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The outcome of the 2010 Florida Governor’s race will have a profound impact on the rights of individuals to pursue remedies against big business. Alex Sink will preserve those rights. Rick Scott, of Medicare fraud fame, will work to curtail them.

When Jeb Bush became Florida’s Governor, in 1998, Florida politics took a radical (not to be confused with conservative) turn to the right. With Florida’s House and Senate chambers controlled by Republicans, draconian laws designed to limit the ability of individuals from obtaining relief through the court system were passed with little resistance. (It was not unusual for these laws to gain passage with little to no Democratic support.) This was the Golden-Period in Florida for big business, the dark days for fairness and justice.

After 8 years of Jeb Bush, Floridian’s elected Charlie Crist as its governor, in 2006. He proved to be Jeb-light. Beholden to the radical-right, but kinder than his predecessor, Governor Crist encouraged and signed into law many anti-consumer, anti-individual rights laws, but also vetoed some egregious bills that Jeb Bush would have gladly approved. Compared to Jeb Bush, Crist respected the the rights of individuals.

Emboldened by high approval ratings, when Republican Mel Martinez retired from the U.S. Senate, Governor Crist decided to run for the office. This opened the door to career politician Bill McCollum and political neophyte Rick Scott to seek the Republican nomination as his replacement.

In the year of the Tea Party, Rick Scott pulled off a mild upset in the primary election by defeating McCollum. On the Democratic side, Alex Sink handily won her party’s nomination. Hence, the battle lines are drawn: Sink/Individuals v. Scott/Big Business.

Who Floridians elect as their next Governor will determine the type of state Florida will be for generations to come. Will Florida be a state that values and respects the rights of individuals above all else, as in “of the people, by the people, and for the people” (The Gettysburg Address), or will it be a state that places profits over people?

Republicans remain firmly in control of both chambers of the The Florida Legislature. As a group, they are more radically-right than the body in power during Jeb Bush’s rule, more determined than ever to prevent big business from being accountable to individuals. If Rick Scott is elected, Florida’s legislature will be able to operate without restraint. Every draconian bill passed by the legislature will be rubber-stamped into law by a Governor Scott. Not so a Governor Sink.

One example of the sharp differences between the candidates concerns the duty owed by insurance companies to their policyholders. Candidate Sink believes that insurance companies have a fiduciary duty to act in the best interests of their policyholders. This means that insurance companies must act in good faith to pay legitimate claims in a timely manner. This principle is supported by well-established Florida law. When an insurance company violates the principle, hence, acts in bad faith, it faces serious consequences. These consequences have done more than anything else to keep the insurance industry in line. Because Florida’s bad faith laws cut into insurance company profits, Rick Scott wants to eliminate them. (Do not believe the propaganda that payments made by insurance companies for acting in bad faith will be passed on to consumers. Bad faith payments are not allowed to be taken into consideration when determining rate premiums.)

Consider this: Even with strong bad faith laws, it is always a battle to resolve claims fairly with insurance companies. Imagine how much more difficult it will become if the bad faith hammer is taken away from the people. It is not a pretty picture.

Alex Sink, a successful yet compassionate businesswoman, will protect the rights of individuals by proposing positive and helpful legislation, while vetoing negative legislation which is surely to come from our Florida Legislature.

Please click here – ALEX SINK – to learn more about her.

(If Rick Scott’s policies aren’t enough to scare you, consider this segment: Rick Scott and the 5th Amendment.)
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In a previous blog, I wrote about the “enhanced injuries” doctrine in Florida. The doctrine stands for the proposition that a wrongdoer can be liable for damages extending beyond those resulting from the initial negligence. The example I used was of a simple car accident that triggered a defect in the victim’s vehicle, which caused a fire and catastrophic injuries well beyond the minor injuries resulting from the initial impact alone. Today’s blog is about the common characteristics associated with enhanced injury cases in the context of motor vehicle accidents and the various defects leading to those accidents.

Common characteristics include:

  • One or a few occupants are catastrophically or fatally injured while others have minor or no injuries;
  • Minor collisions resulting in catastrophic injury or death – see example in first paragraph;
  • Severe damage to or failure of a localized area of the vehicle (examples: roof crush or seat belt collapse);
  • Seat-belted occupants who are seriously injured or who are partially or fully ejected.

Typical Reasons for Enhanced Injuries:

Post-Impact Fuel Fed Fire Defects
Auto engineers agree that an occupant who survives the crash forces should not be injured or killed by a subsequent fire. Fire causing defects include:

  • Fuel Tank Location & Shielding. Fuel tanks placed in positions of risk to crushing or compromise, or not adequately protected against puncture damage.
  • Siphoning, Filler Tube & Fuel Line Failure: Excessive post-accident fuel leaks caused by failing to install inexpensive check-valve devices.

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tire_blowout.jpgThere is more to tire safety than adequate tread depth and proper inflation levels. Age alone is a major factor in tire safety. As tires age, the rubber dries out and makes them more prone to blowouts and tread separation. This applies to new-old-stock tires as well as to used tires.

No laws in the United States restrict the age of tires. In states with inspection laws – Florida is not one of them – all that is tested is tread wear. A tire has a useful life of six years. Accordingly, for consumers to get at least two years of useful life from a tire, it should be no more than four years old at the time of purchase.

Unfortunately, retailers can sell tires that are more than six years old. Many are much older, sometimes 15 years and above. These tires are accidents waiting to happen.
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We are frequently asked if insurance premiums will be increased or policies canceled or non-renewed because of a motor vehicle accident. If the insured was not substantially at faulpretty answer is No. See Florida Statute 626.9541(1)(o)3. An insurance company’s violation of this statute may subject it to a civil lawsuit and government fines for engaging in an unfair and deceptive act.

Further consumer protection is afforded by Florida Statute 626.9702, which provides as follows:

(1) No insurer shall impose or request an additional premium for automobile insurance, or refuse to renew a policy, solely because the insured or applicant was convicted of one or more traffic violations which do not involve an accident or do not cause revocation or suspension of the driving privileges of the insured, without adequate proof of a direct, demonstrable, objective relationship between the violation for which the surcharge was imposed and the increased risk of highway accidents.
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Reproduced below is a letter published in the September/October 2010 issue of The Florida Bar Journal. It was written by my friend, collegue, superb trial lawyer, and advocate for the underprivileged, Cris Boyar. The letter exposes the dirty propaganda disseminated by the insurance industry regarding PIP (Personal Injury Protection) lawsuits. A must read.

Elimination of PIP Multipliers Response

I read the slanted article, “Putting the Lid Back on Pandora’s ‘Jar’: A Clarion Call for the Elimination of Contingency Risk Multipliers in Florida PIP Litigation,” by insurance defense lawyers Douglas Stein and Donald Blackwell in the July/August issue. While it is long on words, it is clearly short on reality. The article fails to mention that insurance companies drive up legal fees by causing expensive and protracted litigation. In the real world, insurance companies not only routinely and unreasonably deny valid claims, but when sued, the insurers file frivolous defenses, deny admissions that should be admitted, propound significant discovery, object to basic discovery, force countless hearings, schedule numerous unnecessary depositions of collateral witnesses, and demand jury trials that can last for days. If the insurer loses, it demands attorneys’ fees hearings and files appeals. Then, after all of the litigation that it caused, the insurer complains the legal fees awarded against it are too high and do not bear a relationship to the amount in controversy. The hypocrisy is obvious to those who sue insurance companies for denying valid claims.

If an insurer wants to limit its exposure to legal fees and costs, it can simply pay valid claims timely. It could also pay the claim in response to the statutorily mandated presuit demand letter, which allows 30 additional days to pay without risk of paying attorneys’ fees. If it is sued for not paying a claim, it can instruct its defense lawyers to agree to a bench trial, admit allegations and admissions, and agree to narrow the issues. If the insurer believes it will lose the case, the insurer, at any time, can simply confess judgment to stop the clock. Alternatively, the insurer can file an offer of judgment. If the insurer then prevails in the litigation, the insurer will be reimbursed its attorneys’ fees and costs by the insured or the medical provider.

Rather than fall prey to insurance industry propaganda, the public should realize the insurance industry has embarked on a strategic campaign designed specifically to poison the pool of potential jurors and bar its insureds’ access to courts, while at the same time filling its coffers with premiums Florida citizens are legislatively mandated to pay.

It must be pointed out that multipliers are very rarely awarded in PIP cases. Most lawyers who handle PIP claims reject a significant number of cases for various reasons. The unfortunate result is that many insureds and medical providers have no recourse when the insurers wrongly and routinely deny valid PIP claims. This is exactly what some of the billion dollar insurance companies hope to accomplish. Accepting premiums and denying claims is a very profitable business model.

The multiplier is the only tool available to encourage competent counsel to accept the most difficult cases that virtually every other lawyer would reject. The applicability of the multiplier should be preserved by the legislature. The trial judges, observing the conduct of counsel for both sides, should be trusted to make the correct decision based on existing Florida law.
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For the past twenty plus years, the quality and value of workers’ compensation benefits in Florida have diminished. This is especially true for medical benefits.

There was a time in Florida when injured workers had a strong say in the selection of their primary care physician. In turn, the primary doctor could choose other physicians to provide specialized care. The employer/carrier was required to pay for all reasonable and necessary services.

Because this system limited the ability of employers/carriers to control the injured workers’ medical care, they petitioned the legislature for changes. The legislature answered their call … or so they thought.

In 1994, the Florida Legislature met in Special Session to revamp the workers’ compensation system. A primary focus was medical benefits. One of the brainstorms that came out of the Special Session was Managed Care.

Employers and carriers believed that a managed care system would give them greater control over the medical care received by injured workers. The plan was to limit the pool of doctors who would be allowed to treat injured workers. However, it did not work as planned because most managed care lists of authorized providers included doctors who were friendly to injured workers. Injured workers were free to choose from the list. The system survived until 2002.

In 2002, the Republican-controlled Florida Legislature, with strong backing from Governor Jeb Bush, dramatically limited the amount of control injured workers would have over their medical care. Although managed care remained in place, employers/carriers were given an alternative option of choosing all doctors. No longer would injured workers be allowed to choose their own doctors.

Not surprisingly, employers/carriers prefer this option over the more generous managed care system. Accordingly, it is rare today to find an employer or carrier utilizing managed care. (Also during this legislative session, the right of injured workers to second opinions and carrier-paid independent medical examinations (IMEs) were eliminated, making it more difficult to challenge the opinions of the employer/carriers’ hand-picked doctors.)
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Florida Statute Section 768.21 outlines who is eligible for benefits under Florida’s Wrongful Death Act. (See this blog for an easy-to-understand breakdown.) With one exception, the statute – although debatable as to its fairness – treats all victims alike. The exception? The survivors of those who have died from medical malpractice/negligence.

Sections (3) & (4) of Statute 768.21 determine the eligibility of children and parents of decedents to compensation under the Act. Section (3) provides that “[M]inor children of the decedent and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury,” while Section (4) declares that “[E]ach parent of an adult child may also recover for mental pain and suffering if there are no other survivors.” (Florida Statute 768.18 defines “minor children” as children under 25 years of age, notwithstanding the age of majority)
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The United States Congress has declared that the purpose of the Family Medical Leave Act (FMLA), located in Chapter 28 of Title 29 of the U.S. Code , is “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” Section 2601(b)(1).

To meet this goal, the FMLA is designed “to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. Section 2601(b)(2).

An employer who violates the FMLA, may be required to compensate a damaged employee as follows:

  • Pay money damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or
  • In a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, pay any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee;
  • Pay the interest on the amount described in the first bullet point calculated at the prevailing rate; and
  • Pay an additional amount as liquidated damages equal to the sum of the amount described in first bullet point and the interest described above, except that if an employer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest, respectively; and
  • Provide such equitable relief as may be appropriate, including employment, reinstatement, and promotion.

    • (These elements are contained in Section 2617 of the Act)

The employee has a duty to mitigate damages, in other words, diligently seek new employment. Failure of the employee to do so may preclude an award of back pay for the period during which employment was not sought. See, e.g., Miller v. AT&T Corp., 250 F.3d 820, 838 (4th Cir. 2001).

The award available under the first bullet point is considered compensatory or actual damages. Actual damages differ significantly from the liquidated damages award under the FMLA. Instead of being actual damages, the liquidated damages are a penalty for failing to act in good faith and with reasonable grounds for believing that its act or ommission was not a violation of 29 U.S.C. Section 2615. Importantly, the burden is upon the employer to prove both elements.
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To the surprise of many, most of the doctors who work in Florida’s hospital emergency rooms are not hospital employees. Instead, they are independent contractors. (It is quite rare for Florida hospitals to employ their ER physicians.) Equally surprising is that Florida law does not hold a hospital liable for a doctor’s negligence simply because the hospital grants privileges or credentials to the doctor, unless there was negligence in the credentialing. These matters become important when emergency room malpractice causes serious personal injuries and death.

With the reality of arbitrary statutory damage caps limiting the monetary exposure of medical negligence defendants, it is often necessary [for the victim or the victim’s family] to recover from multiple parties to be justly compensated for serious injuries or death. For such damages resulting from negligent emergency room services, the hospital would seem to be a natural target. Not so.

Today’s hospitals typically take the position that the doctors working in their emergency rooms are independent contractors, individuals for whom they have no legal liability when things go wrong. Strictly speaking, they may be right. Independent contracts are not employees, whose negligence subjects the employer to liability under the principle of respondeat superior (the Latin meaning is ‘let the master answer’).

Thankfully, Florida law does not accept the strict view of this consequential subject.

The main legal principles being used to hold hospitals accountable are:

  • Non-delegable duty
  • Actual agency
  • Apparent agency
  • Negligent credentialing

Non-delegable duty. This theory, which is not limited in its application to medical negligence cases, is most often utilized for activities involving the risk of serious injury or loss. In the context of emergency rooms, the risk is addressed by statutes and rules which set forth strict guidelines for modes of operation. Recent court decisions have relied on these rules and regulations to find that hospitals have a non-delegable duty to provide various non-negligent services in its emergency rooms.

Actual agency. The elements necessary to establish an actual agency relationship are: acknowledgment by the principal that the agent will act for him, the agent’s acceptance of the undertaking, and control by the principal over the actions of the agent.

Apparent agency.The main element of this principle is the impression through words and actions a hospital conveys to the public about its ER. Through advertising and appearance (e.g., uniforms; logos; paperwork; etc.), the general public can reasonably believe that an ER’s physicians are hospital employees. This is usually a fact question requiring a decision by the trier of fact, typically a jury.

Negligent credentialing. Involves granting privileges to an unqualified physician to practice medicine in the hospital. The mechanism for allowing a doctor to ply his trade in a hospital setting is supposed to be more than a rubber-stamp process. Thoughtful consideration based on rigorous standards should be followed.
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There is a distinct lack of unanimity throughout the country regarding the appropriate duty, if any, of a landowner for dangers presented by natural hazards on the landowner’s property. One camp applies the so-called “agrarian rule,” which provides that a landowner owes no duty to persons harmed by natural conditions on the land. The other camp applies the principle that a landowner may owe a duty of care for dangers posed by natural conditions when an invitee uses the property in a reasonable manner. (See this blog for the meaning of the legal term “invitee.”)

(Examples of such natural hazards include: tree roots obscured by leaves; view of sidewalk blocked by foliage; hole in ground covered by tall grass; traffic control device – e.g., stop sign, yield sign – obstructed by tree branches.)

Thankfully, Florida falls into the latter camp.
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