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chamber of commerce.jpgWhen it comes to the civil justice system, the U.S. Chamber of Commerce is a hypocritical ass.

While the U.S. Chamber of Commerce spends millions of dollars and focuses immense resources on lobbying campaigns aimed at limiting regular consumers’ access to the courthouse – the group’s affiliate, the Institute for Legal Reform, works every day to add barriers and restrictions to the right of individuals harmed by corporations to file lawsuits against corporations – the National Chamber Litigation Center, the part of the organization charged with filing lawsuits on behalf of the group, annually initiates over 130 suits, more than 2 a week.

In October, 2010, Chamber President and CEO Tom Donohue explained that litigation is, “one of our most powerful tools for making sure that the federal agencies follow the law and are held accountable.”

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avis.jpgOur law firm (along with co-counsel firm Domnick & Shevin, LLP) is currently involved in litigation against the Enterprise car rental company.

In 2008, Enterprise rented a vehicle, in Miami, to a person whose Florida driver’s license was under suspension for failing to appear in court on a number of motor vehicle moving violations. After his credit card was rejected, forcing him to leave the rental agency to obtain cash, he returned with the cash and presented a facially valid (although unlawfully obtained) Texas driver’s license to the rental agent. Enterprise rented him the vehicle.

A few days later, the renter caused a high-speed rollover accident in the Enterprise vehicle on I-75 near Gainesville, Florida. Our client, a passenger in the vehicle, was airlifted to Shands Hospital with life-threatening injuries. She remains severely disabled, in great pain, and unable to work.

A quick and inexpensive (less than $1.00) Internet database search, based on name and birth date, performed by the Enterprise agent, would have disclosed the customer’s license suspension and traffic record. However, since the agent was not instructed or authorized by Enterprise to perform such a search, one was not done.

We sued Enterprise on the theory that it negligently entrusted its vehicle to the at-fault driver. Enterprise claims that it did nothing wrong.

What is Enterprise’s primary defense? Florida Statute 322.38(2).

322.38(2) provides as follows – No person shall rent a motor vehicle to another until he or she has inspected the driver’s license of the person to whom the vehicle is to be rented, and compared and verified the signature thereon with the signature of such person written in his or her presence.

Enterprise argues that 322.38(2) is a safe harbor provision providing it with absolute immunity from fault, that despite the ease and nominal cost of determining the prospective customer’s license status and driving record, its only responsibility to the public was to inspect the Texas driver’s license and compare and verify the signature thereon.

The Plaintiff’s (our client) position is that 322.38(2) is not a safe harbor provision extending absolute immunity to Enterprise or any other rental agency. Rather, it is a minimum standard established by the Florida Legislature to create some level of safety for those who travel on the streets and highways of the state, but it is not the only standard that can be considered by judges and juries to determine reasonable conduct under every circumstance.

It is simply not the Legislature’s role to instruct companies how to conduct every aspect of their business. Those business decisions are left to the judgment of the companies, with the understanding, however, that poor decisions or worse can result in serious legal consequences.

Such is the scenario in our case. Enterprise did nothing more than the bare minimum. A judge and jury will now decide if this conduct was reasonable under the circumstances. We do not believe that it was, thus our claim for negligent entrustment. Clearly, Enterprise could have done more.
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Florida Statute Section 440.09(4)(a) provides that an employee shall not be entitled to workers’ compensation benefits if the employee has intentionally or knowingly engaged in any of the acts described in s. 440.15 for the purpose of securing workers’ compensation benefits.

Knowingly presenting false ID to obtain employment is an act described in s. 440.15 as being prohibited. Will performing such an act prevent an employee injured on the job from receiving workers’ compensation benefits?

In Matrix Employee Leasing and FCIC/First Commercial v. Hernandez, 975 So.2d 1217 (Fla. 1st DCA 2008), Mr. Hernandez obtained employment by presenting an invalid social security card. The employer did not learn that the card was invalid until the day Mr. Hernandez was hurt on the job.

Relying on 440.15 and 440.09, the Employer/Carrier denied benefits. The claimant countered that because the invalid ID was used to obtain employment rather than secure workers’ compensation benefits, benefits should not be denied. The JCC [Judge of Compensation Claims] agreed, ordering the E/C to pay workers’ compensation benefits. The E/C appealed the JCC’s order.
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Fault (or negligence) is always an issue in Florida motor vehicle accident personal injury cases. For an individual to be successful in claiming damages against another party, the claimant has the burden of proving that the other party caused the accident.

In some cases, proving fault is an easy matter. In others, the issue will be hotly contested. In those cases, the plaintiff – the party seeking damages – needs evidence to prove her or his case. One place to look (for evidence) is in the traffic court records.

In most Florida motor vehicle accidents, an investigating law enforcement officer will issue a traffic infraction/ticket to one or more of the involved parties. The ticket can be an expression of the investigating officer’s opinion with regard to fault. For example, a driver may be ticketed for following too closely or for failing to yield the right of way.

Although the traffic infraction itself is not admissable as evidence of guilt in a civil case arising out of the accident, the defendant’s response to the traffic charge may be.

With a few exceptions, Florida Statute Section 318.14(4)(a) allows any person charged with a noncriminal traffic infraction to pay the civil penalty by mail or in person without the effective admission of guilt being used as evidence in any other proceedings. “[O]ther proceedings” includes a civil action arising out of a traffic accident.

For purposes of motor vehicle accidents, the most important exceptions to 318.14(4)(a) are contained in Florida Statute 318.19, which contains a list of traffic infractions requiring a mandatory hearing. Those infractions are:

  1. Any infraction which results in a crash that causes the death of another;
  2. Any infraction which results in a crash that causes “serious bodily injury” of another as defined in s. 316.1933(1);
  3. Any infraction of s. 316.172(1)(b);
  4. Any infraction of s. 316.520(1) or (2); or
  5. Any infraction of s. 316.183(2), s. 316.187, or s. 316.189 of exceeding the speed limit by 30 m.p.h. or more.

Unlike the allowance contained in 318.14, a guilty plea in one of the 318.19 exceptions can be used as evidence in any other proceedings, including a civil case for damages. (The record of the plea is admitted, not as establishing the fact [of fault], but as a deliberate declaration or admission of the party himself that the fact is true. Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216, 218 (Fla., 1967).)
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Many people mistakenly believe that maintenance and unearned wages for injured seamen are the same benefit. They are not.

Seamen injured while working on the high seas are entitled to no-fault benefits, in other words, benefits regardless of why the accident happened. Among those benefits are Maintenance & Cure, and unearned wages.

Maintenance is to compensate the seaman for the value of quarters and meals furnished aboard the vessel. The benefit commences on the date the seaman leaves the ship, not the date of the injury, and ends in most instances when the seaman has reached maximum medical cure.

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Not surprisingly, in Jennifer Kauffman v. Community Inclusions, Inc./Guarantee Insurance Company, filed on March 23, 2011, the Florida First District Court of Appeal issued an opinion finding constitutional a Florida law, Statute 440.34, that is designed to limit the ability of injured workers to obtain workers’ compensation benefits.

The Jennifer Kauffman appeal arose out of a lower court order awarding Ms. Kauffman’s attorney a fee in the amount of $648.41. The employer/carrier were ordered to pay the fee because they had lost at the trial level in their effort to deny workers’ compensation benefits to Ms. Kauffman, who was injured on the job. Her attorney spent 100.3 hours in the successful prosecution of the claim, meaning that he was awarded $6.48 per hour. (Although JCC E. Douglas Spangler, Jr. concluded in his appealed court order that the fee was patently unreasonable, he felt constrained by the statute to award the amount he did. In his opinion, based on evidence presented at the fee hearing, a reasonable fee would have been $25,075. Judge Spangler was also dismayed that the employer/carrier were able to pay their own defense attorney $14,720 in a losing effort.)
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Since the establishment of a workers’ compensation system in Florida more than 80 years ago, business and insurance interests have steadily tried to whittle away workers’ rights with varying degrees of success. The high water mark for them arrived in the late 1990s with the election of Jeb Bush as Florida’s Governor. For the next eight years, injured workers absorbed one crippling body blow after the other from Bush and his merry band of right-wing zealots in the Florida Legislature anxious to maximize the profits of the business community at the expense of individual rights. (Jeb adopted for Florida many of the measures that his brother George before him had imposed in Texas during his reign as that state’s Governor. Get the picture?)

One of the more onerous examples of rights-limiting workers’ compensation imposed in Florida is set forth at Section 440.09(1)(b) of the Florida Statutes. This section, known as the Major Contributing Cause (MCC) Doctrine, places the burden on injured workers to prove that the industrial accident is more than 50% responsible for causing the injury. An injured worker who fails to meet this burden will be denied ALL medical care and lost wage benefits from the employer. (In contrast, the personal injury system does not summarily deny compensation to persons with pre-existing conditions whose injuries were activated, i.e., made to become symptomatic, or aggravated (permanently worsened) by an accident. Instead, the finder of fact carves out the pre-existing element from the recovery and awards the difference. Not so under Bush’s MCC system.)

The MCC is used as a defense in many cases. The E/C try to blame 50% or more of a claimant’s injury on a pre-existing condition. For older workers and those with similar prior complaints, the defense can be difficult to overcome. Sadly, many an injured worker has been denied workers’ compensation benefits because of the MCC.

Fortunately, the First District Court of Appeal has carved out an important exception to the MCC doctrine. In Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007), the court held that an employee need not meet the rigorous MCC requirements when her or his pre-existing condition is occupationally related.
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The U.S. Congress has not adopted a workers’ compensation statute applicable to seamen. This contrasts with federal workers’ compensation statutes created for federal workers (FECA) and longshore and harbor workers (LHWCA).

The differences between the remedies available under the federal statutes and those available to injured seamen are many and substantial. This blog briefly summarizes the remedies available to seamen who become sick or injured during their employment aboard vessels engaged in navigation on navigable waters.

Injured seamen have the potential for remedies under three different systems. The first is maintenance and cure. In terms of available remedies, this system most closely resembles state and federal workers’ compensation systems. Maintenance is lost wages and cure is medical care. The benefits are supposed to be provided without regard to fault and last until the injured seaman has reached maximum medical cure or maximum medical improvement. Maintenance and cure benefits are paid by the employer.

The second system provides for compensation against the vessel owner under general maritime law. This is a negligence-based system. Vessel owners owe seamen a duty of providing a seaworthy vessel. To be compensated under this system, seamen must prove that an unseaworthy condition played a substantial part in bringing about or actually causing the injury, and that the injury was either a direct result or a reasonable probable consequence of the unseaworthiness.
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Neither railway workers nor seamen injured on the job are covered by any state workers’ compensation system. However, they are not left unprotected. Both are covered by systems that in many respects surpass anything available under any state workers’ compensation system.

Railway workers are covered by the Federal Employees’ Liabilities Act (FELA), while seamen accidents are governed by the Jones Act. The two bodies of law are nearly identical in substance and form.

In contrast, there are significant differences between FELA/Jones Act and state workers’ compensation systems.

State workers’ compensation systems are no-fault systems, meaning that injured employees need not show that their injuries were caused through some fault of the employer. As long as the accident happened in the course and scope of the employment, the injured worker should be covered. Railway workers and seamen must prove negligence on the part of the employer.

Negligence can sometimes be difficult to prove. However, because of the inherent dangers involved in railway and maritime work, the common law (case derived law) has evolved to make the standard of proof lower than it is in other types of negligence cases. In other words, it is somewhat less difficult to prove negligence in railway and seamen accidents than it is in other types of cases.

There is also a difference in the type and quality of benefits available between the two systems.

Most, if not all, state workers’ compensation systems bar compensation for pain and suffering. Lawmakers have decided that this is a fair tradeoff for not having to prove negligence. FELA and the Jones Act do not bar compensation for pain and suffering.
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Florida law imposes a duty on insurers to act reasonably in the discharge of the fiduciary duty they owe their policy holders. In the case of an injury claim against a policy holder (insured), the insurance company is duty bound to settle within the policy limits when it can and should do so. When the insurer fails and a final judgment is then entered against the insured in excess of the policy limits, the insurer will be responsible for satisfying the entire judgment if it is shown that it failed to act fairly and honestly towards its insured with due regard for her or his interest.

The law encourages insurance companies to settle claims that could and should be settled. The law reduces the number of cases that are forced to trial. The law protects policy holders from bearing the burden of excess judgments.

The law is important.

The law works.

The law does little to protect medical providers from excess judgments!

Florida Statute 766.1185 (2003) affords insurance carriers a safe harbor from excess judgments in medical malpractice cases. It provides that an insurer shall not be held in bad faith for failure to pay its policy limits if it tenders its policy limits by the 210th day after service of the complaint in the medical negligence action upon the insured.

The statute does not require the injured party to accept the tender. So long as the carrier tenders the limits, it is immune from any liability for an excess judgment.

Not so the medical provider.

Unless the insurance company’s tender is accepted, the medical provider remains personally liable for the excess judgment.

In essence, the insurer has relatively little to lose by having its tender declined. If the case proceeds to trial and an excess judgment is obtained, the excess is the responsibility of the medical provider rather than the insurance company. Good deal for the insurer, bad deal for the insured. When the most the insurer will ever have to pay is the policy limits, why not roll the dice? Who would not want to roll the dice with nothing on the table to lose?

Because of this, 766.1185 leaves medical providers far more vulnerable to excess judgments than insureds in non-medical malpractice cases.
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