Personal Injury - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. /// Florida Premises Liability Law – Open & Obvious and Building Code Violations

Jeffrey P. Gale, P.A. — Tue, 31 Mar 2026 18:17:23 GMT

The open and obvious doctrine, as applied in Florida premises liability cases, has become a vexatious legal doctrine that is too often used to support summary judgment despite longstanding case law holding that the obvious nature of a hazard does not necessarily discharge a landowner’s duty to maintain reasonably safe premises. That is precisely what occurred in Sutley v. Ocean Trillium Suites, Inc., 422 So. 3d 1241 (Fla. 5th DCA 2025), where the trial court granted summary judgment based on the open and obvious nature of the condition, effectively allowing the obviousness of the hazard to eliminate the landowner’s duty rather than submitting issues of comparative fault and foreseeability to the jury. The Fifth District Court of Appeal reversed and remanded the trial court’s ruling.

Under Florida law, property owners and those in possession or control of premises owe invitees a duty to maintain the premises in a reasonably safe condition and to correct or warn of dangerous conditions of which they knew or should have known. See Frazier v. Panera, LLC, 367 So. 3d 565, 568 (Fla. 5th DCA 2023); Parker v. Shelmar Prop. Owner’s Ass’n, 274 So. 3d 1219, 1221 (Fla. 5th DCA 2019); Trainor v. PNC Bank, Nat’l Ass’n, 211 So. 3d 366, 368 (Fla. 5th DCA 2017). Florida’s open and obvious doctrine is a principle in premises liability law that can limit or eliminate a property owner’s liability when a dangerous condition is so visible and apparent that a reasonable person would notice and avoid it. However, an open and obvious condition does not automatically eliminate the landowner’s duty, but it can affect duty, breach, and comparative negligence depending on the circumstances.

While application of the open and obvious doctrine by trial courts to bar claims against defendants has been upheld on appeal in some Florida cases, the preferred procedure is to present the issue to the jury, as the obviousness of a condition typically implicates comparative negligence rather than eliminating a landowner’s duty as a matter of law.

In Sutley, the alleged dangerous condition consisted of an abrupt change in elevation between the sidewalk and the ramp leading to the Appellee’s pool area. Appellant presented expert testimony that the condition constituted a building code violation. The violation of the building code constituted prima facie evidence of negligence, reflecting a breach of the duty to maintain reasonably safe premises and sufficient to defeat summary judgment. See Dudowicz v. Pearl on 63 Main, Ltd., 326 So. 3d 715, 719 (Fla. 1st DCA 2021) (reversing summary judgment where hotel’s violation of building code provisions constituted prima facie evidence of negligence based on a breach of the hotel’s duty to maintain its premises in a safe condition); Parker, 274 So. 3d at 1221 (holding that summary judgment was improper where plaintiff’s expert opined that the placement of a wheel stop near defendant’s building constituted a dangerous condition in violation of the Florida Building Code, which constituted prima facie evidence of negligence); Cruz v. Wal-Mart Stores E., LP, 268 So. 3d 796, 798-800 (Fla. 4th DCA 2019) (holding that expert opinion that a raised manhole cover was a dangerous condition in violation of the Broward County Code was sufficient to defeat defendant’s motion for summary judgment); Doering v. Vills. Operating Co., 153 So. 3d 417, 418 (Fla. 5th DCA 2014) (reversing summary judgment where evidence was presented that a warped board on defendant’s deck violated a building code provision requiring any elevation changes over a quarter inch to be beveled); Holland v. Baguette, Inc., 540 So. 2d 197, 198 (Fla. 3d DCA 1989) (reversing summary judgment where the affidavit of plaintiff’s engineer supported the allegation that a step over was built in violation of the South Florida Building Code, which, if proven, would constitute prima facie evidence of negligence). Accordingly, we reverse and remand for further proceedings.

In reversing the trial court, the appellate court held that the jury should determine (1) whether the defendant breached its duty to maintain the premises in a reasonably safe condition, (2) whether the condition was so open and obvious as to eliminate the property owner’s duty, and (3) whether the dangerous condition was the proximate cause of the Appellant’s injuries.

In personal injury cases, summary judgment on liability is seldom appropriate because these cases typically present genuine issues of material fact that are exclusively for the trier of fact, usually a jury, to decide.

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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.

Jeffrey P. Gale, P.A. // Motor Vehicle Rental Agencies Evade Vicarious Liability Under the Dangerous Instrumentality Doctrine

Jeffrey P. Gale, P.A. — Wed, 03 Dec 2025 18:46:58 GMT

Companies make billions of dollars leasing and renting motor vehicles. One might expect that with such profits would come a corresponding responsibility to compensate innocent people injured through the negligent operation of those vehicles. They don’t.

The Florida Legislature once believed they should. It may still believe so, but its will has been overridden by federal law.

Section 324.021(9), Florida Statutes, requires rental and leasing companies to maintain substantial minimum liability insurance on vehicles operated in this state. But that requirement has been superseded by 49 U.S.C. § 30106 – the Graves Amendment – enacted in 2005.

Notably, the Graves Amendment appears to preserve state “financial responsibility” laws. Section 30106(b) provides:

“(b) Financial Responsibility Laws.—Nothing in this section supersedes the law of any State … (2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.”

Despite this language, the Florida Supreme Court held that § 324.021(9) is not a financial responsibility law. Rosado v. DaimlerChrysler Financial Services Trust, 112 So. 3d 1165 (Fla. 2013). As a result, rental and leasing companies have no obligation to maintain liability insurance on their vehicles.

Two lessons emerge.

First, We the People should not assume that state and federal governments always act in our best interests. Sometimes profits win out over people. The Graves Amendment is a prime example: it was designed to shield rental and leasing companies’ profits, leaving injured individuals without the insurance protections the Florida Legislature intended.

Second, at least in Florida, individuals do have a way to protect themselves against uninsured or underinsured drivers: uninsured/underinsured motorist (UM/UIM) coverage. The contours of UM/UIM coverage are set out in § 627.727, Florida Statutes. In short, vehicle owners can purchase this coverage to protect themselves and their families from irresponsible vehicle owners and operators.

Here is a real life example of how the Graves Amendment harms innocent people: We were contacted by a young woman who lost her leg in a horrific crash near Hard Rock Stadium. Her car had broken down. A friend came to help and parked behind her disabled vehicle. As she stood between the two cars, another vehicle slammed into the friend’s car, crushing her between the bumpers.

The at-fault vehicle was under a long-term lease – the type of lease addressed in § 324.021. But because the lessee failed to maintain the insurance required by that statute, and because the Graves Amendment prevents the lessor from being held responsible, only $10,000 in liability coverage was available for her catastrophic injuries. We could not help her.

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

Jeffrey P. Gale, P.A. // The Risks and Realities of Cash Advance Funding in Florida Injury Cases

Jeffrey P. Gale, P.A. — Thu, 31 Jul 2025 19:03:31 GMT

The competition to advance money to individuals injured in accidents is intense, driven by the prospect of a high return on investment. Numerous companies, including large national players, engage in this market, offering what is known as “non-recourse funding advances.” Because the only collateral is the injury claim itself—whether a workers’ compensation or personal injury case—these companies are not bound by Florida’s usury laws, which cap interest rates at 18%. As a result, repayment amounts can quickly double or triple the original principal.

Advance companies have no recourse beyond the case. They cannot foreclose on property or garnish wages. If the case fails or the recovery is insufficient, the company bears the loss. Given the inherent uncertainties of litigation, this risk is very real. Cases can “go south” for a variety of reasons.

To secure repayment, funding companies require injured individuals to sign lien and assignment agreements, obligating their attorneys to satisfy the lien directly from any settlement or judgment proceeds.

Important Considerations

Pressure to Accept Low Settlements: Because of compounding interest, clients may feel compelled to accept early, inadequate settlement offers to stop the financial bleeding.
Pressure to Reject Fair Settlements: Conversely, some clients may reject reasonable offers in hopes of securing a recovery large enough to pay off the advance, thereby taking unreasonable risks at trial.
Risk of Privilege Waivers: In assessing risk, some funding companies request detailed written evaluations from attorneys. If shared, these communications could be used by opposing parties to argue waiver of attorney-client or work-product protections.

As a general practice, we advise clients to avoid these advances. However, we also recognize that financial necessity can override ideal strategy. Recently, we assisted a client with obtaining an advance to pay for a crucial surgery. He had suffered catastrophic injuries, lacked health insurance, and had exhausted his personal funds. While the repayment will be significant, the advance has given him access to medical care he would not otherwise have received. He was deeply grateful for our assistance.

Suggested Funding Companies

For clients who insist on proceeding, we provide names of several reputable funding companies as options, including:

This is not an exhaustive list. Clients are strongly encouraged to research companies carefully, paying close attention to interest rates and repayment terms.

Why We Can’t Provide Advances

Clients often ask us directly for financial assistance. We must respectfully decline. Florida Bar Rule 4-1.8(e), set forth below, expressly prohibits lawyers from providing financial aid to clients in connection with pending or contemplated litigation, except in very limited circumstances. The purpose of this rule is sound: a lawyer with a financial stake in a client’s personal situation may feel pressured to compromise the case to secure repayment—for example, by pushing for an early settlement.

Rule 4-1.8(e) – Financial Assistance to Clients
A lawyer is prohibited from providing financial
assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

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

Jeffrey P. Gale, P.A. // Fundamentals Matter — Proximate Cause

Jeffrey P. Gale, P.A. — Mon, 28 Jul 2025 17:38:59 GMT

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. // Election of Remedies in Florida: The Point of No Return

Jeffrey P. Gale, P.A. — Tue, 22 Jul 2025 16:27:16 GMT

Some legal wrongs give the aggrieved party more than one avenue of redress. A common example arises when an injured person must choose between pursuing a remedy under common law or seeking benefits under Florida’s Workers’ Compensation Law, Chapter 440, Florida Statutes. However, once a path is chosen and pursued past a certain threshold, the alternative remedy may no longer be available. This is the doctrine of Election of Remedies.

It is not uncommon for the injured party to first receive workers’ compensation benefits before deciding whether to pursue civil damages. Florida appellate courts have thoroughly analyzed how far one can go down the workers’ compensation path before the election becomes binding. Far less guidance exists, however, on how far one may go in a civil action before being barred from later seeking workers’ compensation benefits.

Yet, the governing legal principle applies to both scenarios:

An election becomes binding “when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other,” and “[i]t is generally conceded that to be conclusive it must be efficacious to some extent.”
— Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); Williams v. Duggan, 153 So. 2d 726 (Fla. 1963)

In practice, determining when an election has matured is often clearer in civil litigation. Civil damages are not awarded until a court determines whether common law is the appropriate remedy. Until that point, the election generally remains open.

The Hume Decision

The case of Hume v. Thomason, 440 So. 2d 441 (Fla. 1st DCA 1983), illustrates the consequences of making a binding election. Hume, a carpenter injured while working on the Thomasons’ home, was entitled to elect between workers’ compensation and a civil lawsuit under § 440.11(1), Florida Statutes, because the employer failed to secure workers’ compensation coverage. Hume chose to sue in civil court, but the court entered final summary judgment against him. He then sought workers’ compensation benefits. The Thomasons objected, arguing that Hume had elected his remedy.

The judge of compensation claims agreed, and the First DCA affirmed:

“The summary judgment rendered in the circuit court was obviously efficacious from the Thomasons’ point of view, as it worked to their advantage and to Hume’s disadvantage. Thus, Hume’s election matured when judgment was entered finally adjudicating the rights of the parties. He was precluded thereafter from pursuing his workers’ compensation claim.”

The court also observed the unfairness of requiring the employer to defend the same injury claim in two different forums:

“[T]he employer should not be twice placed in the position of defending himself where he had had to defend either a damage suit on the one hand or a compensation claim on the other to its final conclusion.”

In short, Hume elected his remedy—and lost. End of story.

The Gilbert Decision

The principle was similarly tested in Gilbert v. Florida Birth-Related Neurological Injury Compensation Association, 724 So. 2d 688 (Fla. 2d DCA 1999). There, the plaintiffs settled a civil medical negligence claim and later filed a petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (NICA). An administrative law judge dismissed the petition, citing the doctrine of election of remedies. The Second DCA reversed:

“The remedies are mutually exclusive, but only upon a determination of whether the infant is a NICA baby. That is the core issue of both the civil action and the administrative petition. … The resulting settlement of [the civil] action, although it may imply [the baby was not covered under NICA], fell short of such a determination.”

In other words, an election is not binding unless the underlying factual issue has been definitively resolved.

Application in Workers’ Compensation

In workers’ compensation matters, benefits are often received passively, without the injured worker affirmatively electing them. Such passive receipt—even if substantial—typically does not constitute a binding election.

More commonly, the issue arises when a claimant receives some benefits and then files a civil suit. Despite the general guidance from Duggan, the outer limit of how far one can go in the compensation system before forfeiting a civil remedy remains somewhat unclear.

Still, as shown in Hume and Gilbert, most decisions support the idea that an election is not binding until a factual determination on the core issue has been made. In civil cases, that core issue may be whether the claim is governed by the exclusive remedy provision of Chapter 440. In workers’ compensation cases, it may be whether the injury falls within the Act’s coverage.

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

Jeffrey P. Gale, P.A. // Mental and Nervous Injuries Under Florida Law: The Impact Rule and Workers’ Compensation

Jeffrey P. Gale, P.A. — Thu, 12 Jun 2025 20:06:05 GMT

Florida’s liability and workers’ compensation systems take a cautious approach when it comes to awarding benefits for mental and emotional injuries. This caution stems from a fundamental public policy concern: without clear limits, allowing recovery for purely emotional harm could lead to a flood of speculative or fabricated claims. As the Florida Supreme Court explained in R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995), this concern is central to the application of what’s known as the “Impact Rule.”

What Is the Impact Rule?

Under the Impact Rule, a plaintiff cannot recover damages for emotional distress caused by another’s negligence unless the emotional distress arises from physical injuries sustained during a physical impact. This requirement is firmly rooted in Florida case law. See Southern Baptist Hosp. of Fla. v. Welker, 908 So. 2d 317 (Fla. 2005).

The rule applies to both common law personal injury claims and statutory workers’ compensation claims. It sets a high bar for plaintiffs and claimants seeking compensation for psychological harm, requiring a demonstrable link to physical trauma.

Common Law Exceptions to the Impact Rule

Over time, the Supreme Court of Florida has recognized a narrow set of exceptions to the Impact Rule. These exceptions apply only in specific circumstances where emotional distress is particularly foreseeable, severe, and supported by strong public policy justifications. Examples include:

Intentional Infliction of Emotional Distress: Eastern Airlines, Inc. v. King, 557 So. 2d 574 (Fla. 1990)
Witnessing a Close Relative’s Trauma: Champion v. Gray, 478 So. 2d 17 (Fla. 1985)
Wrongful Birth Claims: Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992)
Stillbirth of a Child: Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997)
Breach of Confidentiality: Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002)
Attorney Malpractice Resulting in Psychological Harm: Rowell v. Holt, 850 So. 2d 474 (Fla. 2003)

These exceptions are rare and narrowly drawn. As the Supreme Court of Florida has emphasized, “[e]xceptions to the rule have been narrowly created and defined in a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.” Rowell, 850 So. 2d at 478.

By contrast, courts have declined to recognize exceptions in other emotionally charged situations. For example:

Negligent Misdiagnosis of HIV: R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995)
Disclosure of a Student’s Sexual Orientation: Woodard v. Jupiter Christian School, Inc., 913 So. 2d 1188 (Fla. 2005)

Application in Workers’ Compensation Law

Workers’ compensation in Florida is governed by statute—primarily Chapter 440 of the Florida Statutes. Mental and nervous injuries are addressed specifically in section 440.093, which mirrors the Impact Rule. Under this provision, workers cannot receive compensation for psychiatric injuries resulting solely from stress, fright, or excitement, absent a physical injury.

However, there are limited statutory exceptions for first responders—defined in section 112.1815(1) as firefighters, paramedics, emergency medical technicians, and law enforcement officers.

Key Exceptions:

Section 112.1815(2)(a)3: First responders may receive medical benefits for mental or nervous injuries arising from the job, even without physical trauma. Indemnity benefits, however, are not allowed under this provision.
Section 112.1815(5): In cases involving posttraumatic stress disorder (PTSD) resulting from specifically enumerated traumatic events, first responders may receive both medical and indemnity benefits. This is a significant exception that reflects the unique risks faced by these professionals.

Final Thoughts: Fairness vs. Fraud Prevention

Critics argue that the Impact Rule unfairly bars legitimate claims by those who suffer serious psychological harm in the absence of physical trauma. It’s a valid concern. But as tort scholars such as Prosser and Keeton have explained, requiring a physical impact serves a vital evidentiary function: “It gives assurance that the claimed injury is genuine.” Prosser and Keeton on the Law of Torts § 54, at 363 (5th ed. 1984).

Ultimately, Florida courts and lawmakers continue to strike a delicate balance—acknowledging the real harm caused by emotional trauma while seeking to avoid opening the door to unverifiable and speculative claims.

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

Jeffrey P. Gale, P.A. // Understanding Florida’s Rear-End Collision Presumption

Jeffrey P. Gale, P.A. — Wed, 11 Jun 2025 14:56:33 GMT

In 1958, Florida joined a small number of states in adopting a legal presumption of negligence against trailing drivers involved in rear-end motor vehicle collisions. This shift was established in McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958), and later endorsed by the Florida Supreme Court in Bellere v. Madsen, 114 So.2d 619 (Fla. 1959).

The Legal Rationale

The presumption is rooted in practical evidentiary concerns. Typically, plaintiffs bear the burden of proving all four elements of negligence: duty, breach, causation, and damages. But in rear-end crashes, plaintiffs often know they were hit from behind but have no access to the circumstances leading up to the impact—leaving gaps in proof for breach and causation.

To address this, Florida courts created a rebuttable presumption: if a rear-end collision occurs, the trailing driver is presumed negligent. This shifts the burden of production to the defendant, who must offer a “substantial and reasonable explanation” to overcome the presumption. If successful, the case proceeds to the jury without the benefit of the presumption. See Gulle v. Boggs, 174 So.2d 26, 28–29 (Fla. 1965); Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977).

Originally developed during Florida’s contributory negligence era—where any negligence on the plaintiff’s part barred recovery—the rule had significant weight. Under today’s comparative fault framework, however, negligence is apportioned, and partial fault does not automatically defeat a claim. See Shayne v. Saunders, 176 So. 495 (Fla. 1937); Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA 1968), quashed on other grounds.

Modern Interpretation: Birge v. Charron

In Birge v. Charron, 107 So.3d 350 (Fla. 2012), the Florida Supreme Court clarified that the rear-end presumption is “an evidentiary tool” designed to bridge gaps in liability and causation when evidence is one-sided. Importantly, it is not absolute.

Where there is evidence that the front driver may have been negligent, the presumption is rebutted. At that point, the case must go to a jury for resolution—without the presumption. It may remain only as a permissible inference the jury is free to accept or reject. This standard was reaffirmed in Crime v. Looney, 328 So.3d 1157 (Fla. 1st DCA 2021).

Real-World Application: A Case Study

We recently handled a case involving a catastrophic, multi-vehicle crash on Florida’s Turnpike. Our client was sideswiped by an SUV that had been rear-ended, causing their vehicle to be propelled into a tree at high speed. The chain-reaction began with a rear-end collision—clearly placing the trailing vehicle at the center of the causation analysis.

We argued that the presumption of negligence should apply to the vehicle that initiated the sequence. However, the court noted that the rear-ended SUV had come to a sudden stop on a section of highway where such stops are not expected, unlike urban roads with frequent stops for businesses or intersections.

Because there was a factual dispute over whether the front vehicle’s conduct contributed to the crash, the court ruled that the presumption did not apply. The case ultimately settled for a confidential amount.

Key Takeaways

Presumption of Negligence: In Florida, a rear-end collision creates a presumption that the trailing driver was negligent.
Rebuttable Standard: The presumption can be rebutted by presenting a reasonable explanation (e.g., sudden, unexpected stop by the lead vehicle).
Comparative Fault: Even if the lead driver was partially at fault, liability can be shared rather than barred entirely.
Not Always Applicable: The presumption is less likely to apply on highways or areas where sudden stops are unusual.

This rule continues to play a vital role in rear-end crash litigation, especially where direct evidence is hard to come by. But as our case illustrates, it is not a one-size-fits-all solution.

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

Jeffrey P. Gale, P.A. // Why Florida’s Sovereign Immunity Cap Defeats Accountability and Justice

Jeffrey P. Gale, P.A. — Tue, 10 Jun 2025 20:42:06 GMT

One of the central purposes of a strong civil justice system is to promote public safety by holding wrongdoers financially accountable. When negligent individuals or corporations know they may face significant financial liability, they are far more likely to act responsibly. Short of criminal prosecution, few things are more effective at incentivizing safe conduct than the threat of losing money.

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. // Understanding Workers’ Compensation Liens and Uninsured Motorist Claims Under Florida Law

Jeffrey P. Gale, P.A. — Sun, 08 Jun 2025 19:36:52 GMT

It is not uncommon for employees to be injured in motor vehicle accidents while acting within the course and scope of their employment. Such incidents frequently implicate multiple layers of insurance coverage.

Regardless of fault, injured employees may be eligible for benefits including workers’ compensation, Personal Injury Protection (PIP), and health insurance (including Medicare). Workers’ compensation and PIP are considered primary over Medicare, meaning they must pay first. If Medicare does make a payment, it typically expects to be reimbursed from any subsequent workers’ compensation or personal injury recovery.

When an injured employee is not at fault, they may seek damages through a third-party civil action against the negligent driver and, if different, the vehicle’s owner. Recovery in these cases typically comes from the tortfeasor’s and owner’s bodily injury (BI) liability insurance or, if applicable, personal assets.

In many cases, however, the at-fault party either lacks BI coverage altogether or carries insufficient limits. Florida law addresses this risk through uninsured/underinsured motorist (UM/UIM) coverage, governed by § 627.727, Florida Statutes. This optional coverage is designed to fill the gap left by the inadequacy—or absence—of BI insurance.

Per § 627.727(1), the purpose of UM/UIM coverage is:

“…for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.”

The Workers’ Compensation Lien Under § 440.39

Section 440.39, Florida Statutes, grants workers’ compensation (WC) carriers an equitable lien on any judgment or settlement obtained by the injured worker from a third-party tortfeasor. This lien allows the carrier to recover benefits previously paid out, including indemnity and medical expenses.

However, critically, the WC lien does not attach to UM/UIM proceeds. Florida courts have addressed this distinction:

Volk v. Gallopo, 585 So. 2d 1163 (Fla. 4th DCA 1991): Held that a WC carrier cannot benefit from a UM recovery due to the plain language of § 440.39(3)(a), which excludes UM recoveries from lien applicability.
§ 627.727(1), Fla. Stat.: Explicitly states that UM coverage “shall not inure directly or indirectly to the benefit of any workers’ compensation … carrier.”

When BI and UIM Coverage Coexist: Procedural Mechanics

In claims involving both BI and UIM, procedural requirements under § 627.727(6)(a)-(b) govern how settlements must be handled:

(a) Notification Requirement

If the injured party agrees to settle with the liability insurer but the settlement won’t fully satisfy their claim (thereby triggering a UIM claim), they must notify all UIM carriers by certified or registered mail. The UIM carrier then has 30 days to either:

Authorize the settlement, or
Preserve subrogation rights under paragraph (b).

(b) Preservation of Subrogation Rights

If the UIM carrier elects to preserve subrogation, it must:

Pay the BI settlement amount to the injured party within 30 days.
Thereafter, the UIM carrier may pursue subrogation against the at-fault party and their liability carrier.

This mechanism ensures the UIM carrier can protect its reimbursement rights by preventing the injured party from releasing the tortfeasor from further liability.

When UM is BI

In Metrix South v. Rose, 758 So. 2d 1259 (Fla. 4th DCA 2000), the UIM carrier refused to authorize settlement of a $100,000 BI offer and instead paid that amount directly to the claimant to preserve subrogation rights. The workers’ compensation carrier claimed a lien on the payment.

The trial court ruled that the payment constituted UM benefits, thereby exempt from the lien under § 440.39. However, the Fourth DCA reversed, holding that the payment was the equivalent of a third-party recovery, making it subject to the WC lien:

“… the trial court erred in characterizing the $100,000 payment to appellees as UM benefits and not a judgment or settlement recovered by the employee.”

This decision illustrates the complexity that arises when UM and UIM coverage functions as a stand-in for third-party BI liability, particularly in lien determinations.

Conclusion

Understanding the relationship between workers’ compensation lien rights and UM/UIM insurance is essential in motor vehicle accident cases involving injured workers. While Florida law generally prohibits WC carriers from recovering UM/UIM proceeds, exceptions exist—especially where UIM payments substitute for BI coverage through statutory subrogation mechanisms.

Practitioners must closely evaluate the structure and source of all settlements to determine lien exposure under § 440.39, and comply with § 627.727’s procedural requirements when both BI and UIM are in play.

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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. /// Uber Drivers and Passengers, Beware!

Jeffrey P. Gale, P.A. — Wed, 30 Apr 2025 17:22:19 GMT

Much has been written about the type of insurance coverage available to Uber passengers and other third parties for accidents caused by Uber drivers. Less has been written about the coverage available to Uber drivers and their passengers for injuries caused by third parties such as other drivers.

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. /// Personal Injury Liability Cases — The Perils of Ignoring Medicare’s Future Interest

Jeffrey P. Gale, P.A. — Tue, 29 Apr 2025 18:24:55 GMT

Our law firm handles both workers’ compensation and personal injury cases, claimant’s/plaintiff’s side only. For years we have been dealing with Medicare Set-Asides (MSA) in our workers’ compensation cases. We have not been doing it in our personal injury cases. It may be time to start.

A Medicare Set-Aside is a legal device used to make sure Medicare covers future medical expenses associated with accident-related injuries.

When Medicare began in 1966, it was the primary payor for all claims except for those covered by Workers’ Compensation, Federal Black Lung benefits, and Veteran’s Administration (VA) benefits. In 1980, Congress passed legislation to expand the exception list to include the following plans:

Liability insurance plans (automobile, premises)
No Fault (PIP)
Self-Insured

All of these plans, rather than Medicare, are considered primary payors of medical expenses covered by the respective policies. In 2007, Congress passed legislation imposing reporting requirements on primary payors. The requirements, which involve furnishing Medicare with claim-related information, are laid out in section 111 of the Medicare, Medicaid, and Schip Extension Act of 2007. The purpose of the requirements is to keep Medicare from paying for medical care that is otherwise the responsibility of primary payors. Congress has decided that Medicare, which is a taxpayer-funded program, should not bear primary responsibility for medical expenses covered by insurance policies and self-insureds.

The Centers for Medicare & Medicaid Services (CMS) has issued rules for when an MSA must be used in workers’ compensation cases. The guideline is that injured workers must be eligible for Medicare or expect to be eligible within 30 months of the settlement of the workers’ compensation case.

Individuals become eligible for Medicare based on age or disability. The age for entitlement is 65, while individuals under 65 become eligible after they have been qualified to receive Social Security Disability Income (SSDI) benefits for 24 months. Many people injured in accidents apply for SSDI, implicating MSA issues.

CMS has not issued guidelines for personal injury cases. However, as the reporting language and other requirements do not distinguish between workers’ compensation and personal injury cases, it is reasonable to conclude that the MSA law applies equally to both.

An MSA designates portions of the proceeds of a settlement to pay for future accident-related medical expenses. Typically, the set-aside amount is determined by experts employed by the parties — in workers’ compensation cases, the expense is always covered by the carriers — based on medical conditions and anticipated needs. In many instances, CMS will review the proposed set-aside amount to determine adequacy. It has the option of approving the proposed amount or requiring more. On rare occasions, it will even require a lower amount. To avoid future issues, it is always better to get CMS’s approval. However, CMS will only review WCMSA proposals that meet the following criteria:

The claimant is a Medicare beneficiary and the total settlement amount is greater than $25,000.00; or
The claimant has a reasonable expectation of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.00

Medicare Set-Asides are not mandatory. No law is violated for not using one. However, if one isn’t used where the injured person is eligible for Medicare or expects to be eligible within 30 months of the settlement, Medicare will require that 100% of the settlement money be used to pay for accident-related medical services before it will begin to cover any accident-related medical expenses. (Even without an MSA, Medicare will continue to cover the medical expenses of care unrelated to the accident.)

With an MSA, especially one that has been pre-approved by CMS, Medicare will become the primary payor once the MSA money is exhausted. However, CMS places the burden on the Medicare recipient to prove the money was exhausted appropriately. Because the paperwork is onerous and exacting, it may be advisable to use a company to administer the MSA. A number of companies offer the service at a reasonable rate — $1,000 for one we did recently.

An MSA can also be self-administered. Because of the difficulty in administering the MSA and the consequences of failing to do so correctly, we have our clients who choose this route sign a document acknowledging the risks and their duties and responsibilities.

The need for an MSA can make it more difficult to settle a case. Except to pay for medical care, a portion of the settlement proceeds is beyond the reach of the injured party. Some of our clients decide to use the MSA-earmarked money on unrelated expenses. Where, after thoughtful consideration, it is decided that the medical needs for the accident-related injuries will be nominal, this can be a safe option.

There is no reason to believe that MSAs are not a necessary tool in personal injury cases. It may be time to start treating them like they are.

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

Jeffrey P. Gale, P.A. /// Premises Liability: Landlord’s Post-possession Duty to Repair Dangerous Defective Conditions

Jeffrey P. Gale, P.A. — Fri, 18 Apr 2025 19:48:43 GMT

Our law firm receives a steady stream of inquiries from tenants, mostly residential, regarding dangerous conditions inside of their units. If someone has been injured, we ask if the landlord or maintenance company had notice of the dangerous condition in advance of the incident. If nobody has yet been injured, we instruct the callers to notify their landlord and maintenance company in writing (email will do).

The reason for this is because landlords and maintenance companies have a continuing duty to repair dangerous conditions upon notice of their existence, unless waived by the tenant. Mansur v. Eubanks, 401 So. 2d 1328, 1330 (Fla. 1981 and § 83.51(1), Fla. Stat. (2021).

In Perez v. Belmont at Ryals Chase Condo, 393 So. 3d 859 (Fla. 2nd DCA 2024), the tenant was injured by falling on loose tiles inside his unit. On two occasions, his wife made complaints about the loose tile to the property management company and its maintenance supervisor. Nevertheless, in reliance on an appellate case in which the landlord was not notified in advance of the dangerous condition (a loose and unsecured towel rack, which was used by the tenant to support herself while exiting a shower), Youngblood v. Pasadena at Pembroke Lakes South, Ltd., 882 So. 2d 1097 (Fla. 4th DCA 2004), the trial judge granted summary judgment for the defendants, the building owner and maintenance company, effectively throwing the case out of court. In essence, the trial judge decided that because the tenant knew of the open and obvious condition, the landlord and maintenance company did not have a duty to eliminate the danger. The Second District Court of Appeal disagreed with the trial judge, reversing the summary judgment.

Another key to the appellate decision in the Perez case is that the condition was considered inherently dangerous. In Menendez v. Palms West Condominium Association, Inc., 736 So. 2d 58 (Fla. 1st DCA 1999), a tenant was shot in the head by an unknown assailant after he opened the front door to answer a knock. In his lawsuit for damages, the tenant alleged that the defendants were negligent for failing to install a viewing device in the front door of the apartment. In finding that “[t]here is no evidence that any specific person had any actual or constructive knowledge of any fact that arguably would make the incident described in [the complaint] reasonably foreseeable,” the trial judge granted summary judgment for the defendants. In essence, the trial court had decided that the lack of a viewing device was not inherently dangerous. The First District Court of Appeal agreed.

The landlord’s duty to a residential tenant: “A landlord’s duty to its residential tenant can be properly divided into a prepossession duty and postpossession duty. Before allowing a tenant to take possession of the residence, a landlord “has a duty to reasonably inspect the premises … and to make the repairs necessary to transfer a reasonably safe dwelling unit to the tenant unless defects are waived by the tenant.” Mansur v. Eubanks, 401 So. 2d 1328, 1330 (Fla. 1981). “After the tenant takes possession, the landlord has a continuing duty to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless waived by the tenant.” Id.; see also § 83.51(1), Fla. Stat. (2021).” Perez at 861.

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

Jeffrey P. Gale, P.A. /// Practice Pointer: Keep Your Eye On the Ball

Jeffrey P. Gale, P.A. — Tue, 18 Mar 2025 21:37:28 GMT

Everyone is familiar with the idiom, “Keep your eye on the ball.” What it means, quite simply, is to keep one’s attention focused on the matter at hand. Lawyers must remember this during intense situations.

Last week we experienced just such an intense situation. In a case involving severe personal injuries sustained by our client, we attended a hearing on the Defendant’s motion for summary judgment. The corporate defendant was asking the court to enter a judgment that it was not vicariously liable for the negligence of its agent. In other words, Defendant was asking the court to throw out the case against it. Serious stuff.

Defendant’s motion was brought under Florida Rule of Civil Procedure 1.510, which reads in pertinent part as follows:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (bold added for emphasis).

The burden is on the moving party (in our case, the Defendant) to demonstrate the absence of genuine material facts, that no material issues remain for trial, and that the movant is entitled to judgment as a matter of law. See, Florida Rule of Civil Procedure 1.510(a). “An issue is genuine if ‘a reasonable trier of fact could return judgment for the non-moving party,’ and ‘[a] fact is material if it might affect the outcome of the suit under the governing law.’” Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11^th Cir. 2008) and Anderson v. Liberty Lobby, Inc., 477 U.S. 22, 247-48 (1986).

In considering a motion for summary judgment, the trial court views the facts in the light most favorable to the non-moving party, draws all reasonable inferences in favor of the non-moving party, and may not weigh evidence or make credibility determinations, which are jury functions, not those of a judge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Lewis v. City of Union City, Ga., 934 F.3d 1169, 1179 (11^th Cir. 2019) and Feliciano v. City of Miami Beach, 707 F. 3d 1244, 1252 (11^th Cir. 2013). Accord, Holl v. Talcott, supra; Piedra v. City of North Bay Village, supra; Villanueva v. Reynolds, Smith and Hills, Inc., 159 So. 3d 200 (Fla. 5^th DCA 2015); Rocamonde v. Marshalls of MA, Inc., 56 So. 3d 863 (Fla. 3d DCA 2011), and Moore v. Morris, 475 So.2d 666 (Fla. 1985). Further, if more than one inference can be construed from the facts by a reasonable fact finder, and only one of those inferences introduces a genuine issue of material fact, then the trial court should not grant summary judgment. Birren, supra; citing, Bannum, Inc. v. City of Ft. Lauderdale, 901 F.2d 989, 996 (11^th Cir.1990).

The bottom line is that summary judgment should be denied if there are genuine issues of material fact. In our case, there were many.

It is easy during hearings to get thrown off track by arguments made by the other side. Think of the proverbial red cape being waived in front of the angered bull. In our hearing, the defense attorney spent a good ten minutes spouting facts he claimed supported his position and the granting of Defendant’s motion for summary judgment. Since we strongly disagreed with his interpretation of the facts and the application of those facts to the law, it would have been easy for us to mistakenly get caught up trying to clean up his mess rather than keep our eye on the ball.

By keeping our eye on the ball, we stayed above the fray. When defending a motion for summary judgment, this is the proper approach. The figurative ball on summary judgment is whether there are genuine issues of material fact. Period. Rather than challenge Defendant head-on, we simply showed the court a whole set of material facts a jury could accept to decide in our favor. It was apparent that the judge had read the Defendant’s Motion for Summary Judgment and Plaintiff’s written response, both of which contained the facts the parties mentioned in the hearing, because his ruling came without hesitation after the lawyers had stopped speaking. He understood from the pleadings that there were genuine issues of material fact.

We knew coming into the hearing that the record contained many genuine issues of material fact. We were hopeful that the judge would see this and follow the law. He did. By keeping our focus on the simple MSJ standard, instead of crawling into the mud to challenge the Defendant’s facts and arguments, we made it simple for the court and avoided ‘snatching defeat from the jaws of victory’ — the subject of a future blawg — by getting off-topic.

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

Jeffrey P. Gale, P.A. /// Scrutinize Workers’ Compensation Carrier’s Paylog to Reduce WC Lien Amount

Jeffrey P. Gale, P.A. — Thu, 09 Jan 2025 22:21:14 GMT

It is not uncommon for an individual hurt in a work-related accident, for which workers’ compensation benefits are due, to also have a liability case against a negligent third party. Where compensation is recovered in both cases, the injured party may have to give some of the third-party recovery to the workers’ compensation insurance carrier to satisfy its workers’ compensation lien. See section 440.39(2), Florida Statutes.

There is a formula, commonly referred to as the Manfredo Formula, used for establishing the amount of the lien recovery. However, before getting to the formula, it is necessary to determine the amount of recoverable expenditures to plug into the formula.

440.39(3)(a) identifies recoverable expenditures:

Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his or her dependents, which notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of this law….

“Compensation” benefits, indemnity or wage loss benefits, are paid in accordance with section 440.15. “Medical benefits” are covered by section 440.13.

In Associated Home Health Agency, Inc. v. Lore, 484 So.2d 1389 (Fla. 4th DCA 1986), the appellate court upheld the trial court’s refusal to include in the amount recoverable under section 440.39, the amount paid by the carrier for rehabilitative services authorized by section 440.49(1)(a) [now, 440.491]. The Court explained:

The vocational rehabilitation of an injured employee, while mutually beneficial to both the employee and the employer, is intended primarily to enhance the wage earning capacity of the injured employee, thereby reducing (if not eliminating) the employee’s wage loss. Thus, rehabilitative services, at least to the extent that such services accomplish this intended purpose, provide a direct monetary benefit to the employer/carrier. Additionally, section 440.39(3)(a) is explicit in granting to the employer/carrier a pro rata recovery (against a judgment or settlement received by the employee against the third party tort-feasor) “for compensation and medical benefits paid or to be paid… .” The expense incurred by the employer in providing to the employee vocational rehabilitation is neither compensation nor medical benefits, each of which is clearly defined in the statute.

Additional benefits falling into this category of excluded expenditures include investigative costs, nurse case management expenses, and vocational rehabilitation expenses.

Other excluded expenses are carrier-paid attorney’s fees and costs. When carriers are forced to pay wrongly denied benefits, they must pay the claimant’s attorney’s fees and costs. See section 440.34(3). These fees and costs are not compensation or medical benefits and to allow the carrier to recoup some of the money would be against public policy. In contrast, carriers can recover under 440.39 for fees and costs claimants pay to their attorneys. The fees and costs are typically paid in conjunction with the settlement of the workers’ compensation case and are based on private attorney/client compensation agreements. Washout settlements of this nature are essentially considered the payment, in the form of a lump sum, of compensation and medical benefits, hence, the reason why the claimant-paid fee can be applied to the carrier’s lien.

This blog illustrates why it is important to carefully study the carrier’s paylog to filter out inapplicable payments. Carriers will not do the job for claimants’ attorneys and will laugh all the way to the bank if they make a windfall recovery.

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

Jeffrey P. Gale, P.A. // Releasing Active Tortfeasors Does Not Release Vicariously Liable Tortfeasors

Jeffrey P. Gale, P.A. — Wed, 28 Aug 2024 20:05:21 GMT

Active tortfeasors become legally liable for engaging in negligent conduct. Passive tortfeasors become liable for the negligent conduct of active tortfeasors through the legal principle known as vicarious liability. Examples include owners of motor vehicles whose permissive drivers cause crashes and employers for the acts of their employees.

Nowadays, active tortfeasors can be released from cases, even before a lawsuit is brought, without sacrificing the case against the passive tortfeasors. It wasn’t always this way in Florida.

Common law used to reason that settling with the active tortfeasor discharged the liability of the passive tortfeasor. “At common law and before the enactment of statutes to the contrary, a release of one joint tortfeasor released the other, Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914).” Safecare Health Corp. v. Rimer, 620 So. 2d 161, 164 (Fla. 1993)(McDonald, J. dissenting).

In modern times, at least, the Florida Legislature has, for the most part, not been friendly to Plaintiffs. It has crafted statutes making it harder to gain access to the courthouse and to obtain just compensation for serious injuries once inside. An exception to this history concerns statutory changes that paved the way to the present state of the law regarding settlements with active tortfeasors.

The first statutory change was enacted in 1957. It provided that

A release or covenant not to sue as to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.

In Hertz Corp. v Hellens, 140 So. 2d 73 (Fla. 2d DCA 1962), the court interpreted the statute as applying “to all tort-feasors, whether joint or several, including vicarious tortfeasors.”

Subsequent Florida statutes — 46.015, 768.041, and 768.31 — and case law — e.g., Stephen Bodzo Realty, Inc. v. Willits International Corp., 428 So. 2d 225 (Fla. 1983), Florida TomatoPackers, Inc. v. Wilson, 296 So. 2d 536, 538 (Fla. 3d DCA 1974), JFK Medical Center, Inc. v. Price, 647 So. 2d 833 (Fla. 1994), Crosby v. Jones, 705 So. 2d 1356, (Fla. 1998) — have brought us to the present state where it is safe to settle with, and dismiss, actively liable tortfeasors. However, while this may be true, caution must still be exercised with the settlement release.

First and foremost, avoid any language that could be construed as releasing other defendants, including vicariously liable tortfeasors. As further protection, add language to the release making it clear that it does not apply to any other defendants including but not limited to vicariously liable defendants.

Advantages of settling with the active tortfeasor include gaining access to funds and, in some instances, getting the active tortfeasor to feel friendlier to the plaintiff’s side.

Another landmine to avoid is a general release of insurance carriers. It is not unusual for the same carrier to insure more than one defendant either on a different policy or on the same policy, or even the plaintiff’s personal UM or PIP policy with coverage responsibility in the case. Giving a general release without clarifying that the release is only in the carrier’s capacity as the liability insurer for the active tortfeasor, might result in the loss of important funding sources.

Also, be careful of indemnification and hold harmless provisions in releases. Passive defendants have the right to recover from active tortfeasors for payments they have made as a result of their vicarious liability. An agreement to indemnify the settling tortfeasor for such a claim would effectively mean that the plaintiff must give the active defendant the money it got from the vicarious defendant. Here’s how that would work: Plaintiff receives X dollars from vicarious Defendant A. Vicarious Defendant A then pursues an indemnity claim against active Defendant B. Active Defendant B then demands from Plaintiff, under the indemnity provision of the release, the money it paid to Defendant A.

Needless to say, this scenario can be problematic, even a deal breaker.

Indemnification and hold harmless provisions can also involve liens held by entities such as Medicare, Medicaid, and health insurance carriers. Typically, such entities are entitled by law or contract to recover from third-party settlements some or all of the benefits they have paid on behalf of the plaintiff. In some instances, they can even go after defendants who have failed to protect their lien rights.

For the most part, since repayment amounts on these liens can be determined or resolved before or in connection with settlement or verdict, these provisions are not problematic.

Finally, avoid the pitfall experienced in Connecticut General Life Ins. Co. v Dyess, 569 So. 2d 1293 (Fla. 5th DCA 1999). A settling plaintiff lost out on first party insurance benefits by failing to include language in the release that the settlement did not cover all of his damages.

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Jeffrey P. Gale, P.A. // Comparative Fault Not Part of Manfredo Formula Equation

Jeffrey P. Gale, P.A. — Sun, 21 Jul 2024 23:18:24 GMT

Not infrequently, both a workers’ compensation case and a personal injury liability case will arise from the same accident. For example, a construction site supervisor involved in a motor vehicle crash while traveling to Home Depot for supplies can pursue workers’ compensation benefits from the employer and civil liability damages from the at-fault party.

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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Jeffrey P. Gale, P.A. // Republican Legislators Work to Make Florida’s Roadways Less Safe

Jeffrey P. Gale, P.A. — Tue, 16 Apr 2024 17:53:01 GMT

“Sine die,” the dropping of the handkerchief ceremony to signal the end of the legislative session in Florida, could not come soon enough this year for residents hoping for safer roads and highways.

During the 2024 legislative session, which ran from January 9, 2024 to March 8, 2024, Republican legislators proposed a variety of bills that would insulate trucking companies, road contractors, engineers and other contractors from liability when they make Florida’s roadways more dangerous.

Commercial Vehicles Penske Corporation, Inc., one of the largest trucking rental companies in the nation, backed legislation that would give vehicle owners, lessors, and operators immunity from liability when those vehicles were not equipped to meet industry safety standards. Florida is not the only state targeted for similar legislation.

Industry safety standards are developed from the practice of customary methods and conduct over time. In many instances, the standards are codified in statutes, regulations, and industry publications, while experts in various fields often testify based on their experience and knowledge. Evidence of violation of industry standards is admissible as non-conclusive evidence of negligence. St. Louis-San Francisco Railway Company v. White, 369 So.2d 1007 (Fla. 1st DCA 1979). See also: St. Louis-San Francisco Railway Company v. Burlison, 262 So.2d 280 (Fla. 1st DCA 1972); Clements v. Boca Aviation, Inc., 444 So.2d 597 (Fla. 4th DCA 1984); Nance v. Winn Dixie Stores, Inc., 436 So.2d 1075 (Fla. 3rd DCA 1983); Reese v. Seaboard Coast Line Railroad Company, 360 So.2d 27 (Fla. 4th DCA 1978).

Sen. Travis Hutson (Palm Coast) and Rep. Randy Maggard (Dade City) sponsored bills lowering the safety standards commercial vehicle owners, lessors, and operators must meet to the requirements of Federal Motor Vehicle Safety Standards (49 CFR 571) — which is only a portion of the federal regulations dealing with motor vehicles and does not include many of the safety standards that have become common industry practice. Under the proposed legislation, Penske and others would be immune from liability by showing mere compliance with 49 CFR 571, despite ignoring a wealth of tried and proven industry standards developed over millions of roadway miles.

Examples of things the bill would allow include:

A trucking company could remove or disable the forward collision warning systems that come standard in trucks, raising the risk of rear-end collisions.
Ignoring safety recalls.

Thankfully, through the efforts of the staff and members of the Florida Justice Association, the bill died.

Unfortunately, like zombies rising from the grave, these bad actors will be back. The war never ends.

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Jeffrey P. Gale, P.A. // Avoiding Workers’ Compensation Immunity by Estoppel — Not So Fast!

Jeffrey P. Gale, P.A. — Mon, 12 Feb 2024 20:24:39 GMT

Florida’s civil liability and workers’ compensation systems handle legal matters for people injured or who have died in accidents. The systems have some similarities and differences. The biggest differences are that the plaintiff must prove fault to recover under civil law, and recoveries for non-economic damages (such as pain and suffering) are not available in workers’ compensation cases. It is not always obvious which remedy route is the best to follow. Most of the time, the aggrieved party does not have a choice.

Employers and fellow-employees are immune from civil lawsuits for work-related accidents. See sections 440.10 and 440.11, Florida Statutes. In other words, the workers’ compensation system is the harmed individual’s exclusive remedy.

Exceptions arise when the employer has failed to secure the payment of workers’ compensation (440.10(1) and 440.11(1)(a)), the employer commits an intentional tort (440.11(1)(b), or the fellow-employee acts with willful and wanton disregard or unprovoked physical aggression or with gross negligence (440.11(1)).

Another exception may apply when 1) the employer makes a representation of a material fact that is contrary to a later-asserted position; 2) the harmed worker relies on that representation; and 3) the worker is damaged by changing his or her position in reliance on said representation. See Specialty Emp. Leasing v. Davis, 737 So. 2d 1170, 1172 (Fla. 1st DCA 1999) (quoting Dep’t of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981)). This exception is known as equitable estoppel.

In McNair v. Dorsey, 291 So.3d 607 (Fla. 1st DCA 2020), McNair was injured while carrying a tree branch to a wood chipper. The employer first asserted that there was “no compensable accident.” In a later pretrial stipulation, the employer claimed that no compensable accident occurred, and took the position that McNair’s accident did not occur within the course and scope of his employment.

After withdrawing his workers’ compensation claim, McNair instituted an action in circuit court alleging negligence on the part of his employer and a fellow-employee. The employer filed a motion for summary judgment alleging that the “accident occurred within the course and scope of [McNair’s] employment,” and that they were therefore entitled to workers’ compensation immunity. McNair argued estoppel. The employer’s motion was granted and the order granting the summary judgment was affirmed on appeal.

The First District Court of Appeal began its analysis by recognizing the applicability of estoppel in workers’ compensation cases:

Florida courts have held that “an employer may be equitably estopped from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim by asserting that the injury did not occur in the course and scope of his or her employment.” Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA 2010) (citing Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)).

The court then proceeded to explain why estoppel did not apply in the case. It did so by distinguishing its facts from those in Byerley v. Citrus Publ’g, 725 So. 2d 1230 (Fla. 5th DCA 1999). It pointed out that Armstrong, the employer, asserted that “no work accident causing injury occurred at all,” id. at 610, while the employer in Byerley claimed that the “injury did not arise out [of] the course and scope of [Byerley’s] employment,” because it occurred after she “clocked out and had exited the building.” Id. at 1231.

After Byerley’s employer claimed that the accident did not happen in the course and scope of his employment, Byerley sued the employer in circuit court alleging negligence. The employer asserted that Byerley’s exclusive remedy was workers’ compensation. The trial court agreed, granting summary judgment in favor of the employer. Finding that the employer’s position created a Hobson’s choice for Byerley, the appellate court reversed the lower court’s ruling:

We think it would be inequitable for an employer to deny worker’s compensation coverage on the ground that the employee’s injury did not arise out of the course and scope of employment, then later claim immunity from a tort suit on the ground that the injury did arise out of the course and scope of employment. This argument, if accepted, would eviscerate the Workers’ Compensation Act and allow employers to avoid all liability for employee job related injuries.

By making a representation of a material fact that is contrary to a later-asserted position, the employer in Byerley met the first prong of the equitable estoppel formula. This is not what happened in McNair. As explained by the court:

McNair’s claimed accident, if it happened as he alleged, certainly occurred in the course and scope of his employment. Armstrong’s claim was that no accident causing injury occurred at all. Either the factfinder would determine that the accident occurred, in which case it was indisputably within the course and scope of employment, or that the accident did not occur, in which case there was no compensable injury.

The McNair court was also guided by Coastal Masonry, Inc. v. Gutierrez, 30 So. 3d 545, 547 (Fla. 3d DCA 2010) (citing Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)). Bayardo Gutierrez (“Gutierrez”) filed a petition seeking workers’ compensation benefits from his employer, Coastal, for injuries sustained while lifting concrete blocks. In response to the petition for benefits, Coastal denied the claim in its entirety including that Gutierrez’s condition “is not the result of an injury by accident arising out of and in the course and scope of employment.” Specifically, the denial of benefits stated:

The carrier has denied the claim in its entirety. The claimant did not report the alleged injury to the employer in a timely manner, as required by F.S. 440.185(1). The present condition of the claimant is not the result of an injury by accident arising out of and in the course and scope of employment. There is no accident or occupational disease. The condition complained of is not the result of an injury, as defined by F.S. 440.02(1). The claimant’s medical condition is the result of a pre-existing condition or disease. The claimant’s medical condition is personal, pre-existing and/or idiopathic in nature.

Following this denial, the claimant instituted a circuit court civil action against the employer sounding in negligence. On summary judgment, the trial court denied the employer’s workers’ compensation immunity affirmative defense. Finding that Coastal, the employer, “has taken inconsistent positions,” The First DCA affirmed the order.

The case law on the subject can be confusing. The denial language used by the employer in McNair is similar to the reasons stated in Byerley and Coastal Masonry. However, the results are very different. It appears that the courts dig behind the language to determine the actual reasons for the denials. Practitioners need to do the same before jumping to the conclusion that estoppel will be deemed.

Equitable estoppel arises infrequently in workers’ compensation cases. It is usually clear whether or not the claimed accident happened in the course and scope of employment, so employers rarely deny for that reason. Second, pursuing a civil remedy may not always be the wisest course of action to follow. In civil cases, the burden is on the plaintiff to prove negligence. In many workplace accidents, nobody is at fault. In workers’ compensation cases, fault does not have to be demonstrated; it’s a no-fault system. Finally, the quality, quantity, and timing of medical and wage loss benefits available through workers’ compensation sometimes surpass those available under the civil system.

The issues discussed in this blog can have substantial consequences. It is strongly recommended that advice of counsel be sought before the issues arise.

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Jeffrey P. Gale, P.A. // Look Past Native Indian Sovereign Immunity for Private Party Personal Injury Liability

Jeffrey P. Gale, P.A. — Sat, 03 Feb 2024 16:46:38 GMT

In Florida, Native American tribes operate popular business establishments. On occasion, patrons frequenting the establishments are hurt by dangerous conditions created through negligence.

The U.S. Constitution (Article I, Section 2, Clause 3; Article I, Section 8; The Fourteenth Amendment), treaties, and laws, authorize Native American tribes to govern themselves as sovereign nations within the United States.

Florida’s personal injury and wrongful death laws hold parties accountable for their negligence. As independent sovereign nations, the tribes are not subject to these laws.

Until 2021, when the Seminole Tribe signed a gaming compact with the state of Florida, the tribe could not be forced to pay any damages to individuals hurt on their property. Under the Compact, the Seminoles agreed to be subject to damage awards capped at $200,000 per individual/$300,000 per claim.

The Seminole’s waiver caps are wholly inadequate to compensate for catastrophic injuries and wrongful death. Most lawyers won’t accept cases against the Seminole Tribe. Even with the waiver, it is not worth the time, effort, and expense. Forget about going against a tribe, like the Miccosukees, who haven’t agreed to a waiver.

Our law firm fits this profile.

However, some accidents occurring on tribe property are caused by entities that do not enjoy the benefit of tribal immunity.

Our law firm recently accepted a case resulting from a dangerous condition on a property owned by one of the tribes. The case had been turned down by a national law firm after it learned where our client was hurt. The firm did not bother to consider other options.

Our investigation determined that a private company, one without tribal immunity, had a contract with the tribe to operate and maintain the property. The company had a duty to keep the property reasonably safe. It may have breached the duty.

We are also trying to determine whether any other non-sovereign companies might be responsible. Renovations were made to the property a few years ago. The dangerous condition was created during the process. We believe that the entity which performed the renovations may have been negligent.

Unfortunately, for whatever inexplicable reason, the county in which the accident happened does not make its building records available online. This has forced us to make a formal public records request for the documents to complete our investigation.

The state of Florida and its subdivisions also enjoy sovereign immunity protections. However, unlike the immunity extended to Native American tribes, which is based on the noble and appropriate concept of them being sovereign nations, the sovereign immunity extended to the state of Florida is based on the antiquated and anti-American concept of, “The King can do no wrong.“

Section 13, Art. X of the The Florida Constitution authorizes the Florida Legislature to make laws for bringing suit against the state. The current law on the subject, s. 769.28, Florida Statutes, provides in pertinent part as follows:

Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $300,000.

This is similar to the agreement the Seminole Tribe made in the gaming contract with the state of Florida. The numbers are woefully inadequate to compensate for catastrophic injuries or wrongful death. For this reason, most lawyers don’t sue the state.

However, like in cases involving Native American tribes, there may be a way to circumvent the immunity by identifying a responsible private party.

Section 768.28(9)(a), Florida Statutes provides for sovereign immunity from tort actions for any “officer, employee, or agent of the state or of any of its subdivisions.” “Thus, limited sovereign immunity is available for private parties involved in contractual relationships with the state if those parties are determined to be acting as agents of the state.” G4s Secure Solutions, 210 So. 3d 92, 94 (Fla. 2nd DCA 2016), citing Plancher v. UCF Athletics Ass’n, 175 So.3d 724, 726 (Fla.2015). “The determinative factor is the degree of control retained or exercised by the state agency.” G4s Secure Solutions, 210 So. 3d at 94, citing Plancher, 175 So. 3d at 728 and Stoll v. Noel, 694 So. 2d 701, 703 (Fla. 1997). The determination is highly fact-specific.

CONCLUSION: In cases involving Native American tribes or the state of Florida, efforts should be made to identify the party directly responsible for causing the harm.

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Jeffrey P. Gale, P.A. // Abuse of Power

Jeffrey P. Gale, P.A. — Sun, 28 Jan 2024 16:39:30 GMT

Republicans control all phases of lawmaking at the state level in Florida. This has been the case since the election of Jeb Bush as governor in 1998, complementing their majorities in the Florida House and Senate.

Presently, they rule by supermajority in the Legislature, meaning they don’t have to negotiate with members of other parties to pass legislation. With the encouragement of current governor Ron DeSantis, they have been wont to stoke the flames of culture wars by enacting draconian laws such as those banning books and hurting the LGBTQ community.

While their culture war laws get the headlines, Republicans also work in quieter ways to undermine the fabric of American society. One of their favorite tricks is to weaken the rights of individuals to seek redress within the legal system.

Last legislative session they passed bills reducing the statute of limitations in personal injury cases from four years to two years and barring all personal injury claims where the injured party is more than 50% at fault, even just 51% (768.81(6)).

This latter measure may appear reasonable on its face to the uninitiated, but it is not. In years past damage awards were apportioned by percentage of fault through a legal principle known as comparative fault. For example, if a person who was 51% at fault was awarded $1,000,000 in damages by a jury, the court would reduce that person’s share of the award to $490,000. Under the legislation passed in 2023, that same person would walk away with nothing even if another party was 49% at fault.

During this year’s legislative session, which is currently underway, Republicans are seeking to establish arbitrary damage caps in medical malpractice cases. Regardless of what a jury may decide a case is worth after receiving and deliberating the evidence, judges will be forced to reduce verdicts exceeding the cap. The proposed legislation is CS/SB 248: Medical Negligence.

It matters not to this crop of Republican legislators that a similar damage cap statute was ruled unconstitutional in the past by the Florida Supreme Court. Cynically, they are expecting the current Florida Supreme Court, made up mostly of Rick Scott and Ron DeSantis nominees, to ignore precedent and uphold the new legislation. Sadly, they have a recent example to go by to believe that a Republican majority court will reverse the decision of its predecessor members. The example is Dobbs v. Jackson Women’s Health Organization, the 2022 United States Supreme Court abortion decision which overruled 50 years of precedent.

McCall v. United States of America, 134 So. 3d 894 (Fla. 2014), was a case involving a military veteran whose death was caused by medical negligence. The jury’s award was reduced to comply with the damage caps. The Florida Supreme Court decided that the damage caps were unconstitutional.

Then, as now, the Florida Legislature attempted to justify the cap on noneconomic damages by claiming that “Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude.” Ch.2003-416, § 1, Laws of Fla., at 4035.

As explained by the court majority, “the Legislature relied heavily on a report prepared by the Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force), which concluded that ‘actual and potential jury awards of noneconomic damages (such as pain and suffering) are a key factor (perhaps the most important factor) behind the unavailability and un-affordability of medical malpractice insurance in Florida.’ Report of Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force Report) (Jan. 29, 2003), at xvii.” McCall at 906.

Problem is, the Task Force Report did not hold water. As Justice Lewis explains:

Our consideration of the factors and circumstances involved demonstrates that the conclusions reached by the Florida Legislature as to the existence of a medical malpractice crisis are not fully supported by available data. Instead, the alleged interest of health care being unavailable is completely undermined by authoritative government reports. Those government reports have indicated that the numbers of physicians in both metropolitan and non-metropolitan areas have increased. For example, in a 2003 report, the United States General Accounting Office found that from 1991 to 2001, Florida’s physician supply per 100,000 people grew from 214 to 237 in metropolitan areas and from 98 to 117 in nonmetropolitan areas, or percentage increases of 10.7 and 19, respectively. Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted, No. GAO-04-124, (Oct. 31, 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf. Thus, during this purported crisis, the numbers of physicians in Florida were actually increasing, not decreasing.

Proponents of the legislation now on the table don’t even claim to have a study supporting their position. Despite rationale arguments against the legislation and a stream of sworn testimony from medical malpractice victims, Republicans seem determined to enact the legislation. With super-majorities in both Chambers, and the support of Governor Ron DeSantis, nothing can stop them.

Groups like the Florida Justice Association have gone to the mats fighting the legislation. Florida residents can contact their representatives in Tallahassee to express dispeasure. Follow these links for politician contact information:

While not perfect, the jury system is the best apparatus for resolving disputed civil matters. Strict rules of evidence and sensible guidelines in the form of jury instructions, typically lead to the correct result. Appellate courts are there to scrutinize the process and the results. It’s a beautiful thing. The system does not need arbitrary damage caps, set by politicians sitting in Tallahassee sometimes wrongly influenced by self-interested powerful forces, to subvert the collective wisdom of “We the People.”

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