Interestingly, these caps do not apply to claims brought under the FTCA. The first paragraph of 28 U.S.C. § 2674 makes this explicit, stating:

“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual [emphasis added] under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”

Simply put, although FTCA claims are brought against the federal government and its entities — just as claims under Florida’s Section 768.28 are brought against the state and its subdivisions — for purposes of damages, FTCA claims are treated as if they were brought against an individual rather than a government entity under 768.28.

Currently, under Florida law, individuals are not entitled to the misguided constraints of arbitrary damage caps.

Unfortunately, because Florida’s substantive law governs FTCA claims arising in the state, the FTCA does not protect all claims from the reach of every flawed or restrictive Florida law. For example, the Florida Wrongful Death Act (Fla. Stat. §§ 768.16–768.26) restricts recovery for certain survivors in medical malpractice cases, and those limitations still apply even to claims brought under the FTCA. Thus, the wrongful death of a patient resulting from medical malpractice at a VA hospital is governed by the same restrictive Florida law that applies to any other medical malpractice wrongful death case.

Florida’s sovereign immunity cap — essentially a modern echo of the old maxim that ‘the king can do no wrong’ –makes pursuing most tort claims against the state and its subdivisions virtually untenable. Very few lawyers are willing to invest the time and resources to challenge the sovereign for limited damages, knowing the state can fight with impunity, indifferent to the outcome, and effectively discourage even the thought of pursuing otherwise meritorious claims.

Thankfully, Congress chose not to shield the federal government with the same outdated liability protections that the Florida Legislature grants to state entities.*

*For administrative settlements, attorney fees are capped at 20%, while for cases that proceed to a federal court lawsuit and result in a settlement or judgment, the cap increases to 25%.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

In every negligence action for personal injury or wrongful death, the plaintiff must establish three core elements: (1) a duty owed by the defendant; (2) a breach of that duty; and (3) that the breach proximately caused the claimed damages.

While duty and breach often dominate attention, proximate cause is the element that connects wrongdoing to legal responsibility. Without proximate cause, even clear negligence is not actionable.

Florida courts apply the “more likely than not” standard to determine causation. The plaintiff must prove that the defendant’s negligence probably caused the injury—not merely that it possibly did. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977). As Prosser succinctly put it:

“A mere possibility of causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”

The Gooding Benchmark

The North Star of Florida’s proximate cause law remains Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla. 1984).

Emily Gooding, representing her late husband’s estate, alleged emergency room negligence in failing to timely diagnose and treat his abdominal aneurysm. Although her expert established a breach of medical standards, he failed to testify that immediate treatment would have more likely than not saved Mr. Gooding’s life. The Florida Supreme Court affirmed a reversal of the plaintiff’s jury verdict, holding that causation evidence must satisfy the “more likely than not” standard, not rest on a mere possibility of survival.

Directed Verdicts and Proximate Cause

The Gooding principle shapes when courts must take causation questions away from the jury. A directed verdict is appropriate “where no proper view of the evidence could sustain a verdict in favor of the non-moving party.” See Friedrich v. Fetterman & Assocs., 137 So.3d 362 (Fla. 2013).

A recent example is R.J. Reynolds Tobacco Co. v. Nelson, 47 Fla. L. Weekly D2436 (Fla. 1st DCA 2022). There, Reynolds was sued for design defect negligence causing COPD. The appellate court reversed the plaintiff’s verdict, finding no competent evidence that Reynolds’ conduct proximately caused the plaintiff’s disease. Once again, the absence of substantial causation evidence mandated a directed verdict.

But Sometimes, Proximate Cause Is a Jury Question

Not all proximate cause cases end in favor of the defendant. In Aragon v. Issa, M.D., 103 So.3d 887 (Fla. 4th DCA 2012), the appellate court reversed a trial judge’s post-verdict ruling for the defense. Because the plaintiff presented conflicting expert testimony supporting causation, the case should have been left to the jury.

Similarly, in Claire’s Boutiques v. Locastro, 85 So.3d 192 (Fla. 4th DCA 2012), the court upheld the denial of a directed verdict on causation. Although the defendant claimed there was insufficient proof that their negligence caused an infection, the court emphasized that if “sufficient evidence” supports the “more likely than not” standard, the issue must go to the trier of fact.

Primary Cause ≠ Proximate Cause

One of the most important clarifications in Florida law is that proximate cause does not require an act to be the “primary” cause of an injury. In Ruiz v. Tenet Hialeah Healthsystem, Inc., 260 So.3d 977 (Fla. 2018), the Florida Supreme Court reversed a directed verdict in a medical malpractice case.

The defendant doctor argued he merely “placed” the patient in a position to be harmed by the independent actions of others. The Court disagreed, reaffirming that:

““the law does not require an act to be the exclusive or even the primary cause of an injury in order for that act to be considered the proximate cause of the injury: rather, it need only be a substantial cause of the injury.”

This principle was famously applied in Sardell v. Malanio, 202 So.2d 746 (Fla. 1967), where a boy who threw a football was held potentially liable for injuries caused when another boy collided with a passerby while catching the ball. Proximate cause, the Court explained, hinges on whether an act substantially contributed to the injury, not whether it was direct or dominant.

Proximate Cause in Workers’ Compensation

Though often associated with tort law, proximate cause is equally fundamental in Florida workers’ compensation cases. Claimants must prove a causal link between an industrial accident and their injury with competent substantial evidence. See § 440.02(1), Fla. Stat.; Gator Industries, Inc. v. Neus, 585 So.2d 1174 (Fla. 1st DCA 1991).

In Escambia County Board of County Commissioners v. Reeder, 648 So.2d 222 (Fla. 1994), the claimant’s compensation was not reduced despite his failure to wear a safety belt on a bulldozer. The court held that the employer had to prove a causal connection between the refusal to wear safety equipment and the injury. Because that proof was lacking, the 25% statutory penalty pursuant to § 440.09(5) could not be applied.

Conclusion: Fundamentals Always Matter

Like a receiver taking his eyes off the ball or a tennis player forgetting footwork, lawyers sometimes lose sight of foundational principles. Proximate cause is a legal fundamental. It bridges the gap between wrongful conduct and compensable harm. Whether in personal injury, medical malpractice, or workers’ compensation, failing to establish proximate cause is fatal to a claim. Conversely, remembering and proving it can be the difference between victory and defeat.

In litigation, fundamentals always matter.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

However, not all hazardous conditions trigger a duty to warn. Courts have repeatedly found that certain commonplace conditions—such as uneven floor levels and sidewalk curbs—are open and obvious, and therefore do not qualify as concealed dangers. For example:

• In Bowles v. Elkes Pontiac Co., 63 So. 2d 769, 772 (Fla. 1952), the Florida Supreme Court held that uneven floor levels in public areas are not latent or hidden hazards.
• In Gorin v. City of St. Augustine, 595 So. 2d 1062 (Fla. 5th DCA 1992), a curb used for tram boarding was deemed not to be a hidden danger.
• Similarly, in Aventura Mall Venture v. Olson, 561 So. 2d 319 (Fla. 3d DCA 1990), a six-inch sidewalk curb at a mall was not considered a latent or concealed risk.

These cases reflect the application of the “obvious danger doctrine”—a legal principle that allows landowners to assume that an invitee will perceive obvious risks through ordinary use of their senses. Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207, 1208 (Fla. 5th DCA 1990).

The Limitations of the “Open and Obvious” Defense

Critically, the fact that a condition is open and obvious does not automatically relieve a landowner of liability. Florida courts recognize a concurrent duty to maintain premises in a reasonably safe condition. As stated in De Cruz-Haymer v. Festival Food Mkt., Inc., 117 So. 3d 885, 888 (Fla. 4th DCA 2013), “the landowner’s duty to maintain the premises in a reasonably safe condition is not discharged merely because the danger is open and obvious.”

There are two relevant legal categories here:

1. Conditions that are so obvious and not inherently dangerous that no duty arises because a reasonably prudent person would avoid them without warning. See Schoen v. Gilbert, 436 So. 2d 75 (Fla. 1983) (holding that a difference in floor levels, even in dim lighting, was not inherently dangerous).
2. Conditions that are dangerous yet obvious, where the landowner may still escape liability—unless the landowner should reasonably foresee that invitees might still encounter the hazard and be harmed. See Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309, 1311 (Fla. 1986); Etheredge v. Walt Disney World Co., 999 So. 2d 669, 672 (Fla. 5th DCA 2008); Aguiar v. Walt Disney World Hospitality, 920 So. 2d 1233, 1234 (Fla. 5th DCA 2006).

Case Example: Cracked Sidewalk

The case of Middleton v. Don Asher & Associates, 262 So. 3d 870 (Fla. 5th DCA 2019), illustrates this principle well. There, the plaintiff tripped over an uneven sidewalk joint at a condominium. Although the trial court granted summary judgment on the basis that the condition was open and obvious, the appellate court reversed, holding that a factual issue remained as to whether the property owner should have anticipated that residents would still use the sidewalk and potentially be harmed—despite the obviousness of the defect.

A Recent Case from Our Office

We were recently retained to represent a woman who tripped in a pothole on a condominium sidewalk, falling face-first onto the pavement and suffering significant dental injuries. The fall occurred after sunset in a poorly lit area, and she was unfamiliar with the premises. While the pothole may have been visible during daylight, it was not readily observable at night. Even assuming the condition was open and obvious, the property owner could have reasonably foreseen that a resident or guest might not see the hazard in low lighting and suffer injury.

The Takeaway

Premises liability cases are highly fact-specific. Courts consider numerous factors: visibility, lighting conditions, foreseeability, prior incidents, and whether reasonable steps were taken to make the area safe. The presence of an “open and obvious” condition is not necessarily a complete defense—it merely shifts the focus to whether the property owner should have reasonably anticipated harm.

If you or someone you know has been injured on someone else’s property, it is essential to act quickly to preserve evidence, document the scene, and understand your legal rights. A prompt and thorough investigation can often make the difference between a viable claim and a lost opportunity.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Sovereign immunity, however, undercuts this principle. Rooted in the old-world doctrine that “the king can do no wrong” (Latin: Rex non potest peccare), sovereign immunity was designed to shield monarchs from legal consequences. Today, this concept survives in modern constitutional monarchies like the United Kingdom, Japan, and the Netherlands. Unfortunately, it has also made its way into American law—particularly in states like Florida.

Florida’s Version of Sovereign Immunity

Florida has adopted a modified form of sovereign immunity for civil cases, including personal injury and wrongful death claims. Under Florida Statute § 768.28(5)(a), the state and its agencies are shielded from full liability. Compensation for damages caused by a government entity is capped at $200,000 per individual and $300,000 per incident, regardless of how catastrophic the harm may be.

So, whether someone suffers minor injuries or a family loses a loved one due to government negligence, the total financial exposure for the state remains the same. This cap applies even if a jury awards millions in damages based on compelling evidence and clear fault.

Why the Cap Undermines Public Policy

Florida’s sovereign immunity cap actively defeats the public policy it claims to serve. Instead of promoting safety and accountability, it does the opposite—discouraging justice and denying fair compensation.

1. Discourages Responsible Conduct

When the worst financial consequence a government agency faces is $300,000—no matter the harm—there’s little incentive to improve safety protocols, correct systemic failures, or admit fault. This undermines the civil justice system’s role in deterring negligence.

2. Discourages Legal Representation

Most personal injury and wrongful death attorneys won’t take sovereign immunity cases unless there’s a non-sovereign party also responsible. Why? Because:

• The potential recovery is severely limited.
• Government defendants often fight the hardest, spending taxpayer money to drag out litigation.
• Even a large jury verdict changes nothing—the cap still applies.

3. Undermines Judicial Economy

Another core principle of civil law is judicial economy—resolving disputes efficiently and avoiding unnecessary litigation. Sovereign immunity caps frustrate this goal. In typical cases, the threat of a high jury verdict encourages settlements. But in cap cases, sovereign defendants often refuse to settle—even in clear-cut cases—because they know they’ll never owe more than the cap, no matter what happens in court.

4. Renders Florida’s Settlement Encouragement Law Toothless

Florida Statute § 768.79 allows plaintiffs to recover attorney’s fees and costs if they obtain a judgment 25% greater than a properly served settlement offer. This statute is highly effective at encouraging reasonable settlements in non-cap cases. But in cap cases, it’s practically meaningless.

For example, even if a jury awards $2 million and the plaintiff is entitled to $350,000 in attorney’s fees under § 768.79, the sovereign still only pays the cap amount. The incentive to settle is lost.

A Notable Exception: Workers’ Compensation

Interestingly, the sovereign immunity cap does not apply in workers’ compensation claims. Government employers can be held accountable for the full value of benefits under Florida’s workers’ comp system. That said, these benefits do not include compensation for pain and suffering—often the largest and most meaningful component of a personal injury or wrongful death claim. Still, sovereign exposure in workers’ comp cases can easily exceed the cap, especially in cases involving long-term disability or death.

It’s Time to Retire the Cap

The sovereign immunity cap is outdated. If it ever served a valid purpose, that time has long passed. In modern America, where governments operate complex institutions like hospitals, schools, and transportation systems, they must be held to the same standard of accountability as private actors. The current law creates two tiers of justice—one for victims harmed by private entities, and a lesser one for those harmed by the government.

A Final Word

If you or a loved one has been harmed due to the negligence of a government entity, speak with a qualified attorney to understand your rights. While sovereign immunity presents serious legal hurdles, it doesn’t mean you’re entirely without options.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This  information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Currently, we are handling a case for an Uber driver who was hurt through the negligence of another driver. Our client’s passenger was also hurt.

Florida motor vehicle insurance policies offer a variety of coverages. For individuals, only Property Damage Liability and PIP are mandatory. The other available coverages are Uninsured Motorist/Underinsured Motorist (UM/UIM), Comprehensive, Collision, and Medical Payments. A premium is charged for each type of coverage.

Uber maintains insurance coverage in Florida with Progressive. We received a copy of the policy applicable to our accident. The available coverages are:

• Liability to Others – Bodily Injury and Property Damage Liability – $1,000,000 combined single limit
• Comprehensive – $2,500
• Collision – $2,500
• Medical Payments – $5,000 each person

Uber rejected UM/UIM. PIP was not an option.

Uninsured Motorist insurance is coverage for when the at-fault party does not maintain Bodily Injury Liability insurance coverage. Underinsured Motorist applies when the Bodily Injury Liability coverage limits are insufficient to fully compensate for all damages.

Florida Statute 627.748(7) outlines the insurance requirements for transportation companies like Uber and Lyft — referred to in the statute as “Transportation Network Companies” and “TNC” — and their drivers. The statute provides that “Uninsured and underinsured vehicle coverage as required by s. 627.727” must be maintained while a participating TNC driver is logged on to the digital network but is not engaged in a prearranged ride or while a TNC driver is engaged in a prearranged ride. Subsection (7)(d) further provides:

If the TNC driver’s insurance under paragraph (b) or paragraph (c) has lapsed or does not provide the required coverage, the insurance maintained by the TNC must provide the coverage required under this subsection, beginning with the first dollar of a claim, and have the duty to defend such claim.

The statutory language gives the appearance that UM/UIM would always be available, when applicable, through the TNC or its driver. Appearances can be deceiving! In Progressive Express Insurance Company v. Raiser-DC, LLC, 724 F.Supp. 1273 (USDC, S.D. Florida 2024), summary judgment was entered in favor of Progressive’s position that UM and UIM coverage did not exist under the TNC’s insurance policy. This left its driver [Karina Monasterio], who was seriously injured by the negligence of another driver, who was underinsured at the time of the accident, without UIM insurance. Here are key parts of the ruling:

In pertinent part, the Florida UM/UIM statute requires that:

(1) No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein … However, the coverage required under this section is not applicable when, or to the extent mat, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy.”

Fla Stat. 627.727(1) (emphasis added). Florida courts have already interpreted that Subsection (1) of the Florida UM/UIM Statute “limits the applicability of the uninsured motorist requirements to liability policies covering specifically insured or identified motor vehicles.” Hooper v. Zurich Ins. Co., 789 So. 2d 368, 369 (Fla. Dist. Ct. App. 2001).

The Parties state, and Ms. Monasterio readily concedes, that the Period Policy “is not issued for specifically insured or identified vehicles.” The Period Policy does not identify any specific vehicle nor is Ms. Monasterio’s vehicle specifically identified. As Subsection (1) is therefore not applicable to the Period Policy, Ms. Monasterio cannot point to any text in the Florida UM/UIM Statute that would require coverage for her vehicle during the May 6, 2022, incident. Her argument that Subsection (1) of the Florida UM/UIM Statute is the only subsection to limit its applicability to specifically insured or identified motor vehicles, does undermine the limitation nor in and of itself create language that mandates UM/UIM insurance for all other types of insurance policies.

However, Ms. Monasterio urges this Court to recognize the result that follows. Subsection (1) of the Florida UM/UIM Statute only requires UM/UIM coverage for “specifically insured or identified vehicles.” The Period Policy was written to cover “any auto while being used by a TNC driver, but only while engaged in providing a prearranged service utilizing the ride-share application …” It is likely that most TNC policies will be written similarly and it would be virtually impossible for any TNC to possibly identify each vehicle in the written policy. Therefore, it is further likely that no TNC driver or vehicle would ever be specifically insured or identified by the TNC’s insurance policy, and as a result, never meet the condition precedent for Subsection (1) of the Florida UM/UIM Statute. By referencing, the Florida UM/UIM Statute, the TNC Act makes the requirement for UM/UIM coverage meaningless for TNC insurance policies.

The court acknowledged “that this interpretation might be counter to the Florida Legislature’s intent when they drafted the TNC Act.” However, it relied on basic statutory interpretaton to reach the final result:

Notwithstanding the legislative intent however, my inquiry must focus on the language of the statute in its final form, and the statute references the Florida UM/UIM Statute in its entirety. The TNC Act only mandates UM/UIM insurance as required by the Florida UM/UIM Statute and Subsection (1) of the UM/UIM only requires that policies that specifically insure vehicles provide such coverage. I believe this is the result that the final text of the TNC Act requires. Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009) (“When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.”).

In our case, because Uber’s driver, our client, did not cause the crash, the Bodily Injury Liability coverage in Uber’s Progressive policy does not come into play for our client or his passenger. The only injury-related coverage in Uber’s policy for our crash is the Medical Payments coverage. This coverage does not compensate for non-economic damages such as pain and suffering. Thankfully, the at-fault driver maintained enough bodily injury liability insurance to compensate for our client’s non-economic damages. Had our client’s injuries been more serious, that would not be the case. We do not know the full extent of the passenger’s injuries or what other insurance coverage he may have to know whether he will be fully compensated.

Bottom line: to protect against uninsured and underinsured situations, TNC drivers must maintain their own UM and UIM insurance. The TNC will not provide the coverage for them. The same goes for passengers. If the driver has UM/UIM and the passenger does not have other insurance considered primary for the same measure of damages, the driver’s UM/UIM should provide coverage.

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Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

The formula’s interpretation has been challenged. Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990) put much of the uncertainty to rest. Manfredo explained that the percentage of the employer/carrier’s recovery is determined as follows:

Step 1. Establish the “full value” of the liability case.

Step 2. Reduce the actual recovery by attorney’s fees and costs to reach a net recovery.

Step 3. Divide the net recovery by the full value.

Step 4. The result in Step 3 is the percentage of the subrogation lien the employer/carrier is allowed to recover.

Let’s say the employer/carrier’s subrogation lien totals $100,000, and the net recovery divided by the full value is 20%, the employer/carrier’s recovery is $20,000.

Determining full value is an evidentiary matter. Experts, usually seasoned personal injury lawyers, give their opinions based on the facts of the particular case and their experience. The judge decides what evidence to accept.

Florida is a comparative fault state. See Florida Statute 768.81. This means that a tortfeasor only pays for damages in proportion to his or her percentage of fault. For example, if damages are $1,000,000, but the tortfeasor is only 60% at fault for causing the accident which has resulted in the damages, the at-fault party’s share is limited to $600,000.

Interestingly, comparative fault cannot be argued to reduce full value. See City of Hollywood v. Lombardi, 770 So. 2d 1196 (Fla. 2000) and Luscomb v Liberty Mut. Ins. Co., 967 So. 2d 379 (Fla. 3rd DCA 2007).

Another common factor preventing full recoveries is limited insurance coverage. Very few individuals maintain large bodily injury and uninsured/underinsured motorist insurance policy limits — I consider $1 million and above to be large. Damages usually exceed coverage limits.

While the cases cited in the section above discussing comparative fault do not explicitly say that limited coverage can be argued to reduce the full value assessment, it is my opinion that it cannot. There is nothing in the statute or the cases interpreting the statute saying it can. The language of the statute suggests that it cannot. Section 440.39(3)(a) contains the following language:

“[T]he employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, except, if the employee or dependent can demonstrate to the court that he or she did not recover the full value of damages sustained, the employer or carrier shall recover from the judgment or settlement, after costs and attorney’s fees incurred by the employee or dependent in that suit have been deducted, a percentage of what it has paid and future benefits to be paid equal to the percentage that the employee’s net recovery is of the full value of the employee’s damages.”

Moreover, the Lombardi case involved a compromised policy limits settlement of $100,000 in which the trial court calculated full value at $250,000. The insurance company did not argue that full value should be limited to the $100,000 settlement.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Case law supports the bringing of a lawsuit against the police department. Unfortunately, sovereign immunity makes it a case that few, if any, lawyers are willing to undertake. We were not the first lawyers the mother called. The others turned her down. So did we. The reason why is because the risks and costs associated with litigating the case far outweigh the potential recovery of $200,000. Regardless of a case’s merit, because of sovereign immunity and the relatively minor consequence of a loss, government entities tend to fight every claim hard to discourage otherwise legitimate efforts.

A case against the police department could be brought under the so-called common law “undertaker’s doctrine:”

[i]n every situation where a man undertakes to act, or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another, just as if he had bound himself by an obligatory promise to exercise the required degree of care…. [E]ven “where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case.“

Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896 (1932) (citations omitted) (emphasis supplied) (citing 1 Thomas A. Street, Foundations of Legal Liability 92 (1906)) (quoting Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503, 506 (1906)). In Union Park Memorial Chapel v. Hutt, 670 So.2d 64 (Fla.1996), the Florida Supreme Court reasoned:

It is clearly established that one who undertakes to act, even when under no obligation to do so, thereby becomes obligated to act with reasonable care. See Slemp v. City of North Miami, 545 So.2d 256 (Fla.1989) (holding that even if city had no general duty to protect property owners from flooding due to natural causes, once city has undertaken to provide such protection, it assumes the responsibility to do so with reasonable care); Banfield v. Addington, 104 Fla. 661, 667, 140 So. 893, 896 (1932) (holding that one who undertakes to act is under an implied legal duty to act with reasonable care to ensure that the person or property of others will not be injured as a result of the undertaking); Kowkabany v. Home Depot, Inc., 606 So.2d 716, 721 (Fla. 1st DCA 1992) (holding that by undertaking to safely load landscaping timbers into vehicle, defendant owed duty of reasonable care to bicyclist who was struck by timbers protruding from vehicle window); Garrison Retirement Home v. Hancock, 484 So.2d 1257, 1262 (Fla. 4th DCA 1985) (holding that retirement home that assumed and undertook care and supervision of retirement home resident owed duty to third party to exercise reasonable care in supervision of resident’s activities). As this Court recognized over sixty years ago in Banfield v. Addington, “[i]n every situation where a man undertakes to act, … he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured.” 104 Fla. at 667, 140 So. at 896….

Voluntarily undertaking to do an act that if not accomplished with due care might increase the risk of harm to others or might result in harm to others due to their reliance upon the undertaking confers a duty of reasonable care, because it thereby “creates a foreseeable zone of risk.” McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992); Kowkabany, 606 So.2d at 720-21….

Id. at 66-67 (emphasis supplied) (quoting Restatement (Second) of Torts § 324A (1965) in omitted portion).

The “undertaker’s doctrine” applies to both governmental and nongovernmental entities. Clay Elec. v Johnson, 873 So.2d 1182, 1186 (Fla., 2003).

It is undisputed that the police department affirmatively and specifically undertook to check on the 47-year old woman. Friends and family reasonably relied on law enforcement to do so responsibly. If the case proceeded to trial, challenging questions regarding the reasonableness of law enforcement’s efforts and whether it would have made a difference will be asked among others.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

In some instances, the employer’s own negligence is part of the causal chain resulting in the harm. For example, a few years ago our client was severely beaten in his home by a furniture deliveryman who became annoyed by the strong smell of fish being cooked in the home. We learned that the deliveryman had a criminal record of violent activity before he was hired and a history of physical misconduct while employed. He should not have been hired or retained for a job putting him in one-on-one unsupervised contact with customers.

Negligent hiring and employment have long been found to be legitimate bases of recovery in Florida. See, e.g., Mallory v. O’Neil, 69 So.2d 313 (Fla. 1954); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970).

Similarly, certain employees should not be entrusted with operating motor vehicles. The reasons range from being a known reckless driver to mental impairment from a medical condition or alcohol or drug use. The theory of negligent entrustment has long been utilized in an automobile situation as the basis of recovery. See, e.g., Bould v. Touchette, 349 So.2d 1181 (Fla. 1977); Wright Fruit Co. v. Morrison, 309 So.2d 54 (Fla.2d DCA 1975).

Cases are supposed to be decided on relevant evidence. Relevant evidence is defined in section 90.401, Florida Statutes as “evidence tending to prove or disprove a material fact.” Counterbalancing this rule is 90.403, which sometimes operates to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

90.403 played a role in Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2nd DCA 1977). Clooney sustained crippling injuries in a motor vehicle accident caused, in part, by an employee of Anderson Manufacturing Co. He sued Anderson for negligence in hiring and continuing to employ that driver in light of his incompetence and past driving record and for negligently entrusting its truck to him. The trial court struck these Counts of the complaint. The Second District Court affirmed based on the following reasoning:

Under these theories the past driving record of the driver will of necessity be before the jury, so the culpability of the entrusting party can be determined. As was said in Dade County v. Carucci, 349 So.2d 734, 735 (Fla.3d DCA 1977), “Ordinarily, the evidence of a defendant’s past driving record should not be made a part of the jury’s considerations.”

Here Counts II through V impose no additional liability on Anderson Mfg. Anderson has not denied ownership or permitted use of the truck driven by Geeting; therefore, it is liable for Geeting’s negligence under the vicarious liability doctrine. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Since the stricken counts impose no additional liability but merely allege a concurrent theory of recovery, the desirability of allowing these theories is outweighed by the prejudice to the defendants. See Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303 (1954).

Clooney dealt with the admissibility of a defendant’s past driving record. However, the principle can apply to other respondeat superior situations involving different types of background evidence. In our physical assault case, our investigation uncovered prior criminal convictions and similar complaints by other customers. Relying on Clooney, the employer defendant opposed our counts alleging negligent hiring and retention. The case settled before the matter came to a head with formal pleadings.

Interestingly, had the case not settled we may have used other parts of the Clooney decision to support our position. Clooney alleged in Count V of his Complaint that Anderson Mfg. Co’s behavior showed a wilful and wanton disregard for the rights of Clooney. He did this in an effort to recover punitive damages. The trial court dismissed this Count, feeling that the facts did not rise to the level of wilful and wanton disregard. The appellate court affirmed. However, the Second DCA did say this:

We recognize that factual situations could arise where one of the referred-to theories would impose additional liability. If the allegations in this case had been sufficient to allow the claim for punitive damages to go before the jury, this would be such a case. Another example might be where an owner or authorized custodian of a motor vehicle who knows that the vehicle has defective brakes allows one who is not aware of this dangerous condition to use it, and because of the bad brakes an accident occurs. If the driver were found not to be negligent, the owner could not be held vicariously liable. So the means of imposing liability on the owner would be through his own negligence of lending the car with bad brakes, i.e., negligent entrustment. See generally Wright Fruit Co. v. Morrison,309 So.2d 54 (Fla.2d DCA 1975).

Upon remand of this case for a new trial we realize that Clooney may be able to amend his complaint to allege sufficient ultimate facts to form the basis of a claim for punitive damages. If this occurs, additional theories of recovery may be pleaded; however, we repeat our cautionary note. No theory which permits the past driving record of Geeting should be presented to the jury unless there is a proper claim for punitive damages.

Jones v. Vasilias, District Court of Appeal of Florida, Fourth DCA (2023), adds an interesting twist to Clooney. The underlying action arose from a crash suffered by appellant Jones while riding his bicycle along the busy street in front of an automobile dealership as an employee was leaving in a dealership van for a delivery.

In addition to a claim of negligent driving against the driver and the dealership, the operative complaint asserted causes of action against the supervisors for negligent training, retention, supervision, and entrustment. As to the service manager, the complaint also alleged negligent hiring. As to North American, the complaint asserted vicarious liability for the acts of its employee, the general manager.

Citing Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977), the supervisors and North American each moved to dismiss the respective claims against them for failure to state a cause of action. The trial court granted the motion to dismiss.

In reversing and remanding for further proceedings, the Second DCA declared that the trial court’s reliance on Clooney was misplaced. It noted that the negligent employment claims in Clooney were brought against the employer, and not individually against a supervisor. It provided the following analysis:

“It is well-settled . . . that individual officers and agents of a corporation may be held personally liable for their tortious acts, even if such acts were committed within the scope of their employment or as corporate officers.” First Fin. USA, Inc. v. Steinger, 760 So. 2d 996, 997-98 (Fla. 4th DCA 2000) (emphasis added); see also Greenberg v. Post, 19 So. 2d 714, 717 (Fla. 1944) (“It is well settled that an employee may be held personally liable at the suit of a third person for positive negligent acts committed by him even though his employer may likewise be liable for the servant’s negligent conduct when exercised within the scope of the employment.”). Additionally, Florida courts have emphasized that the officer cannot be personally liable “for [his] torts merely by reason of his official character[,]” but he is liable for torts where he “commits or participates in the commission of a tort.” Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363, 1364 (Fla. 4th DCA 1981) (citation omitted); see also Costa Invs., LLC v. Liberty Grande, LLC, 353 So. 3d 627, 633-34 (Fla. 4th DCA 2022); McElveen v. Peeler, 544 So. 2d 270, 271 (Fla. 1st DCA 1989). “A contrary rule would enable a director or officer of a corporation to perpetrate flagrant injuries and escape liability behind the shield of his representative character.” Orlovsky, 405 So. 2d at 1364 (citation omitted). “A corporate officer or agent must be alleged to have acted tortiously in his individual capacity in order to be individually liable.” White-Wilson Med. Ctr. v. Dayta Consultants, Inc., 486 So. 2d 659, 661 (Fla. 1st DCA 1986).

As a proviso, the DCA concluded with these words:

We again emphasize that our opinion is based on the pleading-stage procedural posture of this case. We also point out that our conclusions as to the sufficiency of the pleadings do not determine how the elements of the cause of action will play out as discovery reveals more details of the facts of this case.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Florida’s discovery rules are liberal. FRCP 1.280(b) provides as follows:

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery isas follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Albeit broad, the rules are not boundless. In Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5^th DCA 1997), a wrongful death case, petitioner objected to defendant’s request for decedent’s psychiatric and psychological records, stating that the medical records were confidential and that the request was overbroad. The DCA decided that the records might be relevant to the issue of damages but disagreed with the court’s order allowing “carte blanche investigation of decedent’s entire mental health history.” Russell at 745. The court explained that “Even though the rules of civil procedure allow for broad discovery, the discovery must be confined to matters admissible or reasonably calculated to lead to admissible evidence in the case.” Russell at 745, citing East Colonial Refuse Service, Inc. v. Velocci, 416 So.2d 1276, 1277 (Fla. 5th DCA 1982). The trial court order allowing carte blanche discovery was quashed and the matter was remanded for an in camera review of the records.

A party desiring records from a non-party must follow the procedures outlined in FRCP 1.351(b). The timeline part of the Rule reads as follows:

A party desiring production under this rule shall serve notice as provided in Florida Rule of General Practice and Judicial Administration 2.516 on every other party of the intent to serve a subpoena under this rule at least 10 days before the subpoena is issued if service is by delivery or e-mail and 15 days before the subpoena is issued if the service is by mail.

The reason for the delay in issuing the subpoena is to give the other parties in the case time to object. The procedure for objecting and the consequence of same are set forth in 1.351(b) as follows:

If any party serves an objection to production under this rule within 10 days of service of the notice, the documents or things shall not be produced pending resolution of the objection in accordance with subdivision (d).

Typical grounds for objection are privacy and privilege rights. The right to the privacy of medical records is guaranteed by the Florida Constitution. See State v. Johnson, 814 So. 2d 390 (Fla. 2002) (citing art. I, 23, Fla. Const). While the most well-known privilege is the attorney-client privilege — its parameters are set forth in section 90.502, Florida Statutes — Florida law recognizes numerous other privileges:

90.5015 Journalist’s privilege.

90.5021 Fiduciary lawyer-client privilege.

90.503 Psychotherapist-patient privilege.

90.5035 Sexual assault counselor-victim privilege.

90.5036 Domestic violence advocate-victim privilege.

90.5037 Human trafficking victim advocate-victim privilege.

90.504 Husband-wife privilege.

90.505 Privilege with respect to communications to clergy.

90.5055 Accountant-client privilege.

90.506 Privilege with respect to trade secrets.

None of the rights, privacy or privilege, are absolute. Famously, one of Donald Trump’s lawyers was ordered to testify and hand over records to special counsel Jack Smith‘s team investigating Trump’s handling of classified records after leaving the White House. D.C. district judge Beryl Howell ruled that prosecutors in special counsel Jack Smith’s office had made a “prima facie showing that the former president had committed criminal violations” and that attorney-client privileges invoked by his lawyer could therefore be pierced. An appeals court in Washington, D.C. agreed. In my experience, it is more difficult to pierce privileges than it is to obtain medical records and other non-privileged material such as might be within an unrelated legal claim file. For example, to pierce a privilege more is required than merely showing that the material is admissible or reasonably calculated to lead to admissible evidence. That aside, when a 1.351(b) objection is made, the party seeking the records may proceed pursuant to Rule 1.351(d):

Ruling on Objection. If an objection is made by a party under subdivision (b), the party desiring production may file a motion with the court seeking a ruling on the objection or may proceed pursuant to rule 1.310.

(Rule 1.310 authorizes the taking of depositions. The non-party subpoenas are usually issued to records custodians, meaning it will be a records custodian who will have the records and testify.)

This is where things get murky.

When the notice of intent to subpoena non-party records is served, the party receiving the notice usually does not have the records. When this is the case, it is virtually impossible for the party opposing the production to obtain, review, and prepare particularized objections to the records all within 10 days. Moreover, “there is no provision under Rule 1.351 for a privilege log.” Lyons v. Lyons, 162 So.3d 212, 215 (Fla. App. 2015).

When an objection based on privacy and privilege is made to the production of documents, whether from a party or a non-party, the proper course is for the trial court to conduct an in-camera inspection to determine if the requested documents are discoverable. See Stok v. Turnberry 12G, LLC, 275 So.3d 772 (Fla. 3^rd DCA 2019) (The court quashed an order allowing subpoenas seeking medical records); Lyons v. Lyons, 162 So. 3d 212 (Fla. 4^th DCA 2015); Patrowicz v. Wolff, 110 So. 3d 973, 974 (Fla. 2d DCA 2013) (citing Snyder v. Value Rent-A-Car, 736 So. 2d 780, 782 (Fla. 4th DCA 1999)); and Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5^th DCA 1997). However, since the filing of the 1.351(1) objection prevents issuance of the subpoenas until a ruling is made, the court is also unlikely to have the records before it during the 1.351(d) hearing.

Lyons v. Lyons, 162 So.3d 212 (Fla. App. 2015) fashioned a solution to the quandry:

We recognize that, unlike production from a party, there is no provision under Rule 1.351 for a privilege log, which might reduce the number of documents upon which the privilege is asserted and thus the burden on the trial court. We do not interpret the rule, however, as leaving the court with the obligation of reviewing all documents without a method of isolating those documents upon which a privilege could be claimed. Nor do we conclude that a deposition of the non-party is required, although we also think that the trial court could require the requesting party to resort to a deposition of the non-party with production of documents at the deposition.

The trial court has discretion to fashion a process to deal with the production of the documents, and it did in this case. After the filing of this petition, the trial court considered a motion for protective order from the accountant and entered an order providing a procedure for the accountant to gather the documents sought by the subpoena. Thereafter, petitioners would be entitled to review the documents to segregate those they claimed were privileged. The court would hold an evidentiary hearing on those claimed to be privileged and conduct an in camera review where necessary. This procedure is sufficient to protect privileged documents.

Lyons at 215-216.

In workers’ compensation OJCC Case No. 23-002107, JCC Daniel Lewis entered this thoughtful order in response to the Claimant’s Objections to Subpoenas Duces Tecum/Records Custodian Depositions:

In view of the claimant’s objection, the employer/carrier may schedule the depositions of the records custodians. Russell vs. Stardust Cruisers, Inc., 690 So. 2d 743, 744 (Fla. 5th DCA 1997) (holding that Rule 1.351 is self-executing and an objection requires that a deposition of the records custodian be taken in order to obtain the requested documents). Since the claimant is objecting to the employer/carrier’s Subpoenas/Notices of Production from Nonparties, claimant’s counsel can attend the depositions, review the records before they are produced to the employer/carrier, and raise objections if the claimant believes the records contain information that is protected or not within the scope of permissible discovery. Any records to which an objection is interposed shall then be sealed by the court reporter and submitted to me for in camera inspection or review, along with the deposition transcript which indicates the record, or portion thereof, to which the claimant is objecting as well as the basis for the objection. It is not the province of the undersigned to speculate as to which records, or portions thereof, the claimant may consider objectionable nor to guess as to the basis of any objection which the claimant may interpose At the time of the in camera inspection, I will determine whether the objection should be sustained or overruled.

In the alternative, counsel may agree on a different procedure whereby the employer/carrier shall afford claimant’s counsel the opportunity to review the medical records received in response to the subpoenas prior to review by the employer/carrier. Should claimant’s counsel interpose an objection to any records, those records shall be sealed and submitted to the undersigned for an in camera inspection without review by the employer/carrier. Any records so submitted shall be accompanied by a Motion which specifies the nature of the claimant’s objection as well as the basis therefor. This is merely one example of an alternative procedure. Counsel are free to agree upon a different procedure, including the scheduling of the depositions via Zoom and the production of the records to claimant’s counsel in advance of the deposition.

The above procedure will allow the employer/carrier to take its discovery and also preserve the claimant’s objections for determination prior to the actual disclosure of the objected to records. See Scully vs. Shands Teaching Hospital, 128 So. 3d 986 (Fla. 1st DCA 2014) (holding that the trial court departed from the essential requirements of the law by failing to conduct an in camera review to limit disclosure of medical records to those relevant to the litigation).

What happens when a court overrules the 1.351(b) objections without performing an in camera review or outlining detailed instructions like those in the Order above? I am facing this now in a case. I can’t figure out if the court is a step ahead of me and entered the order requiring me to make objections, if any, during the 1.310 records custodian depositions now scheduled, thereafter performing an in camera review based on those objections, or if the ruling is simply a flat-out denial with no intention of ever performing the in camera review. I am proceeding as if it is the former. Opposing counsel seems to think it’s the latter. If she is right and the documents are produced and reviewed by her and her people without a court ruling following an in camera review, this could put the lawyer in legal peril. I have provided the lawyer with the Lyons citation and a copy of Judge Lewis’s Order, and asked that I be given the opportunity before or during the depositions to review the records privately to determine if I have any objections. In the alternative, I have indicated that I have no objection to all of the records being sent to me or the court in accordance with the procedure outlined in Lyons without having to bother deposing the records custodians.

This could be handled easily. It is not my intention to keep relevant records from the defense, only non-relevant records that are not reasonably calculated to lead to admissible evidence in the case. See Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5^th DCA 1997). I say produce the records and let the judge be the final word on what the other side should and should not be allowed to see. Opposing counsel does not seem agreeable to any of my reasonable approaches, seemingly taking the position that she and her people are allowed to see private records without restraint.

We shall see what happens.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

The case is on the trial docket. In the lead-up to calendar call, defendant filed a Motion in Limine seeking to prevent us from using the subsequent activity as evidence to overcome his denial. The motion has not yet been ruled upon by the trial judge.

Our client sustained catastrophic injuries while working on a construction project, an addition to the defendant’s personal residence. The defendant homeowner hired an unlicensed contractor to manage the project. Typically, Florida law prohibits property owners from using unlicensed contractors to run projects. However, the law provides an exception to the rule for work done on a residence where the homeowner undertakes the project as the owner-builder. See Florida Statute 489.103(7). Under the exception, the homeowner assumes the legal duties and liabilities that would otherwise belong to a licensed contractor, foremost among them protecting the safety of workers and being liable for injuries caused by a breach of the duty. It is our position that the unlicensed contractor was negligent, that this negligence caused our client’s accident, and since this was an owner-builder project, the defendant owner-builder is vicariously liable for the unlicensed contractor’s negligence.

Defendant executed paperwork to obtain the building permit. He is listed in the paperwork as the owner-builder. Defendant claims he did not know until after being sued that he undertook the project as the owner-builder and that the person he hired to manage the project was unlicensed. While these claims should not be enough to overcome the defendant’s liability, we want to stop them in their tracks to limit any chance of them gaining traction with an uncertain jury.

Nearly seven months after being served with our lawsuit, the defendant started another construction project on his property. He hired the same unlicensed contractor to run the project and completed the same owner-builder paperwork as in our case.

Understandably, Defendant does not want our jury to see this evidence. He argues that the evidence is irrelevant and unfairly prejudicial.

We responded to the defendant’s Motion in Limine as follows:

Relevance & Prejudice Florida Statute 90.401 defines relevant evidence as “evidence tending to prove or disprove a material fact.” Florida Statute 90.403 excludes relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice….”

Williams v. State of Florida, 110 So.2d 654 (Fla. 1959) is the seminal case on the admissibility of similar fact evidence. It is also authoritative on the issue of prejudice in the context of similar fact evidence. The case is a fascinating read.

Williams was convicted of rape and sentenced to death. His primary hope for reversal was to challenge the admission of testimony regarding his involvement in a similar factual situation. According to Florida’s Supreme Court, “The sum of the position of the appellant on this point is that the evidence was totally irrelevant and that it tended to establish a collateral crime to the undue prejudice of the appellant in the minds of the jury.”

In so many words, this is the identical argument being made by our defendant in asking the Court to suppress the evidence associated with the subsequent building permit.

Williams’s conviction and death sentence were upheld by the Florida Supreme Court.

After a thorough analysis of the jurisprudence on the subject going all the way back to early English law, the Court wrapped up its opinion with these words:

In view of our analysis of the precedents and for the future guidance of the bench and bar, the rule which we have applied in affirming this conviction simply is that evidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion [emphasis added]. This rule we hold applies to relevant similar fact evidence illustrated by that in the case at bar even though it points to the commission of another crime. The matter of relevancy should be carefully and cautiously considered by the trial judge. However, when found relevant within the limits of the stated rule, such evidence should be permitted to go to the jury.

By attempting to avoid liability by claiming he did not know that the contractor was unlicensed prior to executing our permit application and the associated Owner-Builder Disclosure Statement, the defendant has invited consideration of probative evidence regarding his interest in the contractor’s license status, his knowledge of that license status, his efforts to establish same, and his veracity regarding these matters prior to executing the permit paperwork. His execution of those permit papers, the circumstances surrounding same, and his delegation of all non-delegable duties to the unlicensed contractor are exceedingly material to this inquiry and our jury should have the opportunity to consider same.

********************

Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Rule 1.280 sets forth the general methods and scope of discovery. Concerning scope, subsection (b)(1) provides as follows:

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Multiple vehicles are available for obtaining discovery. Depositions, interrogatories, which are written questions, and requests for the production of documents, are the most common methods. Rule 1.350 addresses the request for documents. Depending on the stage of the proceeding, a response is due within 30 or 45 days of when the discovery is propounded.

The party must either produce the documents or voice an objection within the prescribed time period. Importantly, a party’s failure to respond or object to discovery within the time deadline results in a waiver of any objections that party may have to the discovery sought. Am. Funding, Ltd. v. Hill, 402 So. 2d 1369 (Fla. 1st DCA 1981).

Most parties are represented by lawyers. We see a lot of responses from lawyers to our production requests that read like this: “The material has been requested and will be produced upon receipt.” We read this response as the lawyer saying, ‘I have not received the documents from my client. When I do, they will be produced.’

The response is not an objection and does not assert sufficient grounds for failing to produce the material. Once the relevant time period has run, our procedure is to file a Motion to Compel Production. We make the following points in our Motion:

1. Rule 1.350 applies to parties to the lawsuit;
2. Lawyers are not parties, they are the agents of parties;
3. A lawyer’s role is limited to obtaining and reviewing the material and producing or objecting within the prescribed time period.
4. It is not a valid excuse for a party’s failure to produce the documents timely that the lawyer has not received them.

We are not aware of any Rule or case law that allows an indefinite delay of production pending receipt of the documents by the lawyer.

Discovery is an integral litigation component. Compelling full compliance leads to informed outcomes.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.

768.76(2)(a) defines “Collateral sources” as follows:

(a) “Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:
1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.
2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.
3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.
4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

Interestingly, under 768.76(2)(b), “Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiff’s recovery, the Workers’ Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health shall not be considered a collateral source.” Subpart (2)(b) is there to make it clear that the enumerated programs have a right of subrogation or reimbursement. However, as suggested by the second clause of subpart (1), there can be other entities that have paid compensation to the benefit of the claimant with the right of subrogation or reimbursement. The most common of these are health and disability insurance carriers. The right to subrogation or reimbursement can be by contract or common law. See Centex-Rodgers Construction Company v. Herrera, 761 So.2d 1215 (Fla. 4th DCA 2000). However, unlike most rights by contract, the common law right only applies if the insured has been compensated for all of his or her damages. See Humana Health Plans v. Lawton, 675 So.2d 1382 (Fla. 5th DCA 1996):

Where full recovery has been made and the insured has been made whole, any payments to the insured exceeding the actual damages may be viewed as a double recovery, thus equitably entitling the insurer to subrogation against the insured’s recovery. 675 So.2d at 1384; see also Magsipoc v. Larsen, 639 So.2d 1038 (Fla. 5th DCA 1994).

What often occurs when amounts have been paid for the benefit of the claimant by entities with the right of subrogation or reimbursement, is that the claimant negotiates with the entity to reduce or waive the lien. Liability carriers then argue that the claimant’s damages are the negotiated amount rather than the full amount paid by the collateral source. If the argument were valid, which it is not, it would reduce the liability carriers’ exposure. The argument was made and shot down in Centex-Rodgers Construction Company v. Herrera, M.D., 816 So.2d 1206 (Fla. 4th DCA 2002). The Court held as follows:

Section 768.76 of the Florida Statutes does not imbue a wrongful tortfeasor with the benefit of a plaintiffs settlement of a third party claim with a negotiated subrogation waiver. Bruner v. Caterpillar, 627 So.2d 46 (Fla. 1st DCA 1993).

In Dominos Pizza v. Wiederhold, 248 So.3d 212 (Fla. 5th DCA 2018), Medicare and Cigna paid $863,056.55 on the decedent’s behalf. The estate satisfied the liens for $51,612.49. Dominos argued that it would be an inappropriate windfall to allow the estate to recover the total amount paid by Medicare and Cigna. The trial court agreed. The 5th DCA disagreed. Here is what it said:

The estate has a right to claim medical expenses paid by or on Mr. Wiederhold’s behalf. Id. § 768.21(6)(b); Horton v. Channing, 698 So.2d 865, 869 (Fla. 1st DCA 1997) (determining that $425,824.42 paid by insurance providers constituted medical expenses paid on behalf of decedent, and therefore, constituted damages as provided by section 768.21(6)(b), despite fact that plaintiff and estate had no obligation to repay providers). Further, such damages are not subject to reduction when subrogation or reimbursement right exists. § 768.76(1), Fla. Stat. (2012); Sutton v. Ashcraft, 671 So.2d 301, 303 (Fla. 5th DCA 1996). “The waiver or relinquishment of such rights does not destroy their character.” Sutton, 671 So.2d at 303. “[I]t is the existence of such rights, not their exercise, which denies a tortfeasor the statutory right to a collateral source reduction.” Id.; see Centex-Rodgers Constr. Co. v. Herrera, 816 So.2d 1206, 1207 (Fla. 4th DCA 2002) (following Sutton, and noting that disability carrier’s release or waiver of its subrogation rights, pursuant to negotiated settlement, does not destroy character of disability payments). In other words, Domino’s cannot escape liability for medical expenses paid on Mr. Wiederhold’s behalf because she settled those claims. As this Court has explained:

It may seem unfair that, by virtue of a contractual arrangement with the insurance carrier, the survivors received substantially more than their stipulated damages and that the defendants are required to pay the full amount of damages even though part of those damages had been paid. On the other hand, plaintiffs’ counsel was ingenious in inducing Allstate, in return for a $95,000 discount on the face amount of the UM coverage, to surrender its subrogation rights and the opportunity to pursue and settle a claim of speculative value. There is no reason that ingenuity should accrue to the benefit of the tortfeasors. Walker v. Hilliard, 329 So.2d 44 (Fla. 1st DCA 1976). The principle behind the collateral source rule is that it is better for the wronged plaintiff to receive a potential windfall than for a tortfeasor to be relieved of responsibility for the wrong. Respess v. Carter, 585 So.2d 987, 990 (Fla. 5th DCA 1991).

Based on the plain wording of section 768.21(6)(b), we conclude the trial court erred in prohibiting Mrs. Wiederhold from seeking compensation for medical expenses paid on Mr. Wiederhold’s behalf.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Liability insurance companies have a legal obligation to act in the best interests of their insureds. Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla. 1980) (An insurer who assumes the defense of the insured also assumes a duty to act in good faith and with due regard to the interests of the insured.) More specifically, in actions by third parties against the insured, the insurer must act in good faith and be diligent in its effort to negotiate a settlement within policy limits. Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). If the carrier fails to do so and a final judgment is entered against its insured for an amount in excess of the policy limit, in a subsequent bad faith action the carrier may be forced to satisfy the excess judgment and pay attorney’s fees and costs. The excess can be many multiples of the policy limit, sometimes in the millions of dollars. The reasoning behind bad faith jurisprudence is that the carrier, by failing to adjust the claim in good faith, has exposed its policyholder to an otherwise avoidable financial burden.

Insurance carriers want to believe that Chapter 7 discharges extinguish their bad faith liability because the insured is not harmed by or liable for the excess verdict. In Camp v. St. Paul Fire & Marine Ins. Co., 616 So.2d 12 (Fla., 1993), the Florida Supreme Court ruled otherwise.

There are three types of bankruptcies, Chapter 7, 11, and 13.

• Chapter 7. This chapter of the Bankruptcy Code involves liquidation” – the sale of a debtor’s nonexempt property and the distribution of the proceeds to creditors.
• Chapter 11. This chapter of the Bankruptcy Code generally provides for reorganization, usually involving a corporation or partnership. A chapter 11 debtor usually proposes a plan of reorganization to keep its business alive and pay creditors over time. People in business or individuals can also seek relief in chapter 11.
• Chapter 13. This chapter of the Bankruptcy Code provides for adjustment of debts of an individual with regular income. Chapter 13 allows a debtor to keep property and pay debts over time, usually three to five years.

Camp involved a medical malpractice case where the injured party obtained a three million dollar verdict after the the carrier failed to settle the case for the defendant doctor’s $250,000 insurance policy limit. Before the verdict was rendered, the defendant doctor filed for Chapter 7 bankruptcy. This put an automatic stay on the malpractice proceedings. While the case was under the stay order, the bankruptcy court granted a discharge that shielded the doctor from personal liability for any claims pending against him as of the date of his bankruptcy filing. Thereafter, the bankruptcy court authorized Camp, the injured party, to proceed with her lawsuit for the purpose of liquidating her claim in the bankruptcy case. (She requested relief from the stay by filing a motion under Bankruptcy Rules 4001 and 9014, showing cause as specified in 11 U.S.C. Sec. 362(d).) At the same time, however, the bankruptcy court specifically ruled that the doctor would be not be personally liable for any judgment Camp obtained against him in her state court lawsuit.

Plaintiff Camp and the doctor’s bankruptcy trustee sued the doctor’s liability insurance company for bad faith. The carrier argued that its alleged bad faith liability was extinguished because the discharge of the debt in bankruptcy eliminated any harm to its insured. In ruling against the carrier, the Florida Supreme Court explained that the excess judgment harmed the bankruptcy estate by increasing the debt of the estate to the detriment of its creditors. (A verdict is not the same thing as a final judgment. Post-verdict court proceedings are required to secure a final judgment. Depending on a variety of factors — e.g., setoffs and costs — the amount of a final judgment can be more or less than or the same as the verdict amount.)

To best coordinate with the trustee, who needs to be onboard in order to be able to pursue the bad faith action, it advisable to make early contact with the trustee and to attend bankruptcy hearings. Many trustees need to be educated on the benefit to the estate of a bad faith action.

The injured party may be content with resolving the case within the limit of the liability policy. Obtaining relief from the bankruptcy stay in this circumstance is a simple matter. Motions filed in the Bankruptcy Court seeking this relief are routinely granted. See In re Jet Fla. Sys., Inc., 993 F. 2d 970 (11th Cir. 1989). The caveat to this decision is that any recovery is capped at the insurance policy coverage limit regardless of a higher verdict.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.