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Language in documents used to absolve parties from liability for their own negligence is disfavored by the courts. Nevertheless, under certain circumstances, such exculpatory clauses or pre-injury releases/waivers are enforceable in Florida.

Pre-injury releases are used frequently in connection with activities considered risky, such as go-cart and off-road racing, high school football, horseback riding, and cheerleading, but are also used for commonplace activities such as Disney World rides and school outings.

Because of their disfavor with the courts, exculpatory clauses will be strictly construed against the party seeking to avoid liability. Requirements for enforceability include:

  • The language must be clear and unambiguous.
  • The intent to limit liability must be expressed in clear and unequivocal terms.
  • The waiver must clearly state that it releases the party from liability for his own negligence (although this requirement is not strictly followed by Florida’s 5th DCA).

Other factors weighing on enforceability include:

  • Does the release give the plaintiff the option to purchase insurance or pay additional fees to cover loss, injury or damage?
  • Is exculpatory language in different color or typeset than other provisions of the agreement?
  • Is the release signed, dated, and witnessed?

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The newspaper article reproduced below, written in 2003, does an excellent job of illustrating the importance of having strong bad faith insurance laws designed to persuade insurance companies to settle cases for fair value rather force every case to trial.

Florida’s bad faith laws impose a duty on insurance companies to act in the best interests of their insureds (customers). If an insurance company can and should settle a case within its insured’s policy limits, it should. If the insurance company refuses and a final judgment in excess of the limits is then entered against the insured, the company may be forced to pay the full judgment, not just the policy limits.

Whether or not the carrier must pay the full judgment depends on the manner in which it handled the claim. If, based on all available information, the carrier could have and should have settled the case within the policy limits, it may very well be required to pay the full judgment … as it should for needlessly exposing its insured to a significant money judgment.

Without meaningful bad faith laws, insurance companies would never settle cases within policy limits. Knowing that the most they will ever have to pay is what they should pay anyway, i.e., the policy limits, they will force every case to trial. Their purpose in taking every case to trial will be to put plaintiffs’ lawyers on notice that to avoid trial, every case must be settled for less than policy limits, even cases worth much more than policy limits.

Without strong bad faith insurance laws, the only parties that will be exposed to excess judgments will be the insureds, those who purchase the insurance coverage to avoid such a scenario.

Under Governor Rick Scott, the Florida Legislature will attempt to gut Florida’s bad faith laws. From their point of view, insurance company profits are more important than protecting individuals.

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Bad faith in the law

By MARTIN DYCKMAN Published December 21, 2003
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TALLAHASSEE – The malpractice debate last summer was an emotional roller coaster ending in bitter disappointment for Florida physicians whose leaders had convinced them that there would be no relief from high insurance premiums without a flat $250,000 ceiling on pain and suffering awards. That line came straight from the insurance lobby, which actually wanted something else a lot more, and got it.

To the insurers, the more important goal was to erode Florida’s bad-faith law, which they blame for forcing them to settle cases they say they shouldn’t. That premise is partly true; the law is intended to encourage settlements and avoid costly trials. But legislators heard only opinion, not evidence, as to whether there are really too many before agreeing to make the doctors the guinea pigs in a dangerous experiment.

To illustrate what’s at stake, let’s look at the outcome of an important trial at Clearwater earlier this month. It involved an automobile accident, not medical malpractice, but the principles are the same. My colleague William R. Levesque reported the story in the Dec. 5 St. Petersburg Times.

The plaintiff was Xiao-Cao Sha, a 41-year-old violinist who suffered severe shoulder and neck injuries in a collision that the defense conceded to be the fault of the driver who had run a red light and hit the car in which Sha was a passenger. Sha, who had left the Florida Orchestra to seek opportunities in major orchestras, can no longer play without severe pain and can practice only 15 minutes a day. The defense didn’t question that either.

The other driver was unusually well insured – for $1.75-million, says Sha’s lawyer, Tom Carey – and Carey offered to settle for that. He might have settled for even less, I gathered, but not for as little as the defendant’s carrier, Liberty Mutual, was willing to pay.

According to Carey, “they never made it to $200,000.”

So the case went to trial, where Liberty Mutual’s lawyer contended that Sha should be awarded no more than $189,000 because there was no guarantee she could have fulfilled her dreams and might never have earned more than $30,000 a year, her former salary with the Florida Orchestra. She could still have earned that, the lawyer said, by teaching and performing solos.

Imagine for a moment that the victim had been a young doctor about to start practice as a neurosurgeon and an insurance company had proposed that he or she settle for pediatrics or some other specialty that earns much less. Any red-blooded jury would have socked that company at least as hard as Sha’s did.

The jury took less than hour to award her $5-million, which included some $1,375,000 for lost future wages and $3,456,000 for pain and suffering. More than twice, all told, the limits of the policy that the defendant and her husband had paid for and Sha would have accepted.
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In Greenfield v. Daniels (November 24, 2010), the Florida Supreme Court decided that paternity of a child could be determined in the course of a wrongful death proceeding under Chapter 768, Fla. Statutes rather than in a paternity proceeding under Ch. 742, Fla. Stat. The Court’s decision disapproved the conflicting decision of a lower appellate court in Achumba v. Neustein, 793 So.2d 1013 (Fla. 5th DCA 2001).

In Greenfield, the bioligical father of a minor child committed suicide. A wrongful death action was brought by the estate of the decedent against a psychiartist (and a hospital) for allegedly negligently discharging him. A claim was made for the minor as a “survivor” under the statute. However, the doctor challenged the child’s status as a “survivor,” claiming that the child’s status could not be established after the purported father’s death.

The legal question at issue was whether or not paternity could be established in the wrongful death proceeding.
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law books.jpgIn my opinion, the most important Florida workers’ compensation case of all time is Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla., 2005). Aguilera made it clear that workers’ compensation insurance carriers and adjusters are not immune from being sued for the tort of intentional infliction of emotional distress where their conduct in handling a claim is more than simply bad faith or a breach of contract, but where the conduct is intentional and outrageous. What this means is that carriers and adjusters can be sued in circuit court for damages caused by outrageous conduct.

The Aguilera decision reinstated a lawsuit, which had been dismissed by a lower appellate court, the 3rd DCA, brought by an injured worker against the workers’ compensation carrier and claims adjuster. Although a confidential settlement was reached in the case, word on the street is that the case settled for in excess of one million dollars. Given the damage caused by their outrageous conduct, this was a small price to pay.

This Florida Supreme Court decision has gotten the attention of workers’ compensation insurance companies and their claims adjusters. No longer can claims be handled with complete indifference and a lack of regard for the health, safety, and welfare of injured workers without consequence. This is not to say that injured workers get everything they want. This is far from the case. There is still room for legitimate disputes. What the decision does mean is that there is no place in the workers’ compensation system for mean-spirited claims handling.

UNDERLYING FACTS:

  • On April 21, 1999, Aguilera was struck by a forklift and pushed against a pallet. He suffered immediate injuries and was rushed to the emergency room. Testing performed in the ER showed blood in Aguilera’s urine.
  • Subsequently, Aguilera began to complain of kidney and bladder pain.
  • On May 24, after two physicians examined him and concluded that he could not return to work, Aguilera’s attorney requested that he be examined by a board certified urologist.
  • The workers’ compensation insurance carrier denied authorization of the urologist, asserting that Aguilera’s injury was not work related.
  • On June 17, 1999, the insurance carrier was again notified that urological care was now needed on an emergency basis because Aguilera’s urine had begun to smell like feces.
  • On June 21, Aguilera was advised that his workers’ compensation benefits were being terminated as of July 9, 1999, notwithstanding the report of two doctors, including the opinion of the insurance carrier’s own doctor, that he should not return to work.
  • On June 25, 1999, the insurance company intervened and blocked Aguilera’s receipt of medication prescribed by the hospital emergency room doctor for his urinary condition.
  • On June 30, the carrier again denied authorization of emergency medical care for the urinary problems, claims it was not medically necessary.
  • On July 7, 1999, Aguilera’s treating doctor advised the carrier that his need for medical care was urgent and that his condition was deteriorating.
  • On July 9, 1999, the carrier’s own doctor issued prescriptions for various urinary tests.
  • On July 30, 2009, the adjuster intervened and simply unilaterally cancelled some of the medical testing.
  • Testing that was ultimately done revealed that Aguilera had a fistula, a hole in his bladder.
  • On August 6, 1999, Mippy Heath became the new insurance company case manager. She was specifically told by Aguilera’s attorney that she should have no direct contact with Aguilera. She also agreed that no intervention with Aguilera’s care would be attempted.
  • On August 19, Aguilera’s attorney alerted the insurance carrier that the injured employee was in need of emergency care for the fistula. Heath refused the authorization and insisted on a second opinion.
  • On August 25, Heath secretly appeared at the physician’s office for Aguilera’s appointment. She urged Aguilera to lie to his attorney that she has not appeared at his doctor’s appointment.
  • Subsequently, Heath insisted that Aguilera submit to the administration of invasive tests that were not only painful but also contraindicated by his then-present medical condition. The insurance company then proceeded to use Aguilera’s refusal to submit to the tests as a basis to justify a refusal and denial of his then needed critical, surgical treatment.
  • By November 4, 1999, Heath, the case manager, and a nurse practitioner also employed by the insurance carrier had changed positions and agreed that Aguilera needed immediate hospitalization for surgery. However, the insurance carrier’s adjuster again intervened and overruled the decision of medical personnel simply because he wanted a second opinion from a general surgeon. Notwithstanding this intervention, the insurance carrier did not follow its own position and authorize Aguilera to consult with a general surgeon, but instead again changed course and sent Aguilera to a gastroenterologist. At this point in time, Aguilera had allegedly been urinating feces and blood for over six months.
  • Aguilera’s ultimate surgery, the need for which had been diagnosed as an emergency as early as June of 1999, was not finally authorized or approved until March 22, 2000. By this time, according to the allegations, Aguilera had been urinating feces and blood for over ten months.

Florida’s workers’ compensation laws provide employees limited medical and wage loss benefits, without regard to fault, for losses resulting from accidental workplace injuries. The carrier’s failure to provide benefits in a timely manner or at all may result in the assessment of minor monetary penalites and interest. However, the workers’ compensation system does not have a mechanism for making carriers/adjusters accountable for serious injuries caused by outrageous claims handling.

In exchange for not having to prove fault for losses resulting from accidental injuries, employees have relinquished their right to seek common law recovery from the employer for those injuries. This concept is commonly known as “workers’ compensation immunity.” (See Florida Statute 440.11.)
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At the urging of Governor Jeb Bush, Florida’s Republican-controlled legislature in 2002 passed a workers’ compensation bill designed to limit carrier-paid attorney’s fees to claimants’ attorneys. The measure was challenged in the courts by claimants (injured workers), who argued that it was unconstitutional (denied access to courts & equal protection) and that it should be interpreted to allow for “reasonable” attorney’s fees.

Five years after the bill’s effective date, the Florida Supreme Court, in Murray v. Mariner Health and Ace USA, 994 So.2d 1051 (Fla.2008), held that the statute provided for reasonable attorney’s fees. The court did not rule on the constitutional issues.

In a clear rebuke to the Florida Supreme Court, in it’s next legislative session, which began on March 1, 2009, less than seven months after the Murray decision, the still-again Republican-controlled legislature took another shot at limiting fees. What it did was remove the word “reasonable” from Florida Statute 440.34. The Legislature’s goal was to make it difficult for injured workers to obtain adequate legal representation by denying their attorneys reasonable attorney’s fees.

In the Murray case, Ms. Murray was successful at the trial level in convincing a judge of workers’ compensation claims (JCC) that her injuries were sustained in a work-related accident. (The employer/carrier (e/c) had denied her injuries.) In a subsequent attorney’s fee hearing, the JCC found that claimant’s counsel expended eighty hours of reasonable and necessary time on the case. However, the JCC, although concluding in his written order that $16,000 was a reasonable fee, felt constrained by the statute and awarded only $684.84, or an hourly rate of $8.11. According to the JCC, this amount was “manifestly unfair.” (Note: the e/c in this case paid their attorney $16,050 (135 hours at $125 an hour) in the unsuccessful effort to resist paying benefits.) It was this order that was appealed and eventually made its way to the Florida Supreme Court. As a result of the decision, Ms. Murray’s attorney was awared $16,000 for his efforts at the trial level.
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doctor.jpgUnder no circumstances may a civil action alleging medical malpractice/negligence be started in Florida more than seven years from the date of the incident or occurrence out of which the action accrued. This 7-year limitation is imposed by what is called a statute of repose, set forth in Florida Statute 95.11(4)(b). This is not to say that every medical negligence claim can be instituted up to seven years from the date of the incident or occurrence out of which the action accrued. Most cannot.

The time limit for starting most medical malpractice cases is controlled by the section of 95.11(4)(b) that provides as follows: “An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued….” This is Florida’s medical negligence statute of limitations. It is not the same thing as the statute of repose.

How is the 4 year sol limit stretched to 7 years? By showing that “fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury….” id. When the burden is met, “the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.” Hence, the 7 year cap.

(IMPORTANT NOTE: Nothing shall bar an action brought on behalf of a minor on or before the child’s eighth birthday. 95.11(4)(b))
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law books.jpgA statute of limitation is an enactment in a common law legal system that sets forth the maximum time after an event that legal proceedings based on that event may be initiated. Most people are familiar with the concept.

Far less familiar to the general public, and even to some lawyers, is the legal concept known as statute of repose. Like a statute of limitation, a statute of repose (sometimes called a nonclaim statute) limits the time period in which a civil action may be instituted.

A products liability case is a legal action for injuries founded on the defective design, manufacture, distribution, or sale of personal property. Examples of products found to be defective are tires, motor vehicles, drugs, and surgical hardware. In Florida, defective products cases are subject to a statute of limitation and a statute of repose.

The statute of limitation in Florida with regard to injuries caused by defective products is four years. (Florida Statute 95.11(3)(e)). (Caveat: When death results from a defective product, Florida’s Wrongful Death Act imposes a two year statute of limitations.) This means that a lawsuit founded on a defective product must be filed within four years or two years of when it is known or should have reasonably known what caused the accident.

Sometimes, however, the statute of repose effectively limits the time allowed under the statute of limitation and, in some instances, bars altogether a claim from being brought.

An actual case example will help illustrate this point:

Our law firm was recently hired by a gentleman who was severely injured by a defective forklift. Through discovery conducted in his workers’ compensation case, we learned that the manufacturer originally sold the forklift in 1996, more than fourteen years before the accident.

Even though we were prepared to file a products liability complaint well within the two year statute of limitation period, we were prevented from doing so by the statute of repose.
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epidemiology.jpgEpidemiology is the study of patterns of health and illness and associated factors at the population level. Forensic (applying science to answer questions of interest to a legal system) epidemiology can be useful in personal injuries cases to prove causation of an injury.

The personal injury claimant has the burden of proving that his/her injuries or conditions were more likely than not caused by an accident or offending agent (e.g., smoking). This burden becomes more difficult when the complained of injuries and conditions can occur naturally without a known precipitating cause. Examples include herniated intervertrebral discs and lung cancer.

Various types of experts, including doctors and biomechanists, are used on both sides to present evidence regarding the issue of causation. The expertise of forensic epidemiologists is greatly underutilized.

Epidemiologists use “relative risk” to compare the chance of injuries and conditions being caused in certain ways. Two examples: (1) The risk of an intervertebral disc injury from a crash is 1 in 200, while the risk of an individual developing the symptoms at the same point in time if the crash hadn’t occurred is usually less than 1 in 100,000. (2) The chance that a person who smokes will get lung cancer is 20% compared to 1% for non-smokers.

A common defense tactic in civil justice cases is to propose alternative explanations for the injuries/conditions besides the targeted accident or exposure. The defendant’s hope is that a jury will attribute the damage to something other than the accident or exposure. The epidemiologist can be an important expert to counter the shifting-blame defense.
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Companies and individuals in possession or control of real property have a nondelegable duty to keep that property in a reasonably safe condition. Liability for personal injuries caused by a breach of the duty cannot be avoided by hiring an independent contractor to maintain the property in a reasonably safe condition.

A recent example was reported in the Florida appellate case Armiger v. Associated Outdoor Clubs Inc. (Fla. App., 2010). Mr. Armiger sued Associated and Clean Sweep Supply Company after he slipped and fell in a puddle of water in the grandstand of a greyhound track operated by Associated. Although Associated had contracted with Clean Sweep to clean and maintain the areas of the facility — including the grandstand — that were open to the public during racing performances, Associated was held to answer for Clean Sweep’s alleged acts of negligence.

The duty to maintain adequate security also is nondelegable.
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fred thompson.jpgFrom time to time, I will post to my blog site the writings of other individuals on legal topics of interest to me. For those familiar with my own blogs, it is clear that I strongly oppose efforts to limit the authority of juries to render just verdicts. Particularly insidious, in my view, are laws that limit damage caps.

For the most part, it is Republicans who are leading the charge on behalf of big business to curtail the rights of individuals to seek redress within the framework of the civil justice system. Profits over People. That Republicans would be leading the charge has always struck me as running counter to their oft-stated message of personal accountability, responsibility, and consequences for bad acts. “Tort Reform,” as big business propogandists like to call it – or, as I prefer to call it, “Tort Deform” – seeks to protect corporations from consequences, accountability, and responsibility.

Sadly, you never hear Republicans, much less prominent Republicans, speaking out against “Tort Reform.” Until now.

Fred Dalton Thompson (born August 19, 1942), is an American politician, actor, attorney, lobbyist, columnist, and radio host. He served as a Republican U.S. Senator from Tennessee from 1994 through 2003, and ran for the 2008 Republican presidential nomination. He opposes “Tort Reform.”

The following piece, written by Mr. Thompson, was recently brought to my attention. I found that it contained thoughtful and compelling arguments against “Tort Reform.” Kudos to Mr. Thompson. Here’s the opinion piece:

I have been asked why I want to take part in the discussions when the state legislature considers changes to our civil justice system in Tennessee. I am certainly aware of the ideological boxes that advocates like to put folks in when it comes to “tort reform.”

Republicans and conservatives are supposed to be for anything called tort reform. However, I’ve never subscribed to these boxes. Not when I was in the U.S. Senate faced with these issues, and not now.

Some argue that the legislature should tell Tennessee juries that they can award only so much compensation in certain types of cases against certain types of defendants — regardless of the facts and circumstances of the case. I don’t agree with this approach, and I don’t think it’s “conservative.”

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It’s about government closest to the people and equal justice with no special rules for anybody. It’s also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.
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