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legal document.jpgMuch was published in 2011 by The Miami Herald in its multi-part exposé, Neglected to Death – see this blog, Nursing Home/Assisted-Living Facility Negligence – Shame on Governor Scott and Florida Legislature, for links to some of the articles – with regard to the horrible conditions existing in many of Florida’s nursing homes. One of the points made is that state regulators have been unwilling or unable to regulate the homes and punish the worst offenders.

Private lawsuits are another avenue for exacting punishment against negligent and grossly negligent operators. However, a common drawback to this remedy is that many of the homes operate without the financial means to pay for their negligence, by not maintaining adequate liability insurance and shielding themselves behind layers of shell corporations. This is certainly the case with many of the smaller facilities.

In recent times, another barrier has come in the way of fully and adequately punishing wrongdoers. Arbitration.

Traditionally, victims harmed by nursing home negligence have sought their remedy through the courts, with juries making the final call on the issues of fault and damages. Arbitration removes these decisions from citizen jurors, turning them over, instead, to costly arbitrators. Business interests prefer arbitration, which is looked upon with disfavor by victims’ lawyers.
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government cut2.jpgPassengers and seamen seeking to be compensated by vessel owners for personal injuries must show that the accident was caused by a condition onboard which makes the vessel unseaworthy. (Employees may also seek compensation against their employers under the Jones Act.) Unseaworthiness is a modified negligence-based system, rather than one of strict liability, meaning that injured parties have the burden of proving that an unseaworthy condition was the proximate cause of the injury. Edynak v. Atl. Shipping, Inc.., 562 F.2d 215, 222 (3d Cir., 1977).

One of the main differences between the purely negligence-based system and the unseawothiness system, and perhaps the most severe limitation on the doctrine of unseaworthiness, is that only a “condition” renders a ship unseaworthy, and that isolated, personal negligent acts are categorically excluded as a basis for liability on the part of the shipowner. Usner v Luckenbach Overseas Corp., 400 U.S. 494, 500 (1971); see also Edynak, 562 F.2d at 224 (“[U]nseaworthiness is a condition, not an act.”); Daughdrill v. Ocean Drilling & Exploration Co., 709 F. Supp. 710, 712 (E.D. La. 1989) (“[A] vessel is not deemed unseaworthy because of an isolated act of the crew, for that would destroy the distinction between unseaworthiness and negligence.”).
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Insurance companies make money by paying out less in claims than they receive in premiums. As long as premium rates are fairly regulated, healthy competition exists within the industry to keep rates in check, and carriers operate in good faith with regard to the claim process, there is nothing wrong with carriers making respectable profits.

Insurance premiums are regulated by the state government. Arguably, the carriers’ rate requests are given too much deference by the governing authorities. Considering the carriers’ financial resources and the pro-business/anti-consumer climate in Tallahassee, with a Governor Scott and the House and Senate in Republican hands, this is not a surprise.

Competition among carriers is brisk, although it is curious how similar their rates are and how the premiums are always at or near the maximum levels allowed by law.

All carriers try to pay as little as possible on all claims. The carriers that seek this outcome through fair and honest dealings should not be faulted. There is nothing wrong with thorough and expeditious fact gathering and inquiry.

Unfortunately, not all carriers handle claims in good faith.

An insurance policy is a contract been the insured and the insurer/carrier. Certain obligations are imposed on each party to the insurance contract. The insured must pay the premium and cooperate in the claims process, while the carrier must process claims in good faith and pay the proper amount on legitimate claims.

One of the tools at the disposal of carriers to gather information about claims is the Examination Under Oath, or EUO. An EUO is an oral examination conducted under oath by an insurance company of an insured making a claim under a policy. A carrier’s right to conduct the EUO is a matter of agreement between the insurer and the insured. Its terms will be set forth in the insurance policy.
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worker2.jpgTwo legislative sessions have passed since State Senator Chris Smith, a Democrat, whose District 29 encompasses parts of Broward and Palm counties, voted with Republicans to eliminate reasonable fees from the state’s workers’ compensation system for claimants’ attorneys. The purpose of the bill was to keep injured workers from being able to fight for their rights. It has worked as expected.

The bill approved by Senator Smith replaced a statute that required employers and their insurance carriers to pay claimants’ attorneys a “reasonable attorney’s fee” for successfully securing wrongly denied workers’ compensation benefits. This was done very simply by removing the word reasonable from the statute, then imposing arbitrarily low caps on fees regardless of the time, effort, and cost invested to win the case.

Not surprisingly, the legislature placed no caps on defense attorney fees, the amount employers and insurance carriers could paid their attorneys to defend cases, win, lose, or draw. A good example of this happened in Jennifer Kauffman v. Community Inclusions, Inc./Guarantee Insurance Company, a case in which the insurance company paid its attorney $14,720 in a losing cause, while the successful claimant’s attorney was limited by the statute to a fee of $648.41 for 100.3 hours of work, or $6.48 per hour. (Inexplicably, the Florida Supreme Court refused to consider on appeal the challenge to the constitutionality of the fee.)

This is the type of outcome the bill was designed to create. This bill was supported by Senator Smith, the only Democrat Senator to do so. Even some moderate Republicans voted against it!!!

Hardly a ringing endorsement for the rights of Florida’s working men and women.

The vote came on the last day of the 2009 legislative session. Because of the votes against by some moderate Republicans, two votes were needed from Democrats to gain passage. Those votes were obtained. However, within minutes of the vote, the other Senator changed her mind and expressed a desire to vote against the bill. Procedurally, this could be accomplished, however, it required Senator Smith to vote to allow a re-vote. He refused to do it. In essence, then, Senator Chris Smith was the deciding vote for the law that has eviscerated the rights of injured Florida workers.

Not surprisiningly, then Governor Charlie Crist failed to veto the bill.

Following this debacle on the Senate floor, I engaged in email communications with Senator Smith. He asked for my views on the subject of carrier-paid attorneys fees in workers’ compensation cases. I told him what I thought. He indicated that he would work with his colleagues to gain passage of legislation to moderate the harsh consequences of the 2009 law. I told him that his chance to do the right thing was in 2009, that the odds of getting Republicans to back off from their major victory, one that set back the rights of injured workers more than any other in the 80+ years since a workers’ compensation system was instituted in Florida, were slim to none.

My assessment has proved correct.

Periodically after our initial communications, I would ask Senator Smith how his efforts to even the playing field were going. I never received a response. Not surprisingly, nothing was accomplished in 2010 or 2011 to moderate the bill, and, to my knowledge, nothing is on the 2012 legislative agenda either.

(For what it’s worth, at the time of his vote in 2009, Senator Smith was employed by a law firm which derived a good portion of its income from representing workers’ compensation insurance companies, although Mr. Smith was not himself a workers’ compensation practitioner. As of the posting of this blog, he remained an employee of the same law firm.)

This is the reality: as long as Republicans control the Florida Legislature, nothing will be done legislatively to change the law. If change is to come, it must come from the courts, the Florida Supreme Court, in particular. Sadly, this court seems to be cowed by the overbearing might of right-wing politics.
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people.jpgFlorida Statute 440.205 is supposed to protect employees from being terminated for making workers’ compensation claims. Making a claim can be as simple as reporting an accident. It does not require the filing of a formal Petition for Benefits with DOAH.

Proving a claim for wrongful termination can be difficult. Florida employers are not required to modify work duties or hold jobs open while employees recover from injuries, and Florida is an “At Will” employment state, a legal principle that allows employers to terminate employees at will, for no reason at all. (Thankfully, in addition to the protections of 440.205, At Will is constrained by the U.S. Constitution’s prohibition against discrimination based on age, race, and religion. Whistleblowers, individuals who report illegal activity, also are protected against At Will termination. Ironically, it is often safer for employers to fire employees for no reason at all than to fire for particular reasons.)

Employers hide behind these protections when accused of wrongful termination. In appropriate situations, they should be challenged.

An employer found to have violated 440.205, can be liable for civil damages such as lost wages and emotional distress, and subject to criminal fines as a second degree misdemeanor.
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government cut2.jpgMillions of passengers travel annually on cruise ships sailing from Florida ports. Thankfully, most of the voyages are uneventful in terms of negative events. However, some passengers do suffer serious personal injuries and even death through the fault of the cruise ship companies.

General Maritime Law governs cases involving cruise ship passengers, Everett v. Carnival Cruise Line, Inc., 912 F.2d 1355 (11th Cir. 1990), including for injuries and death occurring during shore excursions, so long as it happens during the “course of the cruise.” Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11th Cir. 2004); Howard v. Crystal Cruises, Inc., 41 F.3d 527 (9th Cir. 1995). Common reasons for holding cruise lines liable for shore excursion accidents are fault in screening, hiring, and retention of tour operators. Fojtasek v. NCL (Bahamas), Ltd., 613 F.Supp. 2d 1351 (S.D. Fla. 2009); Smolnikar v. Royal Caribbean Cruises Ltd., — F.Supp. 2d — (S.D. Fla. 2011).

General Maritime Law holds a shipowner to a duty of reasonable care under the circumstances. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). With regard to dangers or risks that are not apparent and obvious, a cruise line has a duty to warn a passenger. Luby v. Carnival Cruise Lines, Inc., 633 F.Supp. 40 (S.D. Fla. 1986) aff’d 808 F.2d 60 (11th Cir. 1986).

Here is a checklist of other important considerations for cruise ship passengers:

Statute of Limitations/Notice of Accident: The courts have given the cruise ship companies some leeway in dictating how long harmed passengers have to bring claims. The restrictions will be written into the passenger ticket/contract. Typically, the statute of limitations is set at one year, while the time period for notifying the cruise ship company of an event is 6 months. This means that notice of the harm must be given to the cruise ship company within 6 months of the event and that a lawsuit must be brought against the company within 1 year of the event. The failure of a claimant to meet either of these conditions will likely bar the claim entirely.
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doctor.jpgUnder Federal and Florida law, the medical records of nursing home residents are available to a variety of duly authorized individuals and representives. Interested parties must know their rights to keep from being deterred by nursing homes in their quest for the records. This blog summarizes the laws that can be utilized to obtain the records.

Section 164.502(g) of Title 45, Subtitle A, Code of Federal Regulations (part of HIPAA), provides that nursing homes must treat any person who has authority to act on behalf of a deceased individual as if that person was the deceased individual.

Section 400.145(1) of the Florida Statutes declares that nursing home records shall not be considered as part of an estate and are to be made available to a spouse, guardian, surrogate, or proxy prior to administration of an estate.

Both HIPAA and 400.145(1), Fla. Stat. also require nursing homes to make records available even though the person is still alive. Section 164.502(g) of the C.F.R. provides that nursing homes are required to disclose records to any person authorized to act on behalf of an individual with regard to health care. Section 400.145(1) of the Florida Statutes requires the release of nursing home records to any spouse, guardian, surrogate or proxy for a resident who has not died.

Finally, Section 765.401 of the Florida Statutes describes the authority of a “proxy” to act on behalf of an incapacitated person. A proxy is defined as including the patient’s spouse, an adult child of the patient, a parent of the patient, and even a close friend of the patient.
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dollars.jpgAs the 2012 Florida legislative session is about to begin, Corporate Florida is rolling out its guns to prepare for its annual assault on the civil justice system. Although packaged as an effort to benefit consumers, make no mistake that the true goal is to maximize corporate profits at the expense of people. Profits over People.

PIP is one of the main targets in Corporate Florida’s high powered sights this session.

Associated Industries of Florida is one of Corporate Florida’s most aggressive players in the never ending war between profits and rights. It was in the forefront of the assault on Florida’s workers’ compensation system that has resulted in less support for injured workers today than 10 to 20 years ago. PIP is next.

On November 28, 2011, the Miami Herald published an editorial by a vice president for governmental affairs at Associated Industries, in which various proposals were made for revamping the PIP system. I will respond to each proposal.

Proposal: “Allow insurance companies adequate time to investigate suspicious claims.”
Response: Under current Florida law, PIP insurance companies have at least 65 days to investigate claims before a lawsuit for breach of contract can be filed. This alone is adequate time to investigate a claim, but in reality carriers have much more time to investigate because in everyday practice PIP lawsuits are rarely filed within six months of an accident. During this period of time, carriers have many ways to investigate claims, including examining insureds under oath and having medical exams performed by hand chosen doctors.

Carriers have the right to deny claims that they feel are suspicious. If a claim is denied, an insured may drop the claim or file suit. Through legal proceedings, each side has the chance to fairly present its case to a judge and jury. What’s unfair about that?

Proposal: “Cap attorney fees in no-fault cases to eliminate the incentive for frivolous litigation.”
Response: This is a shell-game proposal. Carrier’s know that fee caps will discourage lawyers from pursuing legitimate claims. It is a ploy the insurance industry has used with great success in gutting the rights of workers’ compensation claimants. Carriers also know that there is no such thing as a frivolous lawsuits crisis, only a successful propaganda campaign to make the public believe there is. As I have blogged here before – Debunking The Myth About Frivolous Lawsuits (Florida) – Installment #1; Debunking The Myth About Frivolous Lawsuits (Florida) – Installment #2 ; South Florida Trial Lawyer – Tort Reform (“Deform) & What It Means – the concept that lawyers can make money pursuing frivolous claims defies logic and reason. As every lay person who has battled with an insurance carrier knows, it is hard enough to succeed with legitimate claims much less bogus claims. The civil justice system has created numerous filters to weed out even weak cases, so the notion that baseless cases somehow make it through the filter system is nothing short of disingenuous. Quite simply, Corporate America does not like being answerable to individuals in courts of law. The frivolous lawsuits fallacy is nothing short of a concerted campaign to bar the courthouse doors against individuals seeking redress. Profits over People.
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torah.jpgAmerica’s civil and criminal justice systems are grounded on the Mosaic Code. The Law, contained in the Torah’s Books of Exodus, Leviticus, Numbers, and Deuteronomy, pre-dates Roman laws and is the first to incorporate humanism and the democratic spirit into a written Judicial code. Four centuries before Christ, the Jews devised a legal system based on the dignity of man and individual equality before the law. Individuals accused of crimes were considered innocent until proven guilty, had the right to confront their accusers, were allowed to testify in their own behalf, were not subject to double jeopardy, and could appeal convictions.

A thorough and interesting book containing observations on this subject and many more about Jewish history is Max Dimont’s Jews, God & History. Reproduced here are some of Mr. Dimont’s insightful observations on the subject of this blog:

  • “The Torah was a bold leap into the future, a giant stride ahead of anything existing at that time. Its concept of equality before the law, a law based on the written code, seems to be a Semitic innovation.”
  • “The Mosaic Code … was the first truly judicial, written code, and eclipsed previously known laws with its all-encompassing humanism, its passion for justice, its love of democracy.”
  • “These laws were essentially divided into three categories: those dealing with man’s relation to man, those dealing with man’s relation to the state, and those dealing with man’s relation to God.”
  • “The Mosaic Code laid down the first principles for a separation of church and state…. In the Mosaic Code the civil authority was independent of the priesthood…. The priesthood was charged with the responsibility of keeping the government within the framework of Mosaic law, just as the United States Supreme Court is not above the federal government but is, nevertheless, charged with the responsibility of keeping it within the framework of the Constitution. Moses also laid the foundation for another separation, which has since become indispensable to any democracy. He created an independent judiciary.”
  • “There is a curious resemblence between the philosophic outlook of American constitutional law and that of Mosaic law. The federal government has only the powers granted to it by the Constitution. The individual states can do anything not specifically denied to them. In essence, the Mosaic law also established the principle that the Jews could do anything not specifically denied to them. Instead of saying, ‘”Do such and such a thing,”‘ the laws of Moses usually say, ‘”Don’t do this or that.”‘ Even where the Mosaic law makes a positive statement, it is often either an amendment to a negative commandment or else hemmed in by a negative admonition, saying, in effect, ‘”When you do this, then don’t do that.”‘ The Ten Commandments, for instance, list only three do’s but seven don’ts. The three positive Commandments are: ‘”I am the Lord thy God”‘; observe the Sabbath; and honor your parents. The seven don’ts leave little doubt as to what one is not supposed to do. By fencing in only the negative, Moses left an open field for positive action. This allowed the Jews great flexibility. As long as they did not do anything specifically prohibited, they could, like the individual American states, do anything they wanted to do.”

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(Also read this blog: DCA Limits EUO Abuse)

law books.jpgMost Florida-issued insurance policies allow carriers to examine their insureds and omnibus insureds* (individuals unnamed but covered under a policy) under oath during the claim process. Any failure by the insured to cooperate with this condition of the policy may result in a denial of coverage.

In every EUO, carriers look for ways to deny and limit claims. For example, questions will be asked seeking to uncover substantive misrepresentations in the insurance application. Carriers also try to frighten insureds into dropping claims. One popular tactic is by indicating that the EUO is being conducted by the company’s “Special Investigatve Unit,” an effort to make the procedure look like a law enforcement action.

Other tactics include:

  • Scheduling EUOs during work hours on short notice
  • Requiring personal attendance at obscure, inconvenient, and far away locations (e.g., Blue Lagoon Drive, in Miami)
  • Videotaping the EUO
  • Seeking contact information of every possible witness
  • Behaving rudely
  • Asking endless irrelevant questions that invade privacy and make what should be a 15 minute examination last hours

Thankfully, there are limits on the carrier.

The claimant may have his/her lawyer present during the EUO. Moreover, since the EUO is not controlled by the Florida Rules of Civil Procedure or the Florida Rules of Evidence, like a deposition would be, the claimant and lawyer are far less constrained in their conduct. For example, they may confer during the questioning.
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