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In Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977), Hertz Corporation, vicariously liable for the negligence of the driver of its vehicle, sought to limit its financial burden by bringing a treating doctor into the case who, it claimed, made the crash victim’s injuries worse through medical malpractice. The Florida Supreme Court said No.

The significance of the case is that initial tortfeasors are fully responsible for all reasonably foreseeable damages resulting from the original accident. Medical malpractice is considered a foreseeable outcome of receiving medical treatment for injuries suffered in the original accident.

Even with Florida’s adoption of comparative fault law (Section 769.81 Florida Statutes), Stuart v. Hertz remains good law. See Association for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520 (Fla. 5th DCA 1999).
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Most Florida motor vehicle insurance policies extend coverage to its insureds for accidents involving temporary substitute automobiles. The typical requirements of the insurance policy provision are that the vehicle is used as a substitute for the owned auto when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction AND with the permission of the owner. A substitute vehicle can include a rental car.

In Geico Insurance Company v. Shazier, So.3d , 35 FLW D539 (Fla. 1st DCA 3-10-2010), the permission element of the insurance provision was put to the test. The insured lost.

Kutusha Shazier and her husband were insureds under a motor vehicle policy with GEICO. Due to mechanical problems with her Ford Expedition, Kutasha rented a vehicle from Avis Rent-A-Car System. The rental agreement provided that only Kutasha Shazier was allowed to operate the vehicle and if the provision was violated, the rental agreement was automatically terminated.

Without permission from Avis, Shazier allowed another person to operate the vehicle. That person caused a serious accident resulting in injuries to numerous passengers and one fatality.
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Florida’s Wrongful Death Act, located at Sections 768.16-768.26 of the Florida Statutes, concentrates on loss suffered by survivors and creates a separate entitlement to damages for each survivor. However, the survivors cannot bring separate legal actions. Rather, the personal representative is the only party with standing to bring a wrongful death suit on behalf of the estate and the survivors. See § 768.20, Fla. Stat. Under the legal procedure set out in the wrongful death statute, all survivors and claimants are required to participate in a single legal action to be filed by the estate on behalf of all the survivors. Upon trial, damages are to be apportioned to each survivor in the verdict form.” Wiggins v. Estate of April Brown Wright, 850 So.2d 444 (Fla., 2003).

The personal representative selects the attorney who will pursue the recovery on behalf of the estate and the survivors. The typical contingent fee retainer agreement in these cases provides for attorneys’ fees from 33-1/3% (case settled pre-suit) to 40% (post-suit, post-Answer [to lawsuit]) of the combined amount recoved by the estate and the survivors.

In many instances the survivors entitled to compensation in a wrongful death action may be in agreement both as to prosecuting a wrongful death claim, and in the distribution of any recovery. When this is the case, this procedure will work well, especially when all of the survivors have a commonality of interest and a single attorney can represent those interests. This may often be the case, for example, when a parent-spouse is killed and the surviving spouse and children are represented by the same attorney.
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Florida Statute 767.04 imposes strict liability on dog owners for injuries suffered in public places and in or on private property when the victim is lawfully there. The former viciousness, in other words, the dog’s history, is irrelevant, hence the strict liability aspect of the statute.

However, the victim’s own negligence (e.g, taunting the dog) can be considered to reduce or avoid a dog owner’s liability.

Additionally, except as to children under the age of 6, “or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words ‘”Bad Dog,”‘ the owner can avoid liability.
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In Patricia Farley v. Chase Bank, U.S.A, N.A., No. 4D09-651 (opinion published on June 9, 2010) (not final until disposition of timely filed motion for rehearing), the District Court of Appeal of the State of Florida, Fourth District, sent a cautionary message to those who fail to object within a reasonable period of time to incorrect account statements.

In every civil legal case, the initial burden of proof is upon the Plaintiff to present a prima facie case. In a lawsuit brought to collect a debt, this means that the Plaintiff/Creditor must come forward initially with probative evidence of the correct amount of the debt and the liability of the debtor. Without doing so, the Plaintiff/Creditor’s case will fail.

In the Farley case, before the lawsuit was filed Chase Bank had rendered an account statement to Ms. Farley. When Ms. Farley failed to pay or challenge the correctness of the statement, she was sued by the bank.

At the trial court level, Chase Bank came forward with evidence that Ms. Farley had received the account statement and failed to challenge its correctness. Ms. Farley insisted that Chase Bank must prove its case by providing an itemized copy of the account sued upon. The trial court disagreed with Ms. Farley, concluding instead that the bank had made a prima facie case by presenting evidence that Ms. Farley had failed to challenge the correctness of the pre-suit account statement. Ms. Farley’s appeal of the trial court’s decision was rejected by the 4th DCA.
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Florida employees injured at work may be entitled to retraining benefits. The procedure is outlined in Section 440.491 of the Florida Statutes.

Upon referral of an injured employee by the carrier (defined in section (1)(a) of 440.491), or upon the request of an injured employee, the Florida Department of Education (department) shall conduct a training and education screening to determine whether it should refer the employee for a vocational evaulation and, if appropriate, approve training and education or other vocational services for the employee. The department will not approve training and education unless it determines that the reemployment plan is likely to result in a return to suitable gainful employment.

If the department approves training and education, the money to pay for the services will come from the Workers’ Compensation Administration Trust Fund, established by s. 440.50. The training and education can be provided through community colleges, approved career centers, and other vocational services. Under some circumstances, the department will pay for a temporary residence at or near the facility where the services are being provided.
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Permanent Total Disability (PTD) is the only periodic (bi-weekly) monetary payment available to injured workers after maximum medical improvement (MMI) is reached. The standard for qualifying for PTD benefits has changed numerous times over the years.

When I began handling workers’ compensation cases, in 1987, to qualify for PTD benefits an injured worker had to have a listed injury such as total blindness, amputation of an arm, or a severe brain or closed head injury, or establish that he or she was unable to perform light duty work uninterruptedly. (Light duty is commonly recognized as: (1) no lifting > 20 lbs.; (2) frequent (1/3 to 2/3 of the time) lifting or carrying objects up to 10 lbs.; (3) standing 6 out of 8 hours per day; and (4) stand and use arms and hands.)

This standard applied until 1994, when the Florida Legislature, in a Special Session convened by Governor Lawton Chiles, replaced the light duty standard with a formula tied into the Social Security Disability (SSD) standard. The Legislature believed that this formula would make it more difficult for injured workers to qualify for workers’ compensation PTD benefits. In practice, however, just as many if not more injured workers qualified for PTD under this standard.

This did not sit well with Governor Jeb Bush and his corporate constituents, so in 2002, the Republican-controlled Florida Legislature changed the standard again. The SSD formula was replaced with the requirement that injured workers must show they are unable to engage in at least part-time sedentary employment within a 50-mile radius of the employee’s residence. (Sedentary duty is commonly recognized as: (1) no lifting > 10 lbs. at a time; (2) occasional (1/3 of time) lifting or carrying small articles like docket files, ledgers and small tools; (3) sit 6 hours during 8 hour day and stand and/or walk the remaining 2 hours; and (4) good manual dexterity in both hands.) When coupled with the Legislature’s companion 2002 changes curtailing the amount of attorneys’ fees an injured workers lawyer was allowed to receive, the change dramatically reduced the number of individuals who qualified for PTD benefits.

The standard proved so onerous, that the law was revisited a few years later. The outcome of the Legislature’s decision to reconsider resulted in our current law, which provides as follows: “[I]n order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” Section 440.15 Florida Statutes (2009).
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Individuals and companies sued in Florida on debts (real & fabricated) and delinquent mortgages are not without legal defenses or affirmative relief. Here is a checklist of some of the available legal principles:

  • Estoppel – Equitable, Promissory and Collateral.
  • The action is barred by the statute of limitations applicable to such actions.
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In my view, one of the most important decisions in the history of Florida workers’ compensation jurisprudence is Aguilera v. Inservices, Inc., 905 So.2d. 84 (Fla. 2005). In a nutshell, Aguilera authorized civil lawsuits against insurance carriers and their adjusters “for harm caused subsequent to and distinct from the original workplace injury.”

The Supreme Court opinion provides a great amount of detail about the harm to Mr. Aguillera caused by the insurance carrier’s adjuster, which I will not outline here. For purposes of this blog, suffice it to say that the adjuster made arbitrary, mean-spirited, baseless, and egregious decisions about medical matters which put Mr. Aguillera’s life at risk.

As a result, the insurance company and the adjuster were sued for civil damages in an action separate and apart from Mr. Aguillera’s workers’ compensation case. They defended by arguing that they were immune from being sued civilly, pursuant to Section 440.11, Florida Statutes, that any complaints about how the workers’ compensation claim was being handled must be addressed through the workers’ compensation case itself.

Although the 3rd District Court of Appeal agreed with the civil defendants, the Florida Supreme Court did not.

The Florida Supreme Court was careful to point out that its decision was not authorizing civil actions in cases involving simple claim delay or simple termination of workers’ compensation benefits. The court recognized that the workers’ compensation system had appropriate remedies for these situations. In other words, the civil remedy established by the court is limited to egregious and outrageous claims handling.

The importance of the decision is that carriers and adjusters know there is a line beyond which they cross at their own risk. This has induced them to handle claims very carefully and with due regard for the health of injured workers.
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Personal injury claims of individuals under the age of 18 present unique procedural demands for the legal practioner. For starters, the attorney represents the minor through the minor’s legal guardian, typically one parent or both. This is because minors cannot pursue claims through the court system or settle them, pre- or post-suit, on their own.

Whether or not any other procedural requirements must be met depends on the gross amount of the settlement. The chart below sets forth the standards for these other requirements.

POTENTIAL ADDITIONAL REQUIREMENTS:

Court Approval of Settlement Required:

  • Gross Settlement is $15,000 or less – No, unless a lawsuit has been filed, then yes. Sections 744.301(2) & 744.387(3)(a) Florida Statutes.

    Court approval is obtained by filing a Petition for Approval of Minor’s Settlement with the Court. The Petition should contain details of the case, including the issues of liability and damages, the amount of the settlement, and the amount of attorneys’ fees and costs. In many instances, the Court will approve the settlement without a hearing.

  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes. Section 744.387(3)(a).
  • Gross Settlement in excess of $50,000 – Yes. Section 744.387.

Need Legal Guardianship/Guardian of the Property Appointed:

  • Gross Settlement is $15,000 or less – No.
  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes, but only if the Net settlement (after gross settlement is reduced by attorney’s fees and costs) exceeds $15,000. Section 744.387(2).
  • Gross Settlement in excess of $50,000 – Yes, but only if the Net settlement exceeds $15,000. Section 744.387(2).

It is not unusual for the legal guardian and the guardian of the property to be the same individual or individuals. This person will be charged with collecting the amount of the minor’s net judgment and executing all necessary releases. However, the court will retain sole jurisdiction to determine the allocation and use of the minor’s net settlement, oftentimes insisting that it be put into a conservative account for safekeeping until the minor reaches majority. Until majority, whenever the legal guardian wishes to use the minor’s money, court approval must be obtained. The Court’s determination will be based on what is in the minor’s best interest.
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