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law books.jpgPersonal Injury Protection (PIP) insurance is mandatory in Florida for owners of operational motor vehicles and usually provides coverage up to $10,000 for medical benefits and lost wages. In many instances, the coverage will extend to other individuals besides just the owner of the vehicle.

After choosing a carrier, the vehicle owner must complete an insurance application to obtain the coverage. Most applications require that all drivers residing in a household be listed. The purpose of this requirement is for the insurance company to be able to properly assess its risk to determine the appropriate premium (i.e., cost of the policy).

Section 627.409 Florida Statutes gives the insurer the right to deny coverage if a misrepresentation in the insurance application is: (1) fraudulent; (2) material to the risk being assumed; or (3) the insurer in good faith either would not have issued the policy or would have done so only on different terms had the insurer known the facts.

Most people would agree that an insurance company should be allowed to deny coverage to an undisclosed driver injured in an accident while driving the covered vehicle. Quite simply, the carrier should not be required to provide coverage to someone on whose behalf an insurance premium was not paid. A more problematic scenario involves the question of coverage for a listed driver injured in an accident while driving the covered vehicle, where the carrier learns that an unlisted listed driver also resides in the household. Regretably, the trend in Florida seems to be towards allowing carriers to deny coverage to the disclosed driver. See United Auto. Ins. v. Salgado , No. 3D07-461 (Fla. App. 8/5/2009) (Fla. App., 2009).
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Injured workers in Florida suffered a major setback in May 2009, when the Florida Legislature adopted a workers’ compensation bill which significantly limits the amount of fees their attorneys may recover from workers’ compensation insurance companies for forcing them to pay benefits through litigation. Not surprisingly, the Republican-controlled legislature failed to pass a similar measure limiting the amount of fees insurance companies may pay their own lawyers to defend against paying benefits to injured workers.

In a last minute about-face, the Florida Senate, led by Jeff Atwater (R), abandoned its own fair bill in favor of the House version sponsored by South Florida Representative, Anitere Flores (R). The surprise move came just one day after Senate President Atwater announced from the Senate podium that the Senate preferred its version of the workers’ compensation bill over the House’s version.

The legislature’s action was in response to a Florida Supreme Court decision handed down in October, 2008, in Emma Murray vs. Mariner Health and ACE USA, 994 So. 2d 1051 (Fla. 2008), a case which held, in essence, that fees paid to claimants’ attorneys must be reasonable. The 2009 Florida Legislature felt otherwise, choosing instead to craft legislation which removed the word “reasonable” from 440.34, the section of the Florida statute dealing with claimant’s attorney’s fees. As a result, employers and carriers ordered by workers’ compensation judges to furnish wrongly denied benefits no longer have to pay the claimant’s attorney reasonable fees for successfully securing the benefits.
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Tort “deformers” purposely fail to make full disclosure in their holy war against the civil law justice system. A prominent example of something not being divulged is the well-established principle of law commonly known in Florida as Comparative Fault or Contributory Fault/Negligence. Quite simply, this concept provides that the Plaintiff’s degree of fault, if any, will be held against him or her in a claim against others arising out of an accident resulting in injury or death.

In every personal injury case, the degree of damage (injury or death; economic losses) sustained by the Plaintiff equals 100%. If the defendant or defendants – the parties being blamed [by the Plaintiff] for causing the accident – are found by a jury to be 100% at fault, they will be responsible for paying 100% of the Plaintiff’s damages. If, however, the Plaintiff is found to be at-fault in any degree for causing the accident, his or her recovery will be reduced accordingly. For example, if a jury determines that the Plaintiff has sustained damages totaling $200,000, but also finds that the Plaintiff is 25% at-fault, the Plaintiff’s net recovery will be $150,000.

This principle of Comparative Fault is just one of many legal concepts never mentioned by those forces bound and determined to bar the courthouse doors from the men, women, and children of this state in need of legal redress.

Stay tuned for further examples.
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February 27, 2011 blog on the issue: Survey of Florida’s Wrongful Termination Workers’ Compensation Law

Although the rights of injured workers under Florida’s Workers’ Compensation statutes have consistently been eroded away under Republican rule, one protection has remained constant over the years. Per Section 440.205 Florida Statutes (2009):

Coercion of employees.–No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

The protection afforded injured workers under Section 440.205 is broad, prohibiting not only the firing of an employee, but also threats, coercion, and intimidation. Chase v. Walgreen Co., 750 So.2d 93 (Fla. 5th DCA 1999). Moreover, a “valid claim” means one that is meritorious, not just compensable. Smailbein v. Volusia County Sch. Bd., 801 So.2d (Fla. 5th DCA 2001).
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Pharmaceutical drugs can work positive wonders. Unfortunately, if abused or misused, they can be terribly harmful. In today’s fast-paced world, simple errors involving prescription medicine are not uncommon. From a scribbled doctor’s prescription, to failing to learn of allergies or the contraindications of mixing medicines, to dispensing medication to the wrong patient, mistakes happen. The numbers are staggering.
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Notes.jpgParties and witnesses involved in legal proceedings should follow these basic rules when being deposed:

  1. Listen carefully and allow the attorney to complete each question before responding;
  2. If you do not understand a question, ask the attorney to repeat the question or rephrase it;
  3. Answer only the question asked and do so in simple and succint terms. For example, if the question calls for a simple yes or no response, answer accordingly;
  4. If you know the answer to a question, do not be cute and answer, ‘I do not remember’ or something along those lines. The correct answer may be important and to answer that you don’t remember, makes it more difficult to give the correct testimony at a later date;
  5. If an explanation is required for the response to be accurate, give it, but keep it short and simple and on point;
  6. Do not be argumentative or defensive in your responses; and
  7. Tell the truth.

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People may be surprised to learn that accidents that occur on property from hazards which are open and obvious, are not absolutely barred by law from being the fault of the landowner. The primary legal significance of hazards being open and obvious is that landowners are under no duty to warn of the conditions, but this rule does not completely foreclose victims from legal remedies. In contrast, when perils are concealed and known or should be known to landowners, and unknown to invitees (persons rightfully on property) even with the exercise of reasonable care, landlords also have a duty to warn invitees.
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In a conscious effort to create a negative view of trial lawyers and civil lawsuits, Corporate America has for years distorted the truth about the famous McDonalds coffee spill case, the poster child for the frivolous lawsuits mantra. Sadly, the public has fallen for the propoganda hook, line and sinker.

Why, might you ask, would Corporate America wish to turn the public against trial lawyers and civil lawsuits? The answer is simple. Profits over people. By limiting the right of individuals to seek redress against big business, they become less accountable for their negligent conduct. Civil lawsuits make big business pay for its negligence. Limit civil lawsuits, limit accountability.

How, might you ask, does the propoganda limit accountability? The unknowing and gullible public presses its politicians to do something about the “lawsuit crisis.” “Conservative” legislators, all too happy to take up the cause – although not without a price – you can be sure that the loudest political voices for curtailing civil lawsuits, receive the most money from big business – devise laws with the effect of making it ever more difficult to take on big business in our courts of law. Barring the courthouse doors, so to speak, from “We, the People.” It has been happening for years, and it’s not pretty. Frankly, it is frightening. Big business run amock.

Back to the McDonalds coffee spill case.

Background: In 1994, a New Mexico jury awarded a woman 2.9 million in a case arising out of hot coffee spilling onto her lap while sitting in a car driven by her grandson. The Plaintiff (the person who received the jury verdict) was a 79-year old retired sales clerk who had never before sued anyone. When she placed the coffee between her legs and removed the lid to add cream and sugar, the scalding hot coffee spilled out onto her lap, causing third-degree burns on her groin and thigh area. She was hospitalized for eight days and incurred medical expenses in excess of $11,000. She was left with permanent pain and scarring. The jury trial lasted 7 days.

The untold story:

  • The woman’s request to have her medical bills paid was countered with an offer from McDonalds in the amount of $800
  • It takes less than 3 seconds to produce third-degree burns at 190 degrees, 12-15 seconds at 180 and 20 seconds at 160. McDonalds brewed its coffee at 195 to 205 degrees.
  • McDonalds own records revealed that in the previous 10 years, it had received more than 700 reports of burns from scalding coffee, and the company had spent more than $500,000 in settling these claims

The jury awarded damages of $200,000, reduced to $160,000 based on the plaintiff’s 20% negligence for spilling the coffee, and punitive damages (for conduct held to be willful, malicious and reckless) in the amount of $2.7 million, later reduced by the trial judge to $480,000. Both sides appealed and later reached a confidential settlement. Interestingly, One day after the jury verdict, the coffee temperature at the restaurant in location was tested and had been reduced to 158 degrees.
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doctor.jpgIndividuals injured in Florida accidents through the negligence of others may be entitled to compensation for their injuries. To determine fair compensation value, the injuries must be documented and treated by qualified medical professionals. Unfortunately, not everyone has insurance or other means to pay for medical care. Thankfully, some medical providers will provide care to genuinely injured individuals on the expectation of receiving payment from the personal injury case recovery. Because of the uncertainty of achieving success in the personal injury case, it is a risk for the medical providers, who often invest substantial amounts of time and resources, to provide the care. Fortunately, the medical providers understand the risk and do not expect the patient to pay out-of-pocket when no recovery is made. Due to the risk, medical providers limit this service to trustworthy lawyers willing to provide an honest analysis of the eventual outcome of the underlying case.

Hats off to these professionals for providing this valuable service.

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In simple terms, the human spine consists of bones (vertebrae), the spinal cord, nerves, and intervertebral discs. The spinal cord is about 18 inches in length and extends from the base of the brain, surrounded by the vertebral bodies, down the middle of the back, to about the waist. The nerves branch out from the spinal cord to carry signals throughout the body.

Intervertebral discs, composed of a gel-like substance (nucleus pulposus) contained within an outer skin (anulus fibrosus), sit between the bony vertebrae. They act as shock absorbers between the vertebrae and allow the spine to be flexible. The spinal cord runs parallel to the intervertebral discs within the spinal column.

Healthy intervertebral discs pose no threat to the spinal cord and nerve roots. However, trauma associated with accidents (slip & fall; motor vehicle crashes) may cause the nucleus pulposus to bulge or herniate (rupture). A bulge is when the nucleus pulposus becomes distorted but remains contained within the anulus fibrosis. A herniation is when the nucleus pulposus breaks through the anulus fibrosis.
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