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greed.jpgFor Florida accident victims and those who care for and about them, the tyrannical reign of Jeb [Bush] the Horrible (Governor of Florida from 1999 to 2007) continues to haunt.

Once upon a time in Florida, employees hurt at work could sue their employers in tort by proving that an employer’s conduct created a “substantial certainty” the harmful accident would occur. Although the standard was tough, it still gave employees harmed through conduct exceeding mere negligence a fighting chance of being fairly and fully compensated, rather than being limited to the oftentimes inadequate benefits available under Florida’s workers’ compensation system. A victim making the requisite showing was able to overcome an employer’s workers’ compensation immunity.

Dear Jeb and his uncaring Republican lackeys in the Florida Legislature were dismayed that working men (and women) had a fighting chance against the beloved “Job Creators,” so they eliminated the right. In 2003, the Florida Legislature effectively overruled the Florida Supreme Court case of Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), the case which gave a decent interpretation to the “substantial certainty” standard, by amending Florida Statute 440.11 with the “virtually certain” standard. The pertinent language reads as follows:

The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

See F.S. 440.11(1)(b)2.

As fairly stated by the 4th DCA in List Industries v. Dalien (opinion issued on January 23, 2013), “The change from ‘”substantial certainty”‘ to ‘”virtually certain”‘ is an extremely different and a manifestly more difficult standard to meet. It would mean that a plaintiff must show that a given danger will result in an accident every — or almost every — time.”
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people.jpgFlorida law has long recognized that a car is a dangerous instrumentality. (The dangerous instrumentality doctrine was adopted in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920).) This is based on the simple fact that a car, in the wrong hands and used improperly, is likely to cause great damage. To discourage owners from being careless in the use of their vehicles by others, Florida law holds them responsible for the negligent acts of consensual drivers. This is known as vicarious liability, or liability without fault. (Owners can also be liable under a different legal theory known as negligent entrustment. See this blog for an explanation of the theory: Florida Motor Vehicle Owners Accountable for Damages Without Driving Negligently.)

With rare exception*, vicarious liability is determined through title ownership. This proposition gained solid footing in Metzel v. Robinson, 102 So.2d 385 (Fla.1958), which established the following legal standards: (1) as a matter of law, if a person causes or permits his name to be on the title when the vehicle is acquired, he cannot contradict the title by claiming that he did not intend to be an owner at the outset; (2) as a matter of law, once that person has caused his name to be affixed to the title, he must take some affirmative action to divest himself of that interest to avoid liability; and (3) as a matter of law, relinquishing possession of and having nothing to do with the vehicle after its acquisition is not sufficient to divest that person of his legal interest. (This summary of Metzel is laid out by the 5th DCA, in Bowen v. Taylor-Christensen, 98 So.3d 136, @ 142 (Fla. 5th DCA 2012), a must-read case.)
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maze2.jpgOur previous blog addressed the procedure for satisfying Medicaid’s lien from money received in Florida personal injury cases from liable third parties.The present blog will focus on satisfying Medicare’s lien from third party proceeds. The leading case on the issue is Hadden v. United States, 661 F.3d 298 (6th Cir. 2011).

Medicare and Medicaid are federal programs that provide medical insurance to various classes of individuals. Medicare is for qualified elderly and disabled persons, see 42 U.S.C., §§1395 et.seq., Medicaid is for individuals who cannot afford to pay their own medical costs. See 42 U.S.C. §§1396 et seq. Both programs aim to make themselves only secondary payers as to medical expenses for which some other entity (e.g., a tortfeasor) bears responsibility. Medicare — 42 U.S.C. § 1395y(b)(2), Medicaid — 42 U.S.C. §§ 1396a(a)(25)(A), (B), (H). Hence, the need for personal injury lawyers to know each programs’ lien laws.

In Hadden, Medicare paid more than $80,000 for medical care on behalf of Hadden for injuries he sustained in an accident. Hadden subsequently settled a personal injury claim with a tortfeasor for $125,000. After subtracting a portion of the attorneys’ fees that Hadden himself had paid to obtain the settlement, see 42 C.F.R. § 411.37, Medicare determined that Hadden owed it $62,338.07. Hadden argued that the case settled for 10% of its actual value, therefore, Medicare’s recovery should be limited to a proportional 10% of its outlay, or slightly more than $8,000. The 6th Circuit disagreed.

42 U.S.C. §1395y(b)(2)(B)(ii) provides:

A primary plan, and an entity that receives payment from a primary plan, shall reimburse the appropriate Trust Fund for any payment made by the Secretary under this subchapter with respect to an item or service if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service. A primary plan’s responsibility for such payment may be demonstrated by a judgment, a payment conditioned upon the recipient’s compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan or the primary plan’s insured, or by other means.

The Court interpreted the word “responsibility” to mean the amount the recipient claimed was due from the tortfeasor, rather than a compromised amount he or she receives from the tortfeasor. In other words, the beneficiary’s obligation to reimburse Medicare is “defined by the scope of his own claim against the third party.” In the Court’s view, “a beneficiary cannot tell a third party that it is responsible for all of his medical expenses, on the one hand, and later tell Medicare that the same party was responsible for only 10% of them, on the other.”
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us supreme court.jpgNot infrequently, Medicaid will step up and cover the medical expenses of persons severely injured in accidents before other sources do so. This is commendable. However, where the Medicaid recipient is subsequently compensated by a third party for damages sustained in the accident, Florida Statute 409.910 says that Medicaid must be reimbursed from the proceeds.

How the statutory formula is applied has been the subject of appeals both in Florida and in other states (other states have similar statutory provisions). The many opinions have created some confusion. This blog attempts to clarify the law in Florida.

First, a basic understanding of the Medicaid system is in order. A good explanation comes by way of EMA ex rel. Plyler v. Cansler, 674 F. 3d 290 – Court of Appeals, 4th Circuit 2012.

The Medicaid program, launched in 1965 with the enactment of Title XIX of the Social Security Act, as added, 79 Stat. 343, 42 U.S.C. §§ 1396-1396v, is a cooperative program by which the federal government pays a percentage of the costs a state incurs for medical care for individuals who cannot afford to pay their own medical costs. [Arkansas Dept. of Health and Human Servs.] v. Ahlborn, 547 U.S. at 275, 126 S.Ct. 1752. Although states are not required to provide Medicaid assistance, all 50 states currently do. Id. In exchange for receiving federal financial support for state-run Medicaid programs, states must comply with federal Medicaid laws, including statutory third-party liability requirements, 42 U.S.C. §§ 1396a(a)(25)(A), (B), (H); 1396k, and anti-lien provisions, id. §§ 1396a(a)(18), 1396p.

States providing Medicaid assistance must comply with several provisions concerning third-party liability. For instance, states are required to “take all reasonable measures to ascertain the legal liability of third parties … to pay for care and services available under the [State’s Medicaid] plan.” 42 U.S.C. § 1396a(a)(25)(A). In addition to this identification requirement, the state agency administering the Medicaid program … must seek reimbursement for medical assistance to the extent of such legal liability. Id. § 1396a(a)(25)(B). In order to secure its reimbursement from liable third parties, the state must,

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maze.jpgUninsured/Underinsured Motorist (UM) insurance coverage in Florida, located in F.S. 627.727, is first party insurance to compensate insureds for economic losses (e.g., medical expenses and lost wages) and non-economic damages (e.g., pain & suffering) resulting from motor vehicle accidents. Although it must be offered by every carrier authorized to sell motor vehicle insurance in Florida, unlike PIP and property damage liability it is not mandatory, so it can be rejected.

Besides the statute, a good place to start to gain an understanding of UM coverage is the Supreme Court of Florida case Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229 (Fla. 1971). While the court majority provides a thorough overview of UM law, the holding itself is limited to whether or not a resident relative injured while operating a vehicle owned by another resident relative, but not covered under the UM policy, is entitled to UM benefits. The explicit terms of the insurance policy excluded coverage under these circumstances. The trial court agreed that the exclusion defeated plaintiffs’ cause of action and the First District Court affirmed, on appeal, citing in support its decision in United States Fidelity & Guaranty Co. v. Webb, Fla.App. 1966, 191 So.2d 869. The Supreme Court decided that the exclusion was contrary to the UM statute and, thus, uneforceable. It explained:

Whenever bodily injury is inflicted upon named insured or insured members of his family by the negligence of an uninsured motorist, under whatever conditions, locations, or circumstances, any of such insureds happen to be in at the time, they are covered by uninsured motorist liability insurance issued pursuant to requirements of Section 627.0851. They may be pedestrians at the time of such injury, they may be riding in motor vehicles of others or in public conveyances and they may occupy motor vehicles (including Honda motorcycles) owned by but which are not “insured automobiles” of named insured.

The court pointed out that this level of coverage is not extended to “other persons potentially covered who are not in the class of the named insured and relatives resident” in the named insured’s household. Importantly,

“These latter are protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured automobile of the named insured with his permission or consent.”

CAVEAT: After Mullis, the legislature amended section 627.727, Florida Statutes (1989), to allow insurers to offer limitations on the coverage provided by uninsured motorist coverage if certain statutorily mandated notice requirements are met. See, Carbonell v. Automobile Ins. Co., 562 So. 2d 437 (Fla 3rd DCA 1990).Specifically, the current version of subsection (9)(d) of section 627.727 provides:

The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.

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law books.jpgHave you ever wondered why insurance companies settle claims? The answer is not because they are kind and generous. The reason is because it is often cheaper for them than the potential alternatives. In other words, carriers settle in order to save money.

What would happen if one of those alternatives, the one that is the most threatening of all to insurance companies, is watered down so as to lose much of its practical value? The answer is simple: carriers will be less likely to settle claims when they could and should do so.

There are two types of optional (i.e., non-mandatory) coverages available under every Florida-issued motor vehicle insurance policy that compensate those damaged by the negligence of others for economic (e.g., lost wages and medical expenses) and non-economic (e.g., pain & suffering) losses. One is BI or bodily injury insurance, the other is UM or uninsured/underinsured motorist coverage. (UM: Florida Statute 627.727.)

Through legislation and court opinions, a body of law has developed in Florida with the purpose of compelling insurance companies to act in good faith towards their insureds (i.e., their premium paying customers). In the context of BI and UM insurance, this means that carriers must settle claims when it could and should do so based on the circumstances. The punishment for failing to do so, i.e., acting in bad faith, is that the carriers may be responsible for paying court judgments in excess of policy limits. This can be an extremely compelling threat. Consider this UM example: the insured, who has contracted for a $100,000 UM policy, is severely injured in a rear end crash caused by an uninsured drunk driver. Past and anticipated future medical expenses and lost wages exceed $500,000, while the victim will experience a lifetime of daily pain and suffering from her severe injuries. In spite of knowing all this, the UM carrier refuses to tender the $100,000 to its insured. Unwilling to accept a lesser amount from the carrier, the insured sues and obtains a jury verdict (subsequently turned into a final judgment) in the amount of $1,500,000. In other words, after considering the same facts available to the UM carrier, a jury has decided that the insured’s damages are 15 times greater than her UM policy limits.

Until recently, it was thought that the insured could then proceed to collect the $1,500,000 by proving bad faith against the carrier in a separate civil suit. Importantly, damages, already determined in the underlying civil suit, did not have to be established again. Unfortunately, this is where things may be changing for the worse for premium-paying insureds.
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scales of justice.jpgAs I have blogged here before, Florida’s workers’ compensation laws have become progressively less friendly to injured workers in direct proportion to the power gained by state Republican lawmakers. As their power has grown — today, they control the governor’s office and both chambers of the legislature — the value of workers’ compensation benefits has declined.

One way in which the significant decline has taken hold is in the apportionment of benefits. Apportionment is the means by which employers and their workers’ compensation insurance companies now limit the payment of medical and indemnity benefits to injured workers. In short, their obligation is discounted by the share an injured workers’ preexisting medical condition — the term is defined in Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007) and Pizza Hut v. Proctor, 955 So.2d 637 (Fla. 1st DCA 2007) and made applicable to apportionment through Staffmark v. Merrell, 43 So. 3d 792 (Fla. 1st DCA 2010) — contributes to his or her current medical state. (Caveat: do not confuse this concept with the concept of major contributing cause contained in Florida Statute 440.09(1)(b). See these blogs to understand that concept: Florida’s Workers’ Compensation System’s Steady Decline Into the Abyss; and Florida Workers’ Compensation Law: Proving Medical Causation.) Put another way, only the disabilities and medical treatment associated with a compensable injury shall be payable
“Apportionment is an affirmative defense; thus, the E/C has the burden of proving each element of the defense.” See

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crushed vehicle.jpgFlorida law has long recognized that a car is a dangerous instrumentality. This is based on the simple fact that a car, in the wrong hands and used improperly, is likely to cause great damage. In consideration of this unique characteristic, two legal doctrines have developed in Florida to hold vehicle owners to account for damages resulting from the negligent operation of their vehicles by others. The two doctrines are vicarious liability and negligent entrustment.

As pertains to motor vehicles, vicarious liability has been a part of Florida jurisprudence since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). The doctrine makes a vehicle owner liable for damages caused by the negligent operation of his vehicle by a consensual driver. The key element of the doctrine is that the owner is liable without being at fault. While this no-fault element can be a good thing for accident victims, the doctrine has limitations. In particular, damages against the vicariously liable vehicle owner are capped by Florida Statute 324.021(9)(b)3. This means that regardless of actual damages, the vehicle owner pays no more than what is designated by statute. In many cases — for instance, those involving catastrophic injuries — actual damages will greatly exceed the statutory caps.
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accident scene.jpgIn November, 2012, the Supreme Court of Florida, in Cevallos v Rideout (No. SC09-2238), issued an opinion that buried a misguided and out-dated 2009 decision by the Fourth District Court of Appeals. (Contemporaneously with its decision in Cevallos, the court issued a similar opinion in Birge v. Charron, No. SC10-1755 (Nov. 21, 2012).) The opinion the Supreme Court shot down is that a person injured in a vehicle which has struck the rear of another vehicle cannot prevail unless it is shown that the driver of the trailing vehicle was completely blameless. The 4th’s opinion was in direct conflict with decisions from various district courts of appeal in Florida. Charron v. Birge, 37 So. 3d 292 (Fla. 5th DCA 2010), Cleaveland v. Florida Power & Light, Inc., 895 So. 2d 1143, 1145 (Fla. 4th DCA 2005), Jefferies v. Amery Leasing, Inc., 698 So. 2d 368, 371 (Fla. 5th DCA 1997), Pollock v. Goldberg, 651 So. 2d 721, 722-24 (Fla. 4th DCA 1995), Johnson v. Deep South Crane Rentals, Inc., 634 So. 2d 1113 (Fla. 1st DCA 1994), and Edward M. Chadbourne, Inc. v. Van Dyke, 590 So. 2d 1023 (Fla. 1st DCA 1991).
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Effective civil trial lawyers punish individuals, corporations, and governments for irresponsible behavior. One of the biggest culprits has been the auto industry. Thanks to large jury verdicts, the industry has been forced to knuckle under to the public’s demand for safer vehicles. However, safety issues remain.

Safety belts could be more effective. Vehicles could be designed to rollover less easily. Roofs could be reinforced to avoid crush injuries during rollovers. Stale tires could be taken off the market. Air bags could be less crude, more effective.

These are well-known safety issues. To its credit, the auto industry has made some improvements in these areas. However, more can always be done. When the industry falls short, lawsuits will be brought to exact accountability. Safety should never take a back seat to luxury. Profits should never be more important than people.

One area where the industry continues to fall woefully short is in its attention to submerged vehicle deaths. While safety improvements have been made regarding safety belts, rollover accidents, tires, and air bags, little has been done to increase the likelihood of surviving a crash into water.

In fact, because of the near universal use of electric windows and the increased use of window glazing in side windows, similar to what is used in front windshields, the danger of drowning in a submerged vehicle has increased since the 1970s.

The safest way to exit a submerged vehicle is through a side window. Unfortunately, except for some off-road vehicles, like Jeeps and Hummers, that are equipped with built-in protections for water-fording, such as a sealed central venting system to protect drivetrain components from moisture, the electrical systems in today’s vehicles quickly malfunction when exposed to water, preventing the side windows from opening.
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