, the amount of the reimbursement is almost always less than what must be paid to the provider directly from the third party recovery (1st party if from UM/UIM).
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Every insurance policy issued in Florida contains the requirement, in some form or another, that the insurance company be put on notice of the claim and certain other claim events. Failure to provide notice in accordance with the policy’s terms may allow the insurance carrier to deny the claim.

Florida law is quite clear that notice to one’s agent or apparent agent is notice to the principal. That is true in the context of insurance. See Johnson v. Life Insurance Company of Ga., 52 So.2d 813, 815 (Fla. 1951). Insurance brokers, on the other hand, are not agents. Therefore, notice to brokers is typically not imputed to the principal.

In Gay v. Association Cas. Ins. Co., So.3d , 38 FLWD74 (Fla. 5th DCA 12-28-2012) (on rehearing) the insured maintained an insurance policy with Association Casualty Insurance Company for uninsured and inderinsured motorist coverage which was purchased through Burkey Risk Services, Inc. The insurance policy contained notice instructions. Following a serious motor vehicle accident, Gay informed Burkey of the accident and claims to have received permission from Burkey to cash a check issued by GEICO, the tortfeasor’s carrier, in partial payment of his damages. When Gay sought underinsured coverage through his policy, Association denied the claim, citing a breach of the policy’s notice provisions.
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While personal injury litigation in Florida courts is not supposed to be a game of “gotcha,” or trial by ambush, Surf Drugs, Inc. v. Vermette, 236 So.108, 111 Fla.1970,” unless attorneys pay careful attention, it can happen in their cases. One of the ripest areas for this gamesmanship to occur is in the use of accident videotape.

Premise liability defendants often have videotape of the accident. Rarely is it produced presuit, even when doing so might head off a lawsuit. Proof that tried and true policies aren’t always the best. Even during suit, defendants resist turning over the tape. In the hope of catching Plaintiffs giving testimony inconsistent with the events captured on tape, even if the inconsistencies are based on a lack of clear memory or a lack of knowledge, rather than untruthfulness, they want to question plaintiffs before producing the accident footage.
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Plaintiffs personal injury lawyers typically have preferences in which medical providers they use to treat and render expert opinions on such issues as causation, disability, and prognosis. This is often due to familiarity and confidence in the provider’s competence. It is sometimes dictated by financial considerations.

Many people are uninsured or have inadequate coverage. When care is required that exceeds a person’s current ability to pay, many medical providers refuse to accept those people as patients. Some providers, however, are willing to take on the care and treatment of individuals in this predicament with the expectation of receiving payment from the personal injury case. To insure payment upon the favorable resolution of a case, these doctors sometimes require the patient and their personal injury lawyers to sign a letter of protection (LOP), an agreement to pay from the recovery.

This is not unreasonable. People with injuries require care. Most doctors cannot afford to work for nothing.
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scales of justice.jpgExpert testimony plays a major role in almost every civil and criminal legal case. In Florida state courts expert testimony is governed by sections 90.702-90.706, Florida Statutes. The goal of the statutes is to insure fairness and impartiality in the trial of cases. The standard for when expert testimony is allowed is set forth in

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dollars.jpgPayments made by health insurance and Medicare must be repaid by the beneficiary of the payments from money recovered in the personal injury case for which the medical care was furnished. (Note: PIP, which is no-fault insurance for medical bills in car accidents, does not have to be reimbursed.) In determing how much is owed, an end date beyond which further payments are not reimbursable must be established.

The cutoff date varies depending on the entity involved.

HEALTH INSURANCE: The cutoff date depends on whether the policy is subject to ERISA. If it is not, the lien ends at the date of settlement. See Florida’s collateral statute — 768.76. It is fairly well established (although not conclusively — see Coleman v. Blue Cross and Blue Shield of Alabama, Inc. So.3d , 35 FLW D2718 (Fla. 1st. DCA 12-8-2010) for a contrary view) that the collateral source statute does not apply to ERISA plans. Rather, those lien rights are controlled by the subrogation/reimbursement language in the Summary Plan Description (SPD). The SPD should be requested, but in all likelihood its provisions are expansive, allowing for recovery of all charges related to the accident. The plan may even provide that it is not responsible for covering post-settlement accident related care.
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law books.jpgBecause Florida workers’ compensation permanent total disability (PTD) benefits are paid at the rate of 66-2/3% of an injured worker’s average weekly wage (AWW), an employee qualifying for both PTD and Social Security Disability (SSD) benefits may be in line to receive combined payments in excess of his or her AWW. Is this allowed under Florida law? The answer is, it depends.

Florida Statute 440.15(9)(a) and 42 U.S.C. s. 424(a) address the issue. The federal law allows the combined payments to equal 80% of a person’s average current earnings (ACE). ACE is a calculation, based on one of three formulas, used by the United States Social Security Administration to determine monthly SSD payments. Payments in excess of the 80% are subject to an offset.

Who gets the offset, the federal government, against SSD, or the workers’ compensation insurance companies? Unless a state has laws allowing workers’ compensation carriers to take the offset, the offset belongs to the Social Security Administration. The SSA will reduce SSD payments to bring the combined benefits down to the 80% mark.
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legal document.jpgMost Florida insurance policies require the insured to give notice of a loss to the insurer within a prescribed period of time, typically 30-60 days. The reason for the requirement is to allow the insurer to investigate the claim while the facts are fresh. While late reporting is presumed to prejudice the insurer, the presumption may be rebutted by showing that the insurer has not been prejudiced by the late notice. See Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla. 1985) (failure to cooperate is a condition subsequent and it is proper to place the burden of showing prejudice on the insurer) Kings Bay Condominium Association, Inc. v. Citizens Property Insurance Company, 4th District. Case No.4D11-4819. December 12, 2012 (the trier of fact was allowed to consider if the insurance company was prejudiced by a 29 month delay in filing the notice of claim); Bontempo v. State Farm Mut. Auto. Ins. Co., 604 So.2d 28 (Fla. 4th DCA 1992); Ramos v. Northwestern Mut. Ins. Co., 336 So.2d 71 (Fla. 1976) (an insurer may not avoid liability under its policy by merely showing the violation of a clause requiring “assistance and cooperation” of the insured without a further showing of how this violation prejudiced the insurer); American Fire & Cas. Co. v. Collura, 163 So.2d 784 (Fla. 2d DCA), cert. denied, 171 So.2d 389 (Fla. 1964); American Fire & Cas. Co. v. Vliet, 148 Fla. 568, 4 So.2d 862 (Fla. 1941); United States Fidelity & Guar. v. Snite, 106 Fla. 702, 143 So. 615 (Fla. 1932).

A presumption which can be overcome by competent evidence is known as a rebuttable presumption.
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Palm Beach Gardens, FL 33410
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