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legal document.jpgIt is customary in Florida for those wishing to settle workers’ compensation cases to be required to execute a voluntary resignation document. Typical resignation language will make it virtually impossible for the former employee to maintain a viable claim for unemployment compensation benefits. To avoid this consequence, language must be added to the effect that entitlement to unemployment compensation is not being waived,

This action led to a positive outcome for the applicant in Sullivan v. Florida Unemployment Appeals Commission (1st DCA; opinion filed May 15, 2012). In its initial form, the resignation language associated with the workers’ compensation settlement was silent on the issue of unemployment compensation. Ms. Sullivan refused to sign the form. Accordingly, her lawyer added the following language:

“Employer/Carrier will not contest Claimant’s application or request for unemployment benefits.”

The employer did not contest the language, allowing it to become part of the overall workers’ compensation settlement agreement. Thereafter, Ms. Sullivan applied for UC benefits. She was denied at the hearing level and by the Unemployment Compensation Appeals Commission. However, the 1st DCA reversed those holdings, siding, instead, with Ms. Sullivan.

The reasoning behind the holding in Sullivan is set forth in Rodriguez v. Florida Unemployment Appeals Commission, 851 So. 2d 247 (Fla. 3d DCA 2003):

Employers are to be held accountable for their actions and representations to employees, particularly when modifying terms of at-will employment and when seeking participation in voluntary layoffs, buyouts or other company initiated programs. Here [the claimant] received verbal and written representations from [the employer] about the uncertainty of her job and of a buyout package with a list of benefits, as well as assurances of eligibility for other benefits, i.e., unemployment compensation. These assurances by [the employer] were not wrongful but were designed to encourage or induce the acceptance of the voluntary buyout. Given the circumstances here and the liberal purpose of the statute authorizing unemployment benefits, the requirement of “good cause attributable to the employer” was satisfied.

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law books.jpgSecuring the payment of medical expenses is one of the main responsibilities of Personal Injury attorneys. At trial, Plaintiffs must prove (1) that charges are for treatment for injuries at issue in a lawsuit, as opposed to treatment for some other condition, and (2) the charges are reasonable and necessary. See Garrett v. Morris Kirschman & Co., Inc., 336 So.2d 566 (Fla. 1976).

Interestingly, while part (1) requires expert medical testimony, part (2) is established from the Plaintiff’s perspective, rather than from the perspective of a medical expert. See, Id., and Albertson’s, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986).
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crushed vehicle.jpgRear-end crashes represent nearly 25% of all roadway motor vehicle accidents. The natural inclination is to blame the driver of the approaching vehicle, the one that slammed into the rear of the other vehicle. Florida law supports this notion by creating a presumption of fault against the approaching driver.

Law enforcement, the courts, and personal injury lawyers are well-advised to think twice before jumping to this conclusion. They must understand that attentive drivers sometimes crash their vehicles into the rear-end of leading or stationary vehicles in broad daylight through no fault of their own.

Our firm and Domnick & Shevin PL are involved in a lawsuit against a motor coach company and its driver for a client who drove his employer’s passenger bus into the rear of the motor coach. The motor coach was stopped in a through lane without any traffic forcing it to stop or slow down. It did not have a flat tire, run out of gas, or have a mechanical emergency. Our client, who approached from behind in the same lane, had a clear view of the stopped vehicle beginning from approximately 1000 feet away. There were no cars in front of him in any of the approaching traffic lanes. Our client noticed the motor coach from a distance off, but it wasn’t until he was too close to avoid the accident that he perceived it was stopped. Our client sustained catastrophic injuries.

We have hired numerous experts to explain various elements of the case. An engineer will discuss speeds, distances and things of that nature. A trucking expert will describe industry standards and safety issues. Neither of these experts, nor the many doctors who will talk about our client’s horrible injuries and the economist, who will calculate past and future economic damages, are qualified to explain the phenomenon of why a trailing driver can plow into the rear of another vehicle without being at fault.

That is the job of a human factors expert. We have hired one of the best.
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disney1.jpgOur law firm and Domnick & Shevin PL, represent a Disney bus driver who was severely injured in a March 2010 crash with a Mears Transportation Group motor coach near the vehicle entrance to Epcot. He was airlifted to Orlando Regional Medical Center after being pried from the driver’s seat of the bus.

The Mears motor coach was stopped in the right lane of Epcot Center Drive, a few hundred feet short of the Epcot vehicle entrance gate. It was stopped, the driver claims, so she could exit the vehicle to inspect for a noise coming from the area of the left front tire. The vehicle was not disabled.

Not perceiving that that the motor coach was stopped, our client plowed his Disney bus into the rear of the motor coach.

Under Florida law, the presumption is that the trailing vehicle in a rear-end accident is at-fault. The presumption is rebutable, meaning that evidence of fault against the lead vehicle can overcome the presumption.

Florida also applies the comparative fault doctrine to personal injury cases. Under this doctrine, blame is apportioned in accordance with fault. For example, a person 25% at fault may recover up to 75% of his or her damages from other responsible parties. This is more equitable than the contributory fault doctrine, formerly followed in Florida, which denied a recovery to anyone with any responsibility for causing the accident, even as little as 1%.
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cemetery1.jpgIn Florida, civil (in contrast to criminal) claims for wrongful death are made under the provisions of the Wrongful Death Act, laid out in Sections 768.16-768.26 of Florida’s statutes. The Act prescribes the types of damages available for wrongful death and the circumstances by which they may be recovered.

Only survivors and the decedent’s estate may recover damages under the Act.

Wrongful death claims are brought through the decedent’s estate. Following death, an estate is opened in Probate Court and is used thereafter as the vehicle for pursuing claims. A Personal Representative, typically a family member of the decedent or some other trusted individual, is appointed by the court to probate the estate.

Probating an estate encompasses many responsibilities, one of the most important of which is serving the interests of the decedent’s survivors under the Wrongful Death Act.

Survivors (children, spouse, and parents) are not allowed to bring separate lawsuits, or legal actions, against the at-fault party. Rather, their individual claims are brought in one action by the PR through the estate. The PR selects the lawyer to prosecute the wrongful death claims.

PRs have a fiduciary duty to each survivor. See, Section 733.602 Florida Statutes and In re Estate of Wiggins, 729 So.2d 523 (Fla. 4th DCA 1999). Among other things, the fiduciary duty requires PRs to apportion the proceeds for survivors and the estate in a reasonable and equitable manner. Continental National Bank v. Brill, 636 So.2d 782 (Fla. 3rd DCA 1994); University Medical Center v. Ziegler, 625 So.2d 125 (Fla. 5th DCA 1993); Guadalupe v. Peterson, 779 So.2d 494 (Fla. 2nd DCA 2000); and Thompson v. Godson, 825 So.2d 941 (Fla. 1st DCA 2002) review denied 835 So.2d 266 (Fla. 2002).
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scales of justice.jpgOne of the most difficult concepts for our workers’ compensation clients to understand is that they will not receive any monetary compensation through Florida’s workers’ compensation system for pain and suffering. None. Zero. Nada. Zilch.

The notion is counterintuitive. Compounding the difficulty in understanding, much less accepting the concept, is that pain and suffering damages are payable in other types of injury cases – e.g., premises liability, medical malpractice, products liability.

To make sure our clients understand the concept, we begin the discussion at the initial conference and keep it going until the case is brought to a successful conclusion. Even then, the concept never sinks in fully with some of our clients.
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calculator.jpgThe primary responsibility of a plaintiff’s personal injury attorney is to maximize the client’s recovery. Typical recoverable damages include lost wages (past & future), medical expenses, and compensation for pain and suffering (a/k/a non-economic damages).

A damage element often overlooked is the diminished value of a repaired vehicle. No matter how well a repair was done, the vehicle’s value is diminished. Period. The attorney should try to recover the loss for his client. The recovery is supported by Airtech Service, Inc. v. MacDonald Construction Co., 150 So.2d 465 (Fla. 3rd DCA 1963).
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wet floor sign.jpgThe initial question in every premises liability personal injury case concerns the concept of duty. What degree of duty did the landowner (or possessor) owe to the person injured to prevent the accident? Because the next inquiry concerns whether the duty was breached, the answer to the initial question often determines the outcome of these cases. Where no duty is breached, no fault lies. Sometimes the answer to the initial inquiry is clear, sometimes it is not. Due to its importance, duty is frequently litigated although not as much as the issue of breach.

The extent of the duty depends on the person’s status on the property at the time of the accident. The following outline sets forth the various status categories recognized under Florida law and the duty owed under each.

  • Public Invitee. A person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (Example: Family in a public park.) This landowner has the following duties: (1) to correct or warn of dangers that the owner knows or should know of by the use of reasonable care, and which the visitor cannot or should not know of by the use of reasonable care; and (2) to maintain the premises in a reasonably safe condition. (For a fuller understanding of subsection (2), search our blog using the term “Open and Obvious.” Landowners like to claim that because a condition is open and obvious, there is no duty to repair it. This is sometimes correct, but not always.)
  • Business Invitee. A person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. (Examples: A grocery story patron; a paying fan at a Miami Dolphins football game.) Duty: same as for Public Invitee.
  • Licensee By Invitation. A social guest. Duty: same as for Public Invitee.
  • Uninvited Licensee. A person who chooses to come upon the premises solely for his or her own convenience without invitation either expressed or reasonably implied under the circumstances. (Example: teenagers using a private parking as an ad hoc party location.) Duty: To refrain from willful or wanton injury (e.g., to remove any concealed “traps” of which the owner has actual knowledge).
  • Trespasser. A person who enters the premises without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his own convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity. Duty: same as for Uninvited Licensee.

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dollars.jpgThe Florida Legislature has made Personal Injury Protection (PIP) insurance a mandatory coverage for all owners of operational motor vehicles. It is coverage that is designed to pay up to $10,000 in medical expenses and/or lost wages incurred by the insured regardless of fault, hence, the reason why it is commonly called “no-fault” insurance. In some instances, the coverage will apply to others, such as some resident relatives and pedestrians.

Before the policy is written, an insurance application must be completed. Insurance companies rely on the information provided in the application to set premium rates. The greater the risk, the higher the premium. Risk is determined by a number of factors, including the age and driving record of the applicant, and the number of potential individuals covered under the policy.

Section 627.409 Florida Statutes outlines the circumstances which allow insurance carriers to deny coverage. The statute reads as follows:

627.409 Representations in applications; warranties.–
(1) Any statement or description made by or on behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation and is not a warranty. A misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
(a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.

(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.

(2) A breach or violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or application therefor does not void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by any means within the control of the insured.
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car-insurance-policy.jpgThe term “Full Coverage” means different things to different people.

For a vehicle to be registered in Florida, Florida law requires the owner to maintain nothing more than Personal Injury Protection (“PIP”) and Property Damage Liability insurance. PIP covers 80% of medical expenses and/or 60% of wage losses up to a total of $10,000, while Property Damage Liability pays for the damage or loss of property caused by the at-fault driver or owner of the motor vehicle. (The minimum coverage limit for PD Liability is $10,000.)

Neither of these coverages compensates anyone for bodily injury losses, also known as non-economic or pain & suffering damages.

Only Bodily Injury Liability (“BI”) insurance and Uninsured/Underinsured Motorist (“UM/UIM”) insurance compensate for non-economic damages. Neither of these coverages is mandatory, which means that a policy containing one or both of the them costs more than the basic PIP/PD Liability policy. Because of the additional cost, many people forego the coverages.
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Contact Information
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9999 NE 2nd Ave, #304
Miami Shores, FL 33138
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com
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Palm Beach Gardens, FL 33410
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com

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