Florida Injury Attorney Blawg

August 2, 2011

Florida Premises Liability Law Allows Evidence of No Prior Similar Events

Premises liability lawyers, both Plaintiff and Defense, know that evidence of prior accidents or events may, by a showing of substantially similar conditions, be admissible to prove one or more elements of a case. Less well recognized is that no-accident history may also be admitted into evidence for a variety of purposes.

No-accident history may be admissible to show: (1) An absence of the defect or condition alleged, (2) the lack of a causal relationship between the injury and the defect or condition charged, (3) the nonexistence of an unduly dangerous situation, or (4) want of knowledge (or of grounds to realize) the danger.

Relevant cases

Springtree Props., Inc. v. Hammond, 692 So.2d 164, 165 (Fla.1997) (considering absence of similar accidents in determining whether fact issues remained)
Cent. Theatres v. Wilkinson, 154 Fla. 589, 18 So.2d 755 (1944) (evidence that for several years there had been no accident from shooting at location admissible);
Lewis v. Sun Time Corp., 47 So. 3d 872 3rd (Fla. 3rd DCA 2010) (allowed evidence of no-falls on wet terrazzo steps since the hotel was opened in 1937)
State, Dep’t of Transp. v. Patterson, 594 So.2d 830, 831 (Fla. 4th DCA 1992) (“[A]ppellant was entitled to have the jury consider that the records it still maintained revealed no bicycle accidents in the tunnel prior to the present accident.”)
McAllister v. Robbins, 542 So.2d 470, 471 (Fla. 1st DCA 1989) (relying in part on evidence that no one had fallen over the concrete blocks at issue during the preceding seventeen years)
Doe v. U.S., 718 F.2d 1039, 1043 (11th Cir.1983) (applying Florida law and approving evidence that for a number of years before the incident, there had never been a crime against a person committed on the premises)
Perret v. Seaboard Coast Line R.R. Co., 299 So.2d 590, 594 (Fla.1974); Williams v. Madden, 588 So.2d 41, 43 (Fla. 1st DCA 1991); Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075 (Fla. 3d DCA 1983) involving the admission of testimony concerning the prior safety history of the site in question, that is, previous accidents or their absence
Lawrence v. Fla. E. Coast Ry. Co., 346 So.2d 1012, 1015 (Fla.1977) (“[D]eterminations of whether a proper predicate of similarity exists should be left to the sound discretion of the trial judge.”)
Friddle v. Seaboard Coast Line R.R. Co., 306 So.2d 97 (Fla.1974); Ry. Express Agency, Inc. v. Fulmer, 227 So.2d 870, 873 (Fla.1969); Hogan v. Gable, 30 So.3d 573, 575-76 (Fla. 1st DCA 2010); Warn Indus. v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977); but cf. Godfrey v. Precision Airmotive Corp., 46 So.3d 1020 (Fla. 5th DCA 2010); Cooper v. State, 45 So.3d 490 (Fla. 4th DCA 2010) (concluding “the dissimilarities of these cases are greater than their similarities”)

August 1, 2011

Rescinding Insurance Policy – Florida Statute 627.409 vs. “Knowledge and Belief”

by Jeffrey P. Gale, P.A.

Florida Statute 627.409 (2010) allows an insurance company to rescind an insurance policy on the grounds of misrepresentation if it can prove:

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.

However, in Casamassina v. US Life Ins. Co., 958 So. 2d 1093 (4th DCA 2007), the insurance carrier was prevented from using the statute to rescind the policy by language in its own insurance application.

United States Life Insurance Company issued a $500,000 life insurance policy to John Casamassina on November 6, 1997. Less than two weeks later, Casamassina was diagnosed with a brain tumor; he died on December 4, 1997. After U.S. Life denied the policy claim, the trust beneficiary of the policy and the widow filed suit.
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July 28, 2011

Florida Law: Maximize Recovery by Obtaining Assignment of Subrogation Rights

by Jeffrey P. Gale, P.A.

Job one of lawyers who represent individuals who have suffered personal injuries and/or property damage losses is to maximize the client’s recovery. The conventional thinking is that the recovery in every case is limited by the measure of actual damages, in other words, the recovery cannot exceed the loss.

Surprisingly, this is a rule that can be broken … with a proviso.

In Despointes v. Florida Power Corporation, 2 So.3d 360 (2nd DCA 2008), a person who was paid $224,567.66 by her own insurance company, CIGNA, for fire damage, was able to pursue a claim for damages, through her estate, against a third party for the amount already recovered from the insurance company.

The device used for this opportunity was an assignment from CIGNA of its subrogation/reimbursement right.

The CIGNA policy provided for the right of subrogation against any third party recovery. This right authorized CIGNA to pursue a claim against the third party responsible for causing the house fire for the amount it paid to its insured. Instead of pursuing the claim, it assigned the right to its insured.

Thereafter, the insured sued the third party, Intermatic, alleging that the fire had been caused by a defective surge protector. The Defendant argued that the insured was not allowed to recover the money she had already received.

The trial court agreed. The Second District Court of Appeal did not.
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July 27, 2011

Effective Ways of Demonstrating Serious Injuries in Personal Injury Cases

by Jeffrey P. Gale, P.A.

The most important job of every personal injury lawyer is to maximize the amount of his or her client’s monetary recovery. The damage elements of every personal injury case are “pain & suffering” and economic damages (which includes lost wages, loss of earning capacity, out-of-pocket expenses, and past and future medical expenses). The nature and extent of the injuries bear on every element of damages. Accordingly, effectively demonstrating the nature and extent of the injuries is a critical component in every personal injury case. Various methods are available.

Although medical illustrations, both generic and case-specific, are the traditional way of demonstrating injuries, they continue to serve a convincing role in presenting evidence in today’s high tech world. Generic illustrations are less costly and can be used in other cases, but may have less impact than case-specific demonstrations. For spine injuries, showing a summary of pain management injections is effective. The exhibit will visually show every date injections were administered, along with the location, size, and shape of each needle and syringe entering the spine. To have this chart made, the medical illustrator must be provided with the medical records containing the injections information or a summary detailing the information.
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July 25, 2011

Florida Lags Behind 47 States in Child Booster Seat Safety Requirements

by Jeffrey P. Gale, P.A.

Florida is one of only three states in the country that has yet to enact legislation requiring children six and older or too small for lap and shoulder belts to be placed in booster seats or integrated systems. A bill (Senate Bill 238) was proposed in the 2011 legislative session to close the gap, but failed to be enacted. Apparently, the Legislature considered it more important to benefit Corporate America, by re-allocating liability in crashworthiness cases, than protect its children.

Florida requires that children three and younger be restrained in a federally approved child restraint device consisting of a separate carrier or a vehicle-manufactured integrated child seat, and that children four and five-years old be restrained in a separate device, the integrated seat, or just the auto manufacturer’s seat belt. Florida Statute Section 316.613(1)(a).
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July 20, 2011

FLSA (Fair Labor Standards Act) – Court of “Competent” Jurisdiction

by Jeffrey P. Gale, P.A.

The Fair Labor Standards Act (FLSA) requires employers to pay employees overtime pay, at a rate of time and a half, for all hours worked in excess of 40 hours per week. See Section 207 of the Act. Pursuant to 29 U. S. C. §216(b), an action to recover overtime pay may be maintained in any Federal or State court of “competent” jurisdiction.

In which Florida State court, circuit or county, a claim may be brought, also known as the court’s statutory authority, typically depends on the amount in controversy as determined by the allegations set forth in the Complaint. These are the 2011 jurisdictional levels:

Circuit Civil: where the amount of damages sought is in excess of $15,000.
County Civil: where damages sought range from $.01 to $15,000 (In Miami-Dade County, where damages sought range from $.01 to $5,000, cases are assigned to the small claims division, with its own set of procedures including summary administration.)

Many individual (vs. class action) FLSA claims involve sums of less than $15,000.
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July 10, 2011

Florida Workers’ Compensation Law: Distinction Between “Lunch Periods” and “Breaks” for Purposes of Compensability”

by Jeffrey P. Gale, P.A.

For an accident to be compensable (or covered) under the workers’ compensation system, it must happen in the course and scope of the employment. Generally, where the employment has fixed time and location requirements, accidents off the premises during lunch are not compensable. In other words, these accidents do not occur in the course and scope of the employment. In contrast, accidents occurring on premises during breaks or while the employee is attending to personal comfort are more likely to be considered compensable. (Caveat: an exception to compensability arises where the accident has happened during a substantial deviation from the break.)

Lunch Time Accidents

On Employer’s Premises: Compensable. Doctor’s Business Service, Inc. v. Clark, 498 So.2d 659 (Fla. 1st DCA 1986). No compensability during substantial deviation. What constitutes a “substantial deviation” will be decided on a case-by-case basis.
Away from Employer’s Premises: Not compensable. The same principles apply as in the “going and coming rule,” i.e., accidents while going and coming from work at the beginning and end of the work day.

Personal Comfort and Rest Breaks Generally, accidents that happen during these situations are compensable. A primary distinguishing reason for compensability is the duration of the event. The courts consider control by the employer over the employee to be an important factor. The duration of off-site lunch breaks loosen the grip of control enough to eliminate compensability, while the degree of control maintained during personal comfort and rest breaks, even those of short duration off premises, satisfies the course and scope requirement. Although the determination, of course, must be made on a case by case basis, a helpful standard was announced in City of Miami v. Dwight, 637 So.2d 981, 983 (Fla. 1st DCA 1994): “If the employer, in all the circumstances, including duration, shortness of off-premises distance, and limitations on off-premises activity during the interval can be deemed to have retained authority over the employee, the off-premises injury may be found to be within the course of employment.”
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July 6, 2011

My Views Regarding the Casey Anthony Verdict

by Jeffrey P. Gale, P.A.

Following the Casey Anthony verdict, many of my Facebook Friends posted attacks on the jury and the jury system. Pasted below are responses to those attacks that I posted to Facebook.

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Posted on July 5, 2011:
James Madison and Thomas Jefferson – ever heard of them? – would be sickened by all of the cynicism directed at the jury and the jury system. Unlike most here, they would be proud of the jury and the way the system worked. Hard to believe that grown adults are so willing to substitute their judgment, formed from the know-nothing talking heads on Fox, MSNBC, CNN, et al, for the considered judgment of 12 regular people who heard ALL of the admissable evidence and deliberated as a body to reach it’s verdict. Scary, really. Required viewing for those who think they know better than this jury: 12 ANGRY MEN, starring Henry Fonda. Also, read The Magna Carta (The Great Charter), Article 39 and Deuteronomy. At least learn a little something about the American justice system and its foundings before yapping.
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July 5, 2011

Florida Workers’ Compensation Law: Proving Medical Causation

by Jeffrey P. Gale, P.A.

Chapter 440, the body of statutes governing Florida’s workers’ compensation system, places on the injured worker, also known as the Claimant, the burden of proving the accident caused his or her injuries. Almost always, medical evidence is required to meet the burden.

Certain elements must be established to meet the burden. Shown below is the information I rely on to keep from missing one or more critical elements. Also helpful in realizing the essential medical proof is Form DWC-25, Florida Workers’ Compensation Uniform Medical Treatment/Status Reporting Form, the form all authorized doctors are required to complete and submit to the carrier after every appointment.

Florida Statute 440.09 Coverage.—- (1) The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment. The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries. For purposes of this section, “major contributing cause” means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought. In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable. For purposes of this section, “objective relevant medical findings” are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing. Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must be by medical evidence only, as demonstrated by physical examination findings or diagnostic testing. Major contributing cause must be demonstrated by medical evidence only.

Elements of 440.09 requiring medical testimony:

The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty,
based on objective relevant medical findings,
and the accidental compensable injury must be the major contributing cause of any resulting injuries.
For purposes of this section, “major contributing cause” means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought.
In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. (Note: What does “medical certainty” mean? Who knows. Black’s Law Dictionary says that it is more than probable. Regular dictionary says certain means: inevitable, sure to happen, indisputable, dependable. If the doctor asks what it means, tell him or her that it is something that is reasonably sure to happen.)
Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable.
For purposes of this section, “objective relevant medical findings” are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing.
Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must be by medical evidence only, as demonstrated by physical examination findings or diagnostic testing.
Major contributing cause must be demonstrated by medical evidence only.

Florida Statute Section 440.02(1): When used in this chapter, unless the context clearly requires otherwise, the following terms shall have the following meanings:
(1) “Accident” means only an unexpected or unusual event or result that happens suddenly. Disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or controlled substances or narcotic drugs, or a disease that manifests itself in the fear of or dislike for an individual because of the individual’s race, color, religion, sex, national origin, age, or handicap is not an injury by accident arising out of the employment. Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable, with respect to any compensation otherwise payable under this chapter. An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.

Elements of 440.02(1) requiring medical testimony:

Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable….
An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.

July 4, 2011

“Tort Reform” Violates 7th Amendment to the U.S. Constitution

by Jeffrey P. Gale, P.A.

On the 4th of July, of all days, the following topic should be considered one of utmost importance.

The 7th Amendment to the United States Constitution guarantees the right to a trial by jury in civil cases.

Seventh Amendment of the US Constitution
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

Our Founding Fathers considered the right essential to the preservation of liberty in America:

James Madison: “In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

Thomas Jefferson called civil jury trials, “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

In fact, the right to a trial by jury of civil suits dates back nearly 800 years, to the signing of the Magna Carta of 1215. Article 39 of the Magna Carta specifically guaranteed the right in both civil and criminal cases.

Pretty serious stuff.

Sadly, the 7th Amendment right it teetering on the brink of collapse under years of unrelenting political and legal warfare funded by Corporate America and fought by its groundtroops composed of lobbyists and so-called “conservative” politicians – in my view, the word “radical” more accurately describes the mentality of these politicians.

In the name of “economic efficiency,” the drug industry, financial institutions, manufacturers, and other entities for years have pushed “tort reform” – the enactment of laws specifically designed to provide immunity to wrongdoers at the expense of the 7th Amendment. Unfortunately, their propoganda, lies, and distortions have been accepted as truth by the very same people the 7th Amendment is designed to protect. A classic example of “We the People” being fooled into supporting measures that are against our own best interests.
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FLORIDA INJURY ATTORNEY BLAWG