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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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clock.jpgThe outside limit in Florida for suing for medical negligence is seven (7) years from the date of the incident or occurrence giving rise to the action. This time limit is set forth in Florida Statute 95.11(4)(b) and is known as the Statute of Repose.

Florida’s Statute of LImitations for medical malpractice, also part of 95.11(4)(b), is 2 years from the time the malpractice “is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued….”
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people.jpgComparative Fault — see Florida Statute 768.81 –and the Open & Obvious Doctrine are legal concepts that play a role in many premises liability cases.

Under the principle of Comparative Fault, the jury is asked to apportion fault among the parties to a lawsuit, plaintiff and defendant(s), and others who may not even be parties to the lawsuit. The jury must also place a monetary value on the damage sustained by the plaintiff. These two findings make up what is known as the [jury’s] verdict. Interestingly, a jury verdict is not the same thing as a final judgment, issued by judges, and the final numbers between the two can be significantly different.

Here is a rudimentary example to demonstrate the interplay between verdicts and judgments, and illustrate the principal of comparative fault: Mr. Jones, while visiting a friend’s condominium complex, trips on a large crack in a poorly lit underground parking lot while walking into the building. He falls hard to the ground, landing on his chin and head, sustaining a severe laceration and a concussion. Fire Rescue is summoned and transports Mr. Jones to the hospital. The underground lot is owned by a condominium association that has hired a management company to maintain the premises. It is learned that the large crack has existed for years and has caused other accidents. Unable to settle out of court, Mr. Jones sues the condo association and the management company for negligence. The jury returns a verdict in the amount of $500,000, but apportions fault at 75% (condo. association/management company)/25% (Mr. Jones). Based on the concept of comparative fault, the final judgment for Mr. Jones will be $375,000, or 75% of the total damages found by the jury. (In most cases, the judge has much more to consider than simply performing basic math in reaching a final judgment.)

Until 1973, Florida applied the law of contributory fault in all negligence cases. Under this concept, the plaintiff would be completely barred from making any recovery if it was determined that he or she was at fault in any way, even only 1% at fault. In our example, this would mean that Mr. Jones, although only 25% at fault, would receive nothing for his injuries.
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ATM.jpgDue to flawed record keeping, it is impossible to know with confidence how often violent crimes — murder, kidnapping, battery or robbery — are committed in Florida in conjunction with obtaining cash involuntarily from a victim’s ATM. Most law enforcement agencies do not maintain a separate category for ATM crime. Instead, it is listed in more general categories such as robbery, homicide, and sexual battery/rape. The Universal Crime Report (UCR) forms do not have a place to note that a forced ATM withdrawal has taken place.

Despite the lack of information, ATM-related crime is believed to be high. Put another way, ATM-related crime is foreseeable.

The foreseeability of a harmful event happening is an essential element of every personal injury case. For a defendant to be held accountable under civil tort law, the victim, or Plaintiff, must prevent evidence on the issue of foreseeability.

Crime statistics are a way of proving foreseeability in civil tort actions for injuries or death resulting from inadequate security or safety measures. See Holley v. Mt. Zion Terrace Apartments, Inc., 382 So. 2d 98 – Fla: Dist. Court of Appeals, 3rd Dist. 1980.
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worker2.jpgThe only long term wage loss compensation available under Florida’s Workers’ Compensation system is permanent total disability (PTD). The benefit is defined in Florida Statute Section 440.15(1).

Unless the claimant sustains one of the scheduled injuries outlined in 440.15(1)(b), the only way to qualify for PTD is for a Claimant to “establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence.” See the paragraph below the scheduled injuries in 440.15(1)(b).

The determination is made after, not before, the claimant reaches maximum medical improvement (MMI) – defined in 440.02(10) as follows: “‘Date of maximum medical improvement'” means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.”
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calculator.jpgPeople hurt on the job can often bring damage claims against their employer under workers’ compensation and third parties responsible for causing the accident. Normally, workers’ compensation medical and lost wage benefits are provided to the injured worker before the third party case is resolved.

Florida Statute 768.76 provides that amounts owed by negligent third parties are offset by benefits injured persons receive from collateral sources. However, the offset does not apply to benefits that must be repaid. The right a source has to be repaid is known as subrogation.

Workers compensation insurance carriers have subrogation rights pursuant to Florida Statute 440.39.
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alcohol.jpgAdults hosting house parties are well advised to be hyper vigilant in preventing alcohol or drugs from falling into the hands of minors. The negative consequences of failure, outlined in Florida Statute §856.015, can be substantial.

An adult who fails to keep a minor from possessing or consuming alcohol or drugs commits a second degree misdemeanor, punishable by a fine up to $500 and 60 days in prison. Where harm comes to a minor or others due to a violation of 856.015, the offense is a first degree misdemeanor, punishable by a fine up to $1000 and one year in jail.
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maze.jpgMedical bills are a strong measure of injuries and future expenses. However, due to insurance and governmental (e.g., Medicare) discounts, bills are rarely paid in full. Where the medical provider is prohibited, by contract or law, from balance billing, Plaintiffs and Defendants contest which medical expenses, the full charges or the reduced payments, may be presented to the jury.

Plaintiffs argue that total charges give a full picture of their bodily injuries and future medical expenses. Defendants endeavor to limit admissibility to the discounted amounts. The outcome depends on who pays the bills.

Where the discounts are contractual write-downs from private insurance, the trial court should allow evidence of the total charges. In other words, Plaintiff may “board” all billed charges.

If a jury, in the face of discounted medical expenses, awards the Plaintiff the full medical expenses, doesn’t the Plaintiff derive a windfall? No. In Goble v. Frohman, 901 So.2d 830 (Fla. 2005), the Florida Supreme Court decided that such verdicts are to be reduced post-trial by the contractual discounts between the providers and private insurance company. Here is an example of how it works: if the discounted payment is $35,000 on total charges of $100,000, and the jury awards $ 100,000 for incurred medical expenses, the verdict will be reduced post-trial by $ 65,000 for a final judgment of $ 35,000.

This is fair. The jury, which does not hear about the discounted payment, is allowed to render its verdict based on relevant, probative evidence, while the judge, post-trial, adjusts the verdict so that the Defendant pays no more than was received by the medical providers.

This raises another question. If insurance has paid and the patient therefor owes the provider nothing, what is fair about a final judgment which awards the Plaintiff the amount paid by the insurance company? Simple. The Plaintiff must repay the money to the insurance company.

In essence, then, the most important aspect of boarding full medicals is for the jury to award the correct amount for pain and suffering damages and future medical expenses.
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