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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:

  • Loss of Decendent’s Companionship and Protection
  • Mental Pain and Suffering from date of injury
  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Medical and Funeral Expenses due to decedent’s injury/death if paid by survivor

Spouse Dies with Surviving Children and Surviving Spouse
Spouse’s Damages:

  • Loss of Decendent’s Companionship and Protection
  • Mental Pain and Suffering from date of injury
  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Medical and Funeral Expenses due to decedent’s injury/death if paid by survivor

Children’s Damages:

  • Loss of Support and Services from date of injury to date of death (w/ interest)
  • Future Loss of Support and Services from date of death (at present value)
  • Minor children only (under the age of 25 – Section 768.18(2) Florida Statutes), or all children if there is no surviving spouse, may also recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

Parent Dies with Surving Children but no Surviving Spouse
Surviving Children:

  • Loss of Support and Services from date of injury to date of death (w/interest)
  • Future Loss of Support and Services from date of death (at present value)
  • All children may recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

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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:

  • Public Invitee. A person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. (Example: Child in a public park.) This landowner has the following duties: (1) to correct or warn of dangers that the owner knows or should know of by the use of reasonable care, and which the visitor cannot or should not know of by the use of reasonable care; and (2) to maintain the premises in a reasonably safe condition. (See my previous blog on this subject.)
  • Business Invitee. A person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. (Examples: A grocery story patron; a paying fan at a Miami Dolphins football game.) Duty: same as for Public Invitee.
  • Licensee By Invitation. A social guest. Duty: same as for Public Invitee.
  • Uninvited Licensee. A person who chooses to come upon the premises solely for his or her own convenience without invitation either expressed or reasonably implied under the circumstances. (Example: teenagers partying in a parking lot owned by a business establishment.) Duty: To refrain from willful or wanton injury (e.g., to remove any concealed “traps” of which the owner has actual knowledge).
  • Trespasser. A person who enters the premises without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his own convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity. Duty: same as for Uninvited Licensee.

(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:

  1. Waivers for minors relating to inherent risks associated with commercial motorsport activities are authorized;
  2. The execution of a valid waiver creates the presumption that the accident was caused by an inherent risk; and
  3. Clear and convincing evidence rather than just a preponderance of evidence must be demonstrated to overcome the presumption that the accident was caused by an inherent risk.

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The Port of Miami is one of the busiest cruise ship ports in the world. Thousands of passengers from around the world sail from its docks weekly. Many of these passengers become victims of cruise ship negligence, from food poisoning, to slipping and falling, to onboard sexual molestation. For those individuals thinking of bringing suit against any of the various Miami-based cruise line companies, the following basic considerations must be taken into account:

  1. The target defendant must be given written notice within six (6) months of the accident. This requirement will be contained in small print on the back of the cruise ticket. Failure to give this notice will bar further action against the ship owner. Given the harshness of this rule, it is advisable to send the notice by certified mail, return receipt requested. Better to be safe than sorry.
  2. The lawsuit must be filed within one (1) year of the accident. This requirement will also be contained in fine print on the back of the cruise ticket. It is enforceable. Many lawyers unfamiliar with this requirement have mistakenly concluded that Florida’s four year statute of limitations for negligence cases applies. It does not.
  3. Regardless of where the accident happens or where the victim resides, the venue of the case will be In Miami, Florida and the court with jurisdiction over the cause of action will be the United States District Court, Southern District of Florida. We recently settled a case against Royal Caribbean Cruise Lines involving an accident on the high seas involving a gentleman from Terra Haute, Indiana. The lawsuit had to be filed in the Federal Court in Miami.

Cruise ship negligence cases can be a trap for the unwary. This is a specialized area of law and a specialist should be consulted to handle the case.
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History was made today by the Florida Legislature. After remaining at the same level for 30 years, Florida’s sovereign immunity limits – i.e., the maximum amount government entities can be forced to pay to victims in personal injury cases* – were increased by the 2010 Florida Legislature from $100,000 per person/$200,000 per incident, to $200,000/$300,000. It’s about time! (See this previous blog for a further discussion on sovereign immunity laws.)

The bill awaits Governor Charlie Crist’s signature. If adopted, it will become effective in October 2011.

Although these arbitrary limits remain unreasonably low – in my opinion, there should be no arbitrary caps at all … cause the damage, pay the full price. Period. – the legislation is a move in the right direction. Kudos to the Florida Legislature. (Shock of all shocks, I never thought that I would be complimenting any legislative body controlled by Republicans, but credit should be given when due.)
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When the economy lags, like now, so do the amount of reported job-related accidents and workers’ compensation claims filed. I speak from the experience of handling claimants’ workers’ compensation cases for the past 23 years.

Employees fear being fired for having an accident on the job. In my experience, the fear is well founded. Accordingly, when jobs are scarce, employees are more hesitant to report accidents and injuries as compared to when jobs are plentiful.

In the mid- to late-1990s, the Clinton years, when the economy was booming and the next job was right around the corner, employees had little fear of reporting an injury, like a tweaked back – which could be a herniated disc – from heavy lifting or a twisted knee – which could be a meniscus tear or worse – from falling from a ladder. If necessary, employees hired lawyers to assert their rights under the law.

This is not so anymore. Not even close. I have noticed a decided decline in workers’ compensation cases over the past 4-5 years, especially the last 2-3 years. (This is not surprising given that, since December, 2007, the U.S. economy has shed more than 8 million jobs.)

As a result, many employees are failing to report and pursue benefits for serious injuries. The long term consequences of this can be profound. Serious injuries require medical attention and rest. Working through a serious injury is not always the answer. Injuries that fail to heal properly will only worsen over time, resulting in the need for greater medical care and the inability to maintain gainful employment in the future.

This is one of many negative consequences of a poor economy. Let’s hope that things improve soon.
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