Florida Injury Attorney Blawg

Limited Application of Florida's Motor Vehicle Accident/Crash Report Privilege

Thu, 17 May 2012 10:17:52 -0500

To promote the gathering of facts surrounding motor vehicle accidents, the Florida Legislature has devised a number of statutes each with the essential character of compelling certain individuals to disclose information to law enforcement personnel.

Florida Statute 316.066(1) requires a driver to make a report when involved in a crash where there is bodily injury, death, or damage to a vehicle

361.062(1) requires a driver to give his or her information to a police officer upon request when a crash results in injury or death

316.064(2) requires the occupant of a vehicle to make a report under sections 316.065 and .066 when the driver is physically incapable of making a report

316.064(3) requires the owner of a vehicle to make a report under chapter 316 when the driver is incapable of making a report

316.065(1) requires the driver of a vehicle involved in a crash resulting in injury or death to report the accident to the police

Some of the statements could be self-incriminating. To "ensure that the state does not violate an individual's constitutional privilege against self-incrimination when he or she is compelled to truthfully report to law enforcement the facts surrounding an automobile accident," a statutory privilege was enacted. State v. Cino, 931 So.2d, 164, 168 (Fla 5th DCA 2006). The current version of the privilege, contained at Section 316.066(4) Florida Statutes, reads as follows:

(4) Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal.

The privilege is limited. First of all, the privilege only applies to a driver, owner, or occupant of a vehicle because these are the only people compelled to make a report under the statutes. Sottilaro v. Figueroa, District Court of Appeal of Florida, Second District (Opinion filed February 8, 2012). In Sottilaro, the young friend of a minor child killed while crossing a highway, was allowed to have his trial testimony impeached from statements he gave to a police officer at the accident scene.

Workers' Compensation Recovery for Southern Bell/Bellsouth/AT&T Line Workers Damaged by Repetitive Trauma

Thu, 26 Apr 2012 12:47:41 -0500

During the past 12 months we have represented a handful of former Southern Bell linemen injured in the course and scope of their employment. Each was hired by Southern Bell (subsequently Bellsouth, now AT&T) in the 1970s to repair and install telecommunication cable. They started working for Southern Bell in their 20s and stayed until being forced by orthopedic conditions to retire in 2010 and later.

Their orthopedic conditions were caused by years of wear and tear from climbing telephone polls while toting heavy equipment and cable. Instead of being allowed to use ladders or hydraulic lifts, the linemen were forced to shimmy the poles like island natives gathering coconuts from tall palm trees. Boot hooks, jammed into the wood poles, kept them from falling.

Our first Southern Bell lineman case involved a 61 year old gentleman who retired after 39 years, done in by bad knees. His orthopedist was recommending total knee replacement surgery.

Common sense and experience told us that his knee problems were job related. Unless there has been acute trauma, like a football injury, repetitive trauma beyond the ordinary is the usual cause for damage of this severity at such a relatively young age. 39 years of pole climbing qualifies as beyond ordinary wear and tear.

Federal Courts Jurisdiction and Venue Clarification Act of 2011

Sun, 22 Apr 2012 13:25:33 -0500

There are numerous procedural, substantive, and even attitudinal differences in the way civil cases are handled between State and Federal Courts. The differences can determine the outcome of a case.

In many instances, the line is sharp over which court system has jurisdiction, leaving little to no choice over which system will get the case. In others, however, legal maneuvering can dictate where a case will land. It is important, therefore, for lawyers to fully understand the factors that determine the outcome.

Given the significance of the outcome, parties to legal proceedings have always tussled over the jurisdiction issue, spawning a plethora of statutes and case law. Ironically, the many statutes and opinions on the subject have to a degree created more confusion than clarity.

Relevance of Prior Similar Accidents in Florida Premises Liability Cases

Tue, 17 Apr 2012 13:02:35 -0500

Success for the victim of a premises liability accident requires that he or she prove the defendant knew or should have known beforehand of the existence of the dangerous condition which caused the accident, and that the accident was foreseeable.

One of the most effective ways of establishing these elements is through similar prior accidents.

Most business establishments prepare incident reports following accidents. The reports contain accident details along with the victim's name and contact information.

Once a lawsuit is filed, the Florida Rules of Civil Procedure allow the parties to obtain case relevant information, also known as discovery, from each other and non-parties. Subpoenas, depositions, and document requests are the common methods of obtaining information.

Typically, the prior incident reports themselves are not discoverable based on the privilege doctrine of being prepared in anticipation of litigation. However, defendants must provide detailed information about prior accidents, including victim names and contact information, date and location of incidents, and some description of what occurred. Publix Supermarkets, Inc. v. Martin, 739 So.2d 174 (Fla. 2d DCA 1999).

What is the Statute of Limitations (SOL) Under Florida's Wrongful Death Act

Sat, 14 Apr 2012 11:44:14 -0500

Read together, Florida Statute Section 95.11(4)(d) and Section 95.031(1) provide that an action for wrongful death, under Section 768.21 (known as Florida's Wrongful Death Act), must be commenced within two (2) years of when the last element constituting the cause of action occurs. This is a strict standard that does not take into account the "delayed discovery" doctrine.

The "delayed discovery" doctrine tolls the statute of limitations until the plaintiff either knows or should know that the last element of the cause of action occurred. The only type of wrongful death action to which the doctrine applies and thus tolls the statute of limitations is one arising from medical negligence. See Section 95.11(4)(b). No other type of wrongful death claim is so tolled.

For example, in Raie v. Cheminova, Inc., 336 F. 3d 1278 - Court of Appeals, 11th Circuit 2003, a wrongful death claim based on products liability was barred even though the Personal Representative did not learn of the cause of death until four years after the decedent's death.

Although not pertinent to wrongful death claims, the other types of actions to which the doctrine applies are:

Claims of fraud.

Products liability claims that result in injury but not death.

Professional malpractice (95.11(4)(a))

Intentional torts based on abuse (95.11(7)).

See Davis v. Monahan, 832 So.2d 708 (Fla., 2002).

Conversation With Famed Products Liability Forensic Expert

Thu, 12 Apr 2012 18:49:03 -0500

Famed products liability expert and author (Foreseeable Risk) Tom Taormina was interviewed on April 12, 2012 on WLRN public radio by Topical Currents host Joseph Cooper. The conversation centered on the dangers of everyday household electrical appliances such as toasters and microwaves, but his account of an artificial lighted Christmas tree that caused the death of four people is eye opening.

The 15 minute interview (listen here) will be enlightening to people who question the importance of having a vigorous civil justice system to punish manufacturers who produce dangerous products. According to Mr. Taormina, some manufacturers allow a dangerously high failure rate and the resulting lawsuits as the cost of doing business, rather than make their products safer at a greater cost.

Florida DUI Crash Victims Exempt from PIP & Health Insurance Deductible and Co-Pay

Tue, 10 Apr 2012 18:36:35 -0500

PIP (Personal Injury Protection) and health insurance will cover most motor vehicle-related medical expenses. However, these insurance policies are subject to deductibles and copays, leaving insureds with out-of-pocket medical expenses even under the best circumstances. An exception applies when the insured is a victim of a DUI crash.

The exception is contained in Florida Statute Section 624.128:

Crime victims exemption.--Any other provision of the Florida Statutes to the contrary notwithstanding, the deductible or copayment provision of any insurance policy shall not be applicable to a person determined eligible pursuant to the Florida Crimes Compensation Act, excluding s. 960.28.

The DUI crash victim must apply for crime compensation with and be found eligible by the Office of the Attorney General, Division of Victim Services. (Here is a link to the Victim Compensation Claim Form.) A victim found eligible will be notified by the Office of the Attorney General. The victim should then present the notice of eligibility to the appropriate insurance companies to obtain the waiver.

Attorney Fees in Florida PIP Cases

Sun, 08 Apr 2012 09:23:35 -0500

In March, I blogged about Florida's new PIP law that had been approved by the Florida Legislature on March 9, 2012. (New Florida PIP Law (Effective 1/1/13) Hammers Consumers.) I believe that many aspects of the law are anti-consumer, however, I limited my blog conversation to an issue concerning medical benefits.

Another aspect of which I disapprove concerns the award of attorney fees to insureds' attorneys when carriers wrongly deny benefits, in other words, breach the insurance contract. The new law sharply limits the fees.

One of the most powerful tools insureds have to force carriers to honor contracts is the threat of having to pay sizable attorney's fees. Accordingly, limiting the fees reduces the leverage consumers have against their insurance companies. This is an important subject.

From time to time, I will reproduce in my blog letters and articles written by other people. I am reproducing here a letter on the subject of fees written by my good friend and superb South Florida lawyer Cris Evan Boyar. The letter was published in the April 1, 2012 issue of The Florida Bar News:

Don't Cap Fees
For 100 years our Legislature recognized that unless something was done to level the playing field between the insurer and their policyholders, the insurers could deny claim after claim with impunity. Recognizing the unfairness of the system that forces Floridians to buy PIP coverage and the financial disparity between the insurer and its policyholders, the Legislature enacted a law that sanctions the insurer by forcing the insurer to pay their policyholders' attorneys' fees if the policyholder prevails. These legal fees are paid only if there is a determination the insurance company wrongfully denied the claim.

New Twist in Florida's Workers' Compensation Immunity Law

Sat, 07 Apr 2012 12:38:05 -0500

Some 80 years ago in Florida, workers' compensation was substituted for the personal injury system as the nearly exclusive remedy for employees seeking compensation from employers for workplace accidents. The idea was that workers should not have to establish fault, a basic element of every personal injury case, in order to be compensated. In exchange for this valuable concession, employers were relieved from having to pay non-economic damages, broadly referred to as pain and suffering. In its original form, this quid pro quo was fair.

The quid pro quo is fair no longer. Through years of Republican rule - beginning with Governor Jeb Bush, in concert with right-wing dominated legislatures - the once equal quid pro quo balance has given way to a one-sided workers' compensation system strongly favoring employers and their insurance carriers over injured workers.

See these blogs to understand the imbalance:

Florida's Workers' Compensation System's Steady Decline Into the Abyss

The Steady Erosion of Florida Workers' Compensation Rights & Benefits

Florida Workers' Compensation Law: Proving Medical Causation

Due to the gross imbalance, accident lawyers must always consider ways to overcome the workers' compensation immunity granted to employers. Unfortunately, the option is rarely available.

The known ways of overcoming the immunity have been:

If an employer fails to have workers' compensation coverage in place. See Florida Statute Section 440.11(a)

An employer commits an intentional tort that causes the injury or death. See Section 440.11(b)

Estoppel. The employer denies that the accident occurred in the course and scope of employment employment. See Byerley v. Citrus Publ'g, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999)

As of March 21, 2012, there may be a fourth way.

The Cost of Florida Medical Records

Thu, 05 Apr 2012 08:08:04 -0500

Obviously, medical records are important for many reasons. They do not come without a price.

Florida Statute Section 456.057 is titled "Ownership and Control of Patient Records; Report or Copies of Records to be Furnished," and it defines the owner of medical records as the health care practitioner who generates a medical record after essentially performing an examination of a patient. The owners sell copies of their records to those who request them.

The cost of copies is controlled by 456.057 and Rule 64B8-10.003 of the Florida Administrative Code. A plain reading of Rule 64B8-10.003 makes it clear that the determinative factor in deciding what the applicable charge for records will be depends on the party for whom the copies are being made.

US Chamber of Commerce Targets Florida Supreme Court Justices

Thu, 29 Mar 2012 19:46:48 -0500

The Huns are at it again.

Not satisfied with controlling the Governor's Office (Tea Party darling Rick Scott) and the Florida Legislature (both chambers have large Republican majorities), the US Chamber of Commerce and its right-wing allies are mounting a campaign to unseat three moderate Florida Supreme Court Justices. If the Justices are unseated and Rick Scott chooses their replacements, any hope that the poor, the injured, the forgotten, the voiceless, the defenseless and the damned have of receiving a fair shake will be vanquished. The three seats of our state government - Executive, Legislative, and the Courts - will be in the hands of the Huns. Shudder the thought!

Every six years, Florida's Supreme Court Justices are subject to a "yes" or "no" merit retention vote by the general electorate. No Supreme Court Justice has ever been voted out of office. However, no Justice has faced what Justices R. Fred Lewis, Barbara J. Pariente, and Peggy A. Quince will be facing in the coming months in the lead up to their merit retention votes in November, 2012.

Florida's Collateral Source Rule & Workers' Compensation Liens

Mon, 26 Mar 2012 20:46:20 -0500

People harmed in accidents by the negligence of others often have available to them other sources, such as private insurance and governmental programs, to provide lost wages and medical benefits while they wait to be compensated by the tortfeasors (at-fault parties) for their losses. Florida Statute 768.76 calls these other sources collateral sources.

768.76(1) permits a tortfeasor an offset in the amount of any collateral source of indemnity and medical benefit unless the source of indemnity has a right of subrogation. In other words, if the recipient of the collateral source benefits does not have to repay the providers, the tortfeasor does not have to pay for them.

The reasoning behind this principle, known as the Collateral Source Rule, is to prevent victims from receiving a windfall.

Transvaginal Mesh Riskier Than Non-Mesh Procedures

Sat, 17 Mar 2012 11:41:11 -0500

With all of the talk in the country about right-wing legislation mandating transvaginal ultrasounds for woman seeking abortions, another transvaginal issue is coming to light as placing woman at risk of injury and death.

In recent years,Johnson & Johnson, C.R. Bard, Caldera and numerous other manufacturers have encouraged doctors to use the placement of surgical mesh through the vagina to treat pelvic organ prolapse (POP) and stress urinary incontinence (SUI). Unfortunately, the mesh, once considered an advancement in medical care, appears to be fraught with problems.

The Fluctuating Workweek, "Chinese Overtime," and the FLSA

Thu, 15 Mar 2012 20:41:46 -0500

"Chinese Overtime" is allowed under the Fair Labor Standards Act (FLSA). See Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 (1942) and 29 C.F.R. Section 778.114 (2010). It only comes into play for employees paid in accordance with the fluctuating workweek method.

Fluctuating workweek pay is a salary as opposed to being paid by the hour. It is a set weekly sum regardless of hours worked, no matter more or less than 40. Overtime pay is available.

The FLSA provides that employees paid on an hourly basis must be compensated at the rate of one and one-half their regular rate of pay for each hour over 40 worked in a week. For example, an employee paid $10/hr, which is the "regular rate of pay," must be paid $15 for each overtime hour.

In contrast, employees paid by the fluctuating workweek method receive only 1/2 their regular rate of pay for overtime hours.

New Florida PIP Law (Effective 1/1/13) Hammers Consumers

Mon, 12 Mar 2012 10:16:39 -0500

For those who think that all politicians are alike, that it doesn't matter who is elected, think again. One need only look at what happened in the Florida legislature on Friday, March 9, 2012, to debunk the notion.

Tea-party darling Florida Governor Rick Scott and his right-wing Republican cohorts rammed through an anti-consumer, pro-insurance industry motor vehicle insurance law to rival any in the nation. It is so anti-consumer that even 8 Republican senators voted against it. Unfortunately, the bill passed in the Florida Senate by one vote.

The new law, effective January 1, 2013, deals with PIP (Personal Injury Protection) insurance. (Here's a link to the law, House Bill 119.)

PIP is a form of insurance that covers medical and lost wages arising out of motor vehicle accidents. The current PIP law covers a total of $10,000 in medical expenses and lost wages subject to a deductible, if any, chosen by the policy holder. Whether and how much is paid in medical expenses is based on the reasonableness and necessity of the medical care.

The new law adds more hurdles to obtaining the full $10,000 in medical coverage.

If an insured fails to seek medical treatment within 14 days of the accident, PIP will not pay any medical expenses. None. It is not unusual for injuries to manifest themselves worthy of medical care more than 14 days after an accident. It is also not unusual for people with real injuries but busy schedules to need more than 14 days to obtain medical care. Factor in the difficulty of obtaining an appointment with a doctor and we anticipate that this provision will eliminate coverage for many policy holders.

Unless the medical treatment is for an "Emergency Medical Condition," PIP payments will be limited to $2,500. (EMC is defined in the new legislation as: (a) Serious jeopardy to patient health; (b) Serious impairment to bodily function; (c) Serious dysfunction of any bodily organ or part.) This provision will likely spawn significant litigation from medical providers, especially for hospital emergency room services. Nonetheless, it is clearly a high standard that will reduce PIP payments in most cases.

Undoubtedly, the overall impact of the legislation will be to reduce PIP medical payments. Ironically, the legislation does not impose a mandatory reduction in insurance premiums.

Profits over people. And the beat goes on....