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car-insurance-policy.jpgOne thing is certain, “full coverage” is not what most people think it is.

The only types of insurance coverage required by law of every owner of a motor vehicle registered in Florida are Personal Injury Protection (“PIP”) and Property Damage – Liability. Period.

There are numerous other types of coverages available under a standard Florida motor vehicle insurance policy, but none of them are mandatory like PIP and PD – Liability. Each of the coverages cost extra money, meaning that an additional premium will be charged for each. Consequently, many people forego the non-mandatory coverages.

PIP (Florida Statute 627.736) covers a combination of 80% of allowable medical charges and 60% of lost wages up to the standard policy limit of $10,000 subject to deductibles (usually $500, $1000, and $2,000), while Property Damage Liability covers vehicle damage caused by the at-fault insured. (The minimum mandatory PD – Liability policy limit is $10,000.) Neither PIP nor PD – Liability provides compensation to anyone for pain and suffering.

Only Bodily Injury – Liability (“BI”) and Uninsured/Underinsured Motorist (“UM/UIM”) (Florida Statute 627.727) compensate for pain and suffering. Neither coverage is mandatory. (Many other states make BI mandatory. For years, consumer advocates have tried to make BI mandatory in Florida, but the insurance industry has fought off the efforts. The members of our law firm believe that if any coverage should be mandatory, it should be BI.)
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cemetery1.jpgWho can be compensated and the types of damages that are available when a person dies through the wrongful act or negligence in Florida of any person or company is prescribed by statute in the “Florida Wrongful Death Act,” sections 768.16 through 768.26. The chart below is a breakdown of section 768.21.

Wrongful Death claims are brought on behalf of statutory “survivors” by the Personal Representative of the decedent’s estate. The Personal Representative, typically a family member and often a survivor, is appointed by the court after due notice is given to all interested parties. The Personal Representative hires the attorney who will bring a claim to recover damages for the decedent’s estate and survivors. Florida wrongful death attorneys handle these cases on a contingent basis, meaning that attorney’s fees are paid only after a successful recovery has been made in the case. The standard within the legal industry is for the fee to be a percentage of the overall recovery, rather than being based on an hourly rate.

Who may recover under the Act and to what extent varies according to the circumstances of each case and can be confusing. There have been many legal challenges to the Act, yet it has survived all challenges essentially intact. At this point in time, it will take action from the Florida Legislature to change the Act.

The goal of this blog is to make the Act understandable. The chart shows the types of damages that can be recovered and by whom. Many of the variations and exceptions are counterintuitive and unfair. For example, a surviving spouse will preclude the recovery of any damages by the decedent’s parents. In addition, the Act gives special consideration to medical providers, in some instances putting them beyond the reach of the law for causing death by medical negligence/malpractice.

Spouse Dies – Surviving Spouse but no Surviving Children
Spouse’s Damages:

  • Loss of Decendent’s Companionship and Protection
  • Mental Pain and Suffering from date of injury
  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Medical and Funeral Expenses due to decedent’s injury/death if paid by survivor

Spouse Dies with Surviving Children and Surviving Spouse
Spouse’s Damages:

  • Loss of Decendent’s Companionship and Protection
  • Mental Pain and Suffering from date of injury
  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Medical and Funeral Expenses due to decedent’s injury/death if paid by survivor

Children’s Damages:

  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Minor children only (under the age of 25 – Section 768.18(2) Florida Statutes), or all children if there is no surviving spouse, may also recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

Parent Dies with Surving Children but no Surviving Spouse
Surviving Children:

  • Loss of Support and Services from date of injury to date of death (w/interest)
  • Future Loss of Support and Services from date of death (at present value)
  • All children may recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

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worker.jpgDuring these challenging economic times, our law firm is seeing a sharp reduction in the number of hours employees are being paid to work. Fewer employees are working overtime and many are seeing their hours reduced below the traditional 40 per week.

There are no state or federal laws mandating minimum work hours for Florida employees. The only obligation Florida employers have to those who work less than 40 hours a week is to pay the state minimum wage – $7.31/hr as of June 1, 2011.

Although employees do not have the right to be employed for a minimum number of hours, they do have the right to be compensated for all on duty time. This may seem like a straightforward proposition, but it is an issue that has given rise to a significant amount of litigation going back to the 1940s.

What we are seeing today is that employees are not being paid while waiting to work versus working. Whether this is proper is a question of fact involving “scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the surrounding circumstances. Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged.” Skidmore v. Swift Co., 323 U.S. 134, 137 (1944). Importantly, there is no principle of law found either in statute or Court decisions precluding waiting time from also being working time deserving of compensation. Armour & Co. v. Wantock et al., 323 U.S. 126 (1944).
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scales of justice.jpgCorporate America has campaigned for more than 30 years to turn the thinking of average citizens against the civil justice system. Sadly, the campaign has worked, fostering views that are contrary to one of the fundamental principles on which America was founded, namely, that the individual should be able to seek redress from the powerful on equal footing. Reference: We the People.

With the hope of encouraging people to resist Corporate America’s dangerous propaganda, this blog gives a primer on the basic issues centering around the Tort Reform debate, or, as I refer to it, Tort Deform.

What is the civil justice system? It is the system individuals and corporations use for suing in civil court to seek compensation for alleged harm caused by other individuals and corporations. The fundamental components of the system are judges, juries, and lawyers for both sides.

What is a “tort”? A tort is harm that a company or a person causes another person either on purpose or because they are negligent. The best known torts involve personal injuries, but can include other types of actions. The Plaintiff is the party who brings the action and is usually seeking monetary compensation.

Aren’t these personal injury or “tort” lawsuits flooding the courts? No. Tort cases make up only 6 percent of the entire civil court caseload and they are decreasing. The National Center for State Courts shows a 21 percent decline in tort filings from 1996 to 2005. Richard LaFountain et al., Examining the Work of State Courts: A National Perspective from the Court Statistics Project (National Center for State Courts 2009) at 1, 2. (The Court Statistics Project is a joint project of the Conference of State Court Administrators, the U.S. Department of Justice’s Bureau of Justice Statistics and the National Center for State Courts.)

  • Only 10 percent of injured Americans ever file a claim for compensation, which includes informal demands and insurance claims. Only two percent file lawsuits. David A. Hyman and Charles Silver, “Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid,”59 Vand. L. Rev. 1085, 1089 (May 2006) (citing Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society 3 (2002));Rand Institute for Civil Justice, Compensation for Accidental Injuries in the United States (1991).
  • Academics generally concede there is no evidence that “frivolous” lawsuits are a problem.
  • In 1999, the Institute of Medicine (IOM) concluded that between 44,000 and 98,000 Americans die each year (and 300,000 are injured) due to avoidable medical errors in hospitals alone. Yet eight times as many patients are injured as ever file a claim; 16 times as many suffer injuries as receive any compensation. The Harvard School of Public Health closely examined 1,452 closed claims and concluded that “[p]ortraits of a malpractice system that is stricken with frivolous litigation are overblown.” David M. Studdert et al., “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” New England Journal of Medicine, May 11, 2006. The study found that most injuries resulting in claims were caused by medical error, and that those that weren’t were, nevertheless, not “frivolous” claims.
  • In 2005, tort jury and bench trials together constituted 1.3 percent of all general civil dispositions in 79 jurisdictions reporting and 3.5 percent of all tort dispositions in 104 jurisdictions reporting.

What is “tort reform”? This term refers to laws that benefit the corporate sector. These laws make it more difficult for injured people to sue in civil court, or limit the power of judges and juries to make decisions in tort cases. (See these examples: 2010 Florida Legislature Further Curtails the Rights of Medical Malpractice Victims; Vehicle Owners – Other Than Rental Agencies – Vicariously Liable Under Florida Law.)
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worker2.jpgBecause of the limits on compensation available to injured employees through Florida’s workers’ compensation system, Chapter 440, the preferred remedy in cases involving some negligence on the part of the employer is an action at law for damages on account of such injury or death. In contrast to workers’ compensation, this remedy allows for damage awards based on mental pain and suffering, loss of consortium, loss of the decedent’s companionship and protection, past and future loss of support and services.

Unfortunately, the remedy is rarely available to employees or their survivors against employers. Florida Statute 440.11 sees to this limitation by giving employers workers’ compensation immunity.
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mri-image-brain.jpgMagnetic resonance imaging (MRI) is a test that uses a magnetic field and pulses of radio wave energy to make pictures of organs and structures inside the body. In many cases MRI gives different information about structures in the body than can be seen with an X-ray, ultrasound, or computed tomography (CT) scan. MRI also may show problems that cannot be seen with other imaging methods. It is the standard diagnostic test for viewing the intervertebral discs.

In some instances, contrast material is used to enhance the images made by the MRI. Some of those imaging agents contain the chemical gandolinium. U.S. government regulators have begun warning doctors that this class of injectable can cause a rare and sometimes fatal condition in patients with kidney disease. The Food and Drug Administration is adding its strongest warning label to the imaging agents that contain gandolinium.

If contrast material is used, the technologist will put it in through an intravenous (IV) line in your arm. The material may be given over 1 to 2 minutes.
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greed.jpgThe subject of this blog dovetails nicely with the current Wall Street protests over corporate greed.

It was recently learned that State Farm Insurance raised between $2.4 and $4 million for the 2004 election campaign of an Illinois judge. It was the most expensive race in U.S. judicial history.

The judge, Lloyd Karmeier, won the race to become a member of the Illinois Supreme Court, the highest court in the state. From that perch, he voted to overturn a $1 billion judgment that had been entered against State Farm.*

Losing its case at the trial level, before an impartial jury, it appears that State Farm sought an extra-judicial remedy, albeit cloaked in the garments of a sitting judge.
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capitol-us.jpgFollow this link, Ros-Lehtinen rethinks, to read my letter to the editor published by the Miami Herald on September 29, 2011.

I wrote the letter in response to an article published by The Herald on September 25, complimenting Rep. Ros-Lehtinen for co-sponsoring the Respect of Marriage Act, a law designed to extend rights to gays and lesbians. Instead of being duly impressed with her position, which I support, I was disappointed that she was receiving gushing recognition for coming to a decision, at age 59, that any fair minded person would understand from the earliest days of their ability to reason and consider. By the age of 5 years, each of my two children understood what it has taken Rep. Ros-Lehtinen 59 years to appreciate.
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question.jpgThe legal principle which binds a litigant to the path chosen to right a wrong is known as election of remedies. The principle should not be confused with the procedure of seeking alternative remedies within the same forum, best illustrated by a multi-count complaint asserting various legal theories of recovery.

Although not a common element in most cases, the election of remedies issue does arise with some frequency in connection with workers’ compensation and personal injury cases.

For the most part, it is clear when a worker has been injured on the job. Falling from a roof and being struck by a forklift are clear examples of work related accidents. Under Chapter 440 of Florida’s Statutes, Section 440.11 in particular, most employers with four or more employees will have what is called workers’ compensation immunity for these types of accidents. What this means is that most employees are limited to the remedies available under Florida’s workers’ compensation system.
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maze.jpgInjured Florida workers who seek workers’ compensation medical or indemnity (wage loss) benefits will see and be required to complete a variety of forms. It is important for Claimants to understand and complete the forms properly. Being wrong can lead to serious consequences including the denial of benefits and criminal prosecution for insurance fraud.

We represent injured workers. This blog will discuss the forms from that perspective.

First Report of Injury or Illness (DFS-F2-DWC-1)
This form contains basic factual information, such as a brief description of the accident, contact information of the employee, employer, and workers’ compensation insurance company, wage information, and is submitted to the workers’ compensation carrier and the Division of Administrative Hearings (DOAH), the state agency responsible for administering workers’ compensation cases. It is to be completed as soon after the accident as possible and signed by the employer and, when possible, the injured worker. Injured workers should review the form carefully, especially with regard to the description of the accident, before signing, and obtain an executed copy at that time.
Rule 69L-3.004
Specific Authority: 440.185(2), (5), (9), 440.19, 440.35, 449.591 FS. Law Implemented 440.185(2), (3), (5), 440.207(2), 440.35 FS. History-New 8-30-79, Amended 12-23-80, 11-5-81, 6-12-84, Formerly 38F-3.04, Amended 1-1-87, 4-11-90, 1-30-91, 11-8-94, Formerly 38F-3.004, 4L-3.004, Amended 1-10-05.

Wage Statement (DFS-F2-DWC-1a)
This form is not prepared or signed by the injured worker. It contains the employee’s wage information in order to calculate his/her average weekly wage (AWW). If applicable, the 13 week period immediately preceding the accident will be used to derive the AWW. Otherwise, a series of formulas will be considered, including the earnings of similar employees with the requisite 13 weeks of earnings and the contract of hire. Where the numbers provided in the form are questionable as to their accuracy, they can be cross-checked by payroll records and paycheck stubs. Frequent battles are fought over the correct AWW. Fringe benefits (e.g., health insurance) may also figure into the calculation.
Rule 69L-3.0046
Specific Authority: 440.14, 440.185(5), 440.591 FS. Law Implemented 440.12(2), 440.185(5), (9) FS. History-New 1-10-05, Amended 3-16-09.

Fraud Statement
Upon request from the employer, the employee must sign and return a form containing the language located in Florida Statute Section 440.105(7). The ostensible purpose of the form is to inform the claimant that knowingly and intentionally filing a false claim may constitute insurance fraud. We view it as a not so subtle message from employers and insurance carriers for employees to think twice about seeking workers’ compensation benefits, even entirely legitimate claims. Nevertheless, unless the form is signed and returned, benefits can be suspended. The employer/carrier are limited to one form per year.
Rule 69L-3.0047
Specific Authority: Specific Authority 440.105(7), 440.591 FS. Law Implemented 440.105(7) FS. History-New 1-10-05.

Medical Authorization and Description of Incident
Workers’ compensation insurance carriers sometimes ask claimants to execute these forms. This particular Description of Incident form is different than the one contained in the First Report of Injury or Illness.

The Patient/Physician privilege of confidentiality is one of the most sacred in American jurisprudence. Sadly, the Florida Legislature has decided that injured workers lose this privilege in exchange for receiving workers’ compensation benefits. Pursuant to 440.13(4)(c), “An employee who reports an injury or illness alleged to be work-related waives any physician-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation.” Accordingly, the only time an employee must execute a carrier’s medical authorization form is when “medical records, reports, and information of an injured employee are sought from health care providers who are not subject to the jurisdiction of the state.” 440.13(4)(c).

There is nothing in the law that requires the claimant to complete this Description of Injury form. We view the form as an effort by the employer/carrier to obtain evidence on which a denial of benefits or a claim for insurance fraud can be based. We do not allow our clients to complete this form.

We do require our clients to sign our firm’s medical authorization form. This allows us to obtain their medical records from all providers.

Mileage Reimbursement
The carrier should send this form to the claimant to be completed and returned. Properly completed, the carrier should reimburse the claimant for travel expenses to and from authorized medical appointments, including physical therapy. The information provided in the form includes dates of service and round trip mileage. Effective July 1, 2011, the Internal Revenue Service’s deductible rate is 55.5 cents per mile.

It is important to be accurate with the information provided. Carriers will examine the information closely for misrepresentations, hoping to find even the slightest error on which to base a denial of benefits. Claimants should not fudge the numbers to make a few dollars.

Upon request, carriers will provide transportation.
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Contact Information
Main Office
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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2401 PGA Blvd #140
Palm Beach Gardens, FL 33410
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com

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