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:
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:
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.
Need Legal Guardianship/Guardian of the Property Appointed:
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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From reading United Automobile Insurance Company’s blog page, one could be mislead into believing that every claim made against United is frivilous. This is not my personal experience or that of most other lawyers familiar with United.
A simple inspection of the County Court records for Miami-Dade and Broward Counties will reveal a nearly countless number of resolved PIP (Personal Injury Protection) cases against United Automobile Insurance Company resulting from favorable Plaintiff settlements or verdicts, and an active docket of ongoing cases that, I daresay, will conclude in similar fashion. United’s unidentified blogger fails to disclose this crucial information, choosing instead to suggest that one or two cherry-picked unusual situations demonstrate the whole picture. They do not.
My recent experience: On Monday, May 10, 2010, I settled a PIP case with United inside the Miami-Dade courthouse shortly before our jury trial was scheduled to begin. The lawsuit had been filed in June of 2008 for the payment of PIP benefits to a United insured for medical services and physical therapy provided at Orthopedic Care Center (Aventura) under the guidance and control of a board certified orthopedist (the highest certification an orthopedist can achieve) for injuries resulting from a moderately serious motor vehicle accident.
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When the death of an individual is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person or company, including those occurring on navigable waters, who may be entitled to compensation for the loss is a matter of statutory design, the work of the Florida Legislature. The Legislature’s work is located in what is known as the “Florida Wrongful Death Act,” Sections 768.16 through 768.26 of the Florida Statutes. The particular section of the Act dealing with damages is 768.21 .
Wrongful Death claims are brought through an Estate by a Personal Representative on behalf of those entitled to compensation. In most cases, the Personal Representative is a surviving family member and also entitled to compensation. The Personal Representative hires the attorney to prosecute the case.
Individuals entitled to compensation under the Florida Wrongful Death Act are referred to as “survivors.” The Act also authorizes the decedent’s Estate to recover damages under certain circumstances.
Who is eligible and what is recoverable for damages under the “Florida Wrongful Death Act” is not a simple formula. Multiple factual variations apply. What follows is an outline of those variations:
Spouse Dies – Surviving Spouse but no Surviving Children
Spouse’s Damages:
Spouse Dies with Surviving Children and Surviving Spouse
Spouse’s Damages:
Children’s Damages:
Parent Dies with Surving Children but no Surviving Spouse
Surviving Children:
Florida medical providers must be extremely careful when balance billing patients. The consequences of making a mistake can be costly.
Section 559.72(9) Florida Statutes prohibits attempting to collect a debt that is not due. The punishment can be the assessment of actual damages, a civil fine, and the payment of the Plaintiff’s attorney’s fees and court costs. Section 559.77 Florida Statutes.
Many statutes, most private health insurance policies, and Medicaid and Medicare prescribe how much, if any, a medical provider may balance bill for services provided. For example, authorized medical providers in workers’ compensation cases may not balance bill at all, Section 440.13(14)(a) Florida Statutes, while providers accepting payments through PIP insurance (motor vehicle accident cases) are limited to balance billing 20% of “allowable charges,” which, in most instances, is significantly less than their on-the-books outstanding charges. Section 627.736(5)a.5 Florida Statutes.
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Every first year Florida law student is taught the concept of the Plaintiff with the “Eggshell Skull”.
The proposition is that the Defendant [in an accident case] is responsible for the full extent of the injuries sustained by such Plaintiff even if the degree of damage suffered is more than would be suffered by the average person. In other words, if the Plaintiff was predisposed to suffer an injury or if the injury suffered is worse than it would have been for the average person, the Defendant must compensate the Plaintiff to the full extent of the injuries.
In the example of the Plaintiff with the eggshell, or especially thin/fragile skull, the Defendant, whose negligence caused this Plaintiff to bump his/her head and sustain a fractured skull, is responsible for the fracture even if the worst that would have happened to the average person was a small bump on the head. Put another way, a Defendant “takes the plaintiff as he finds him,” including any pre-existing weaknesses or susceptibility to injury including a weakness caused by a previous injury or pre-existing condition.
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Whether or not a Florida landowner is liable to a member of the public for injuries resulting from an accident on his or her property depends in large part on the status of the visitor at the time of the accident. The status will determine the landowner’s duty of care to the visitor.
The following outline lists the status categories recognized under Florida law and the duty owed to visitors under each category:
(Much of the information contained in this outline was gathered from a table created by Attorney Wilton H. Strickland.)
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In a previous blog, I wrote that Republicans in the 2010 Florida Legislature had designs on shifting the standard of proof in slip & fall cases to favor business establishments. Despite strong opposition from Democrats and the Florida Justice Association, the Republicans have accomplished their goal.
On Apri 14, 2010, Florida Governor Charlie Crist approved House Bill No. 689, effective July 1, 2010. The bill nullifies the holding in Owens v. Publix Supermarkets, Inc, 802 So. 2d 315 (Fla. 2001) and repeals 768.0710 F.S. The new law, which will be 768.0755, eliminates the burden on the defendant, after the plaintiff has established that his or her fall was caused by a transitory substance, to produce evidence that it exercised reasonable care under the circumstances. This is a major shift and one that will prove decisive in many slip & fall cases.
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In a previous blog, I wrote that the 2010 Florida Legislature was attempting to pass a law purposely crafted to reverse or limit the ruling in Kirton v. Fields, 997 So.2d 349 (Fla., 2008), the Florida Supreme Court case which held that pre-injury releases executed by parents on behalf of minors were unenforceable against the minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity. Through the recent passage of CS for SB 2440, it appears that the legislature may have succeeded in limiting Kirton.
The bill authorizes natural guardians of minors to waive, in advance, claims for injuries or death arising from risks inherent in commercial motorsport activities such as motorcross and go-cart parks – the Kirton case involved a minor who died from an accident at a motorcross park. Kirton banned such waivers.
Significantly, and thanks to the tireless lobbying efforts of the Florida Justice Association, the bill does not shield the owners and operators of commercial motorsport facilities and sanctioned events from their own negligence.
The essential elements of the bill are:
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