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people.jpgWinning may not be a victim’s only concern in a personal injury case. Collecting on damages awarded post-victory can be of equal or greater importance.

Not every tortfeasor (at-fault party) is adequately insured or has the independent financial means to satisfy a court judgment. In some instances a non-negligent party, one, perhaps, with the resources to satisfy a judgment, is held legally accountable for the damages caused by another party. This is called vicarious liability. The most common example of vicarious liability involves the owner of a motor vehicle being responsible for the negligence of a permissive user of the vehicle. It is worth repeating that a vicariously liable party need not be negligent.

Florida employers can be liable for the conduct of their employees in two different ways. One is vicarious liability. The other requires active negligence on the part of the employer.

An employer can be vicariously liable for the act of an employee committed (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer. Valeo v. East Coast Furniture Co., So.3d , 37 FLW D1820 (Fla. 4th DCA 8-1-2012). In Valeo, following a motor vehicle accident the plaintiff exited his truck and approached the driver’s side window of the defendant’s truck, whereupon the defendant’s employee hit him in the eye with a padlock. The defendant’s driver testified that he hit the plaintiff with a padlock because he thought the plaintiff was trying to rob him of cash he was carrying for the employer. The plaintiff denied being the aggressor. The trial court decided that the employer could not be vicariously liable under these circumstances. The appellate court disagreed, holding that the question was one to be decided by a jury.
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Childbirth.jpgOur previous blog addressed Florida’s statutory scheme, known as NICA (Florida Birth-Related Neurological Injury Compensation Association, Sections 766.301-766.316 Florida Statutes (1988), for providing “compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation.” See Section 766.301(2) Florida Statutes (1988). NICA is the exclusive remedy in cases that meet its requirements. Because its remedies may not be adequate to cover the damages, our blog encourages lawyers to make every effort to avoid NICA where the brain injury was caused by medical negligence. We explained that the remedies available under Florida’s traditional tort system often outweigh those under NICA.

Where NICA can and should be avoided to pursue medical malpractice remedies, the Plaintiff must prove fault and damages to prevail. This blog addresses some of the common causation and damage issues.

Hypoxia, or a lack of oxygen, is the leading cause of brain injury in newborns. During labor, the uterus contracts in order to push the baby through the birth canal. (Pitocin, a drug used to induce labor, intensifies uterine contractions.) Throughout the labor process, obstetrical personnel are able to monitor the fetus’ heart rate and well being through electronic fetal monitoring. (Every labor and delivery unit in every hospital in the country, uses electronic fetal monitoring.) As the labor progresses and the contractions become stronger and more frequent, the baby is exposed to tremendous amounts of stress. As the stress mounts, underlying problems, such as a knotted or twisted umbilical cord, or a placental problem, become heightened. Time is of the essence when a problem is exposed. Any breakdown in the monitoring process, such as through inattention or misinterpretation, can prove costly. Moreover, proper lines of communication must be maintained between the nurses and the obstetrician. A failure to properly alert the physician or of the physician to respond appropriately, can have critical consequences.

The first step in investigating a brain injured baby medical malpractice case is to have the fetal monitoring strips reviewed by an expert for evidence of hypoxia, whether it was documented by the health care providers, and whether they acted appropriately.

Medical malpractice defendants will try to deflect responsibility by blaming the brain injury on something other than a lack of oxygen. Other excuses include infection and inflammation.
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Newborn.jpgClaiming that medical malpractice premiums being charged to obstetric physicians were becoming dangerously high, in 1988 the Florida Legislature enacted legislation creating the Florida Birth-Related Neurological Injury Compensation Association (“NICA”) (Florida Statutes 766.301 – 766.316). The Legislature’s stated intent was to reduce medical malpractice claims by providing “compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation.” Section 766.301(2) Florida Statutes (1988).

NICA sounds good on paper. However, in practice NICA all too often falls short for the neurologically injured infants who require a lifetime of care, and their families.

The differences between the type and amount of compensation available under NICA and a medical malpractice claim can be substantial, with the upside of a successful malpractice claim being of far more benefit to the victim. However, NICA is the exclusive remedy for claims meeting its requirements. In addition, although NICA is a no-fault system, it is administered in an adversarial way to deny and limit benefits, including making families first seek and exhaust benefits under private insurance policies and government programs, an often daunting task under circumstances for less trying than while dealing with the needs of a brain-injured child. There are numerous other hurdles that make NICA far less appealing in practice than in theory.
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Videotape.jpgMost business establishments today maintain some form of video surveillance to capture events, including accidents and assaults, that happen in and around their property.

The key to resolving premises liability claims fairly to all concerned — the injured person and the property owner — is by determining fully what happened.

Frequently, the information has been captured by the videotape camera(s).

Since the videotape is always in the hands of the target defendant, shouldn’t it always be made available to the plaintiff? The answer is, It depends.

In Osmulski v. Oldsmar Fine Wine, Inc., So.3d , 37 FLW D1578 (Fla. 2nd DCA 6-20-2012), the appellate court ruled that the defendant was not obligated to preserve the videotape of the accident without a request from the plaintiff. It ruled this way even though the defendant knew immediately of the accident and it was reasonably foreseeable the plaintiff would bring a claim to be compensated for her serious wrist injury (which required two surgeries and needed at least one more). By the time the request was made, after pre-suit negotiations had failed, the videotape had been deleted.
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crushed vehicle.jpgFault is an essential element of proof in every Florida personal injury negligence case, including motor vehicle accident cases. To recover for losses (economic and property) and personal injuries, the complaining party must prove that his/her damages were caused by another party’s negligence.

Although evidence of who was ticketed by the investigating law enforcement officer may have bearing in pre-trial settlement discussions, the evidence is inadmissible in civil court. Moreover, for traffic infractions that require a court appearance, per Florida Statute 318.19, no contest or not guilty pleas followed by an adjudication of guilt, prevent admissibility of the adjudication in the civil trial. Finally, for some minor infractions, a guilty plea, per Florida Statute 316.650(9) cannot be used as evidence in the civil case.

In some instances a traffic court guilty plea can can be admissible in civil court to prove fault. When a traffic defendant pleads guilty to (1) Any infraction which results in a crash that causes the death of another; and (2) Any infraction which results in a crash that causes “serious bodily injury” of another as defined in s. 316.1933(1), the pleas are admissible in a civil trial. See Mackey v. Reserve Ins. Co., 349 So.2d 830 (Fla. 1st DCA 1977) (A guilty plea to one of the traffic offenses enumerated in F.S. 318.19 is admissible in civil court.)
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car-insurance-policy.jpgThe only motor vehicle insurance coverages the owner of a vehicle registered in Florida must maintain are Personal Injury Protection (PIP) and Property Damage – Liability. Nothing else is required to lawfully operate a vehicle in Florida.

However, if the vehicle owner or a consensual driver of the owner’s vehicle causes an accident involving injury or death, these basic coverages will not prevent the owner from losing his drivers license and having all vehicle registrations suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) Florida Statutes.

There is only one type of insurance coverage that can prevent these these things from happening: Bodily Injury Liability (a/k/a BI). Section 324.021 (7) Florida Statutes. (The Florida Department of Motor Vehicles is responsible for suspending the DL and registrations. It’s current policy is that neither action will be taken until a judgment is entered against the vehicle owner. This requires that a lawsuit be pursued to completion against the vehicle owner.)
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people.jpgBy failing to comply with statutory (and regulatory) (deJesus v. Seaboard Coast Line Railroad, 281 So.2d 198 (Fla.1973)), industry (Seaboard Coast Line R. Co. v. Clark, 491 So.2d 1196 (Fla. 4th DCA 1986), and company safety standards (Steinberg v. Lomenick, 531 So.2d 199 (Fla. 3d DCA 1988), rev. denied, 539 So.2d 476 (Fla.1988) and Mayo v. Publix Super Markets, Inc., 686 So.2d 801 (Fla. 4th DCA 1997)), financial institutions can be held accountable in civil damages to those whose injuries and death — decedent’s survivors are compensated — were proximately caused by crimes associated with the use of ATMs and night cash depositories.

Statutes & Regulations
Florida Statutes 655.960-655.965 contain some safety standards, but are limited in impact by 655.961, which provides: “A violation of the provisions of ss. 655.960-655.965 or any regulation made pursuant thereto does not constitute negligence per se.” Electronic Funds Transfer Act (Regulation E) and the Bank Protection Act (Regulation P) (12 CFR Section 216.1) are federal laws dealing primarily with matters related to the security of the ATMs themselves and to fraudulent transactions, rather than to ATM users’ safety.

Industry Standards

  • Adequate lighting at and around ATMs. The typical minimum standards, including some mandated by law, are 10 foot-candles within five feet of the ATM, and two foot-candles 50 to 60 feet away from the ATM, measured at three feet above ground (Ellis 1996; CUNA Service Group 1999; Illinois Office of Banks and Real Estate 1999). Because these standards can leave gaps in coverage due to factors such as shadows, light-source direction, a qualified lighting designer should plan ATM lighting.
  • Landscape and design for good visibility. Use slow growing shrubbery and plants and trim often. Objects that obstruct views, such as dumpsters, should be removed. Hidden alcoves should not be used.
  • Install mirrors on ATM and in surrounding areas.
  • Install ATMs where there is natural surveillance. In places with a lot of routine vehicle and foot traffic. Experts recommend visibility from three sides.
  • Install ATMs in police stations.
  • Relocate, close or limit hours of operation in high risk locations.

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scales of justice.jpgClaims under Florida law for wrongful death are brought by the decedent’s personal representative for the benefit of the decedent’s survivors and estate. Florida Statute 768.20. A PR has the statutory authority to enter into wrongful death settlements. However, if the survivors dispute the settlement amount or apportionment, due process dictates that they be given the opportunity to present their positions in open court for a judicial determination. § 768.25, Fla. Stat. (2011); Walker v. Bailey, 89 So.3d 297 (Fla. 5th DCA 2012); Dudley v. McCormick, 799 So.2d 436, 441 (Fla. 1st DCA 2001); Pearson v. DeLamerens, 656 So.2d 217, 220 (Fla. 3d DCA 1995).

In the Walker case, the parents of a deceased 15 year old child disagreed as to how much each should receive from the wrongful death action settlement. The decedent’s mother had been appointed PR. She petitioned the court for an apportionment in her favor and set the matter for hearing. The father did not respond to the petition. Before the matter was heard, the judge issued an order awarding 100% of the money to the mother. The father moved for a rehearing, arguing the right to present evidence regarding distribution. The court summarily denied the motion. An appeal to the 5th DCA followed. The DCA reversed the lower court’s ruling and remanded (sent back) with instructions to the trial judge to take evidence on the matter.
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law books.jpgIndividuals in Florida under 18 years of age, considered minors, do not have the legal capacity to settle personal injury claims or control the settlement proceeds. Minors are typically represented in their cases by one or both parents, who, by operation of law, are their legal guardians. In the absence of a parent or where the suitability of a parent is in question, a court can appoint someone else. In some instances, another person, like a grandparent, has already been appointed legal guardian by a court. The legal guardian chooses the lawyer who will handle the personal injury case.

Whether and to what extent further court involvement is required, depends on for how much money the case is settled. In some instances the legal guardian can settle the case without court intervention, while, in others, the court becomes deeply involved. Court involvement adds delay and costs. What follows is a chart setting forth the requirements:

Court Approval of Settlement Required:

  • Gross Settlement is $15,000 or less – No, unless a lawsuit has been filed, then yes. Sections 744.301(2) & 744.387(3)(a) Florida Statutes.

    Court approval is obtained by filing a Petition for Approval of Minor’s Settlement with the Court. The Petition must contain details of the case regarding the issues of liability and damages, the amount of the settlement, and the amount of attorneys’ fees and costs. In many instances, the Court will approve the settlement without a hearing.

  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes. Section 744.387(3)(a).
  • Gross Settlement in excess of $50,000 – Yes. Section 744.387.

Need Legal Guardianship/Guardian of the Property Appointed:

  • Gross Settlement is $15,000 or less – No.
  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes, but only if the Net settlement (after gross settlement is reduced by attorney’s fees and costs) exceeds $15,000. Section 744.387(2).
  • Gross Settlement in excess of $50,000 – Yes, but only if the Net settlement exceeds $15,000. Section 744.387(2).

The guardian of the property, usually the legal guardian, is responsible for signing releases and collecting the net settlement proceeds. However, the court retains sole jurisdiction to determine the allocation and use of the minor’s money, including as to how it should be invested for safekeeping until the minor reaches the age of majority. Until majority, the legal guardian needs court approval to touch the minor’s money. The Court is supposed to consider what is in the best interest of the minor when determining if or how the proceeds can be used.
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scales of justice.jpgFlorida Statute 768.21(8) bars adult children (25 and above) from recovering for lost parental companionship, instruction, and guidance and for mental pain and suffering resulting from the death of a parent through medical malpractice. See Florida Statute 768.18(2) for the definition of minor children. The preclusion is an exception to the rights of survivors as set forth in 768.21(3). (See this blog for a handy breakdown of 786.21: Outline of Compensation for “Survivors” Under Florida’s Wrongful Death Act.)

The exception is outrageous, the consequence of powerful business interests putting Profits Before People. It has been challenged. The challengers have been defeated. See Mizrahi v North Miami Medical Center, Ltd., 761 So.2d 1040 (Fla. 2000). Florida is the only state in the union with this primitive exception.

Is there another way for adult children to obtain justice through the civil justice system? At least one South Florida lawyer claims to have obtained a high six-figure confidential settlement under the theories of fraud and intentional infliction of emotional distress.

The elements of a cause of action for fraud are:

  1. Defendant made a false statement regarding a material fact;
  2. Defendant knew or should have known the representation was false;
  3. Defendant intended that the representation induce plaintiff to act on it; and
  4. Plaintiff suffered damages in justifiable reliance on the representation.

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