El representante personal selecciona al abogado que se encargará de la demanda por muerte por negligencia en nombre del patrimonio y de los sobrevivientes. Los acuerdos de honorarios contingentes en estos casos suelen estipular honorarios que oscilan entre el 33⅓% (si se resuelve antes de la demanda) y el 40% (si se resuelve después de presentada y contestada la demanda) del total de la recuperación obtenida para el patrimonio y los sobrevivientes.

En muchos casos, los sobrevivientes están de acuerdo en presentar la demanda por muerte por negligencia y en la distribución de cualquier indemnización. Cuando sus intereses coinciden, esta estructura funciona sin problemas y un solo abogado puede representar adecuadamente a todo el grupo. Esto suele ocurrir, por ejemplo, cuando un cónyuge y los hijos menores presentan una demanda derivada de la muerte por negligencia de uno de los padres.

Sin embargo, cuando los sobrevivientes no tienen intereses comunes, pueden surgir conflictos con respecto a la estrategia del caso, el acuerdo, la distribución de la indemnización y los honorarios de los abogados. Si bien la demanda debe presentarse a nombre del representante personal, cada sobreviviente conserva el derecho a ser representado por un abogado de su elección. Cuando un sobreviviente contrata a un abogado por separado, esa persona necesariamente celebra un acuerdo de honorarios contingentes por separado, generalmente entre el 33⅓% y el 40%, con su propio abogado.

Esto plantea una pregunta importante: ¿debe un sobreviviente representado por un abogado por separado pagar dos honorarios contingentes completos? La respuesta es inequívocamente no.

La Regla 4-1.5 de las Reglas que Regulan el Colegio de Abogados de Florida limita el total de honorarios contingentes que una persona puede estar obligada a pagar. Si un sobreviviente se viera obligado a pagar el porcentaje completo según ambos acuerdos de honorarios, la suma total excedería el límite permitido. Por lo tanto, los sobrevivientes representados por abogados diferentes no están obligados a pagar una “doble tarifa”.

En cambio, todos los abogados que representan a los sobrevivientes en el litigio deben ser compensados ​​con una única tarifa contingente permitida, generalmente del 33⅓% al 40% del total de la indemnización. Si los abogados no llegan a un acuerdo sobre la distribución, el tribunal determinará un reparto equitativo. No existe una fórmula fija para la división; el tribunal considerará los servicios prestados y la contribución relativa de cada abogado a la indemnización.

Contáctenos al 305-758-4900 o por correo electrónico para conocer sus derechos legales.

Jeffrey P. Gale, P.A. es un bufete de abogados con sede en el sur de Florida, comprometido con el sistema judicial y con la representación y la obtención de justicia para las personas: los pobres, los heridos, los olvidados, los que no tienen voz, los indefensos y los desamparados, y con la protección de los derechos de estas personas frente a la opresión corporativa y gubernamental. No representamos a gobiernos, corporaciones ni grandes empresas.

Si bien nuestro objetivo es la pronta resolución de su asunto legal, nuestro enfoque es fundamentalmente diferente. Nuestros clientes son “personas”, no “casos” ni “expedientes”. Nos tomamos el tiempo necesario para establecer una relación con nuestros clientes, conscientes de que solo a través de una interacción significativa podemos satisfacer mejor sus necesidades. De esta manera, hemos podido ayudar de la mejor manera a quienes requieren representación legal.

AVISO LEGAL: Esta información proporcionada por Jeffrey P. Gale, P.A. tiene fines informativos únicamente y está destinada a ser utilizada como una guía no legal antes de consultar con un abogado familiarizado con su situación legal específica. No debe considerarse asesoramiento legal. No se pretende brindar asesoramiento legal de forma expresa ni implícita. Esta información no sustituye el asesoramiento de un abogado. Si necesita asesoramiento legal, debe buscar los servicios de un abogado.

The personal representative selects the attorney who will pursue the wrongful death claim on behalf of the estate and the survivors. Contingency fee agreements in these cases typically provide for fees ranging from 33⅓% (if resolved pre-suit) to 40% (if resolved after suit is filed and answered) of the total recovery obtained for the estate and the survivors.

In many cases, the survivors agree on pursuing the wrongful death claim and on the distribution of any recovery. When their interests align, this structure works smoothly and a single attorney can adequately represent the entire group. This is often true, for example, when a spouse and minor children pursue a claim arising from the wrongful death of a parent.

However, when survivors lack a commonality of interest, conflicts may arise regarding case strategy, settlement, apportionment of damages, and attorneys’ fees. Although the lawsuit must be filed in the name of the personal representative, each survivor retains the right to be represented by counsel of his or her choosing. When a survivor hires separate counsel, that individual necessarily enters into a separate contingency fee agreement—typically between 33⅓% and 40%—with his or her own attorney.

This raises an important question: must a survivor represented by separate counsel pay two full contingency fees? The answer is unequivocally no.

Rule 4-1.5, Rules Regulating The Florida Bar, limits the total contingent fee an individual may be required to pay. If a survivor were forced to pay the full percentage under both fee agreements, the combined amount would exceed the permissible limit. Accordingly, survivors represented by separate counsel are not required to pay a “double fee.”

Instead, all attorneys representing survivors in the action must be compensated out of the single allowable contingent fee—generally 33⅓% to 40% of the total recovery. If the attorneys cannot agree on an allocation, the court will determine a fair apportionment. There is no fixed formula for the division; rather, the court will consider the services performed and the relative contributions of each attorney to the recovery.

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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.

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

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

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

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

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

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

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

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

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

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

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

When a person’s death is caused by the wrongful act, negligence, default, or breach of contract or warranty by another individual or company—including incidents occurring on navigable waters—Florida law determines who may be entitled to compensation. These legal rights and procedures are governed by statute, specifically the Florida Wrongful Death Act, found in Sections 768.16 through 768.26 of the Florida Statutes. The section addressing damages is Section 768.21.

Wrongful death claims are filed through the decedent’s estate by a court-appointed Personal Representative, who brings the claim on behalf of the individuals entitled to compensation. In many cases, the Personal Representative is a surviving family member who is also eligible to receive damages. The Personal Representative retains the attorney to pursue the claim.

Under the Florida Wrongful Death Act, individuals entitled to damages are referred to as “survivors.” In addition, the Estate itself may recover damages under certain conditions.

Determining who qualifies as a survivor and what types of damages may be recovered involves multiple factual variables and is not governed by a simple formula. Below is an outline of common scenarios and the types of damages that may be awarded under each:

SCENARIO 1: Decedent is Married – No Surviving Children

Surviving Spouse May Recover:

• Loss of decedent’s companionship and protection
• Mental pain and suffering (from the date of injury)
• Loss of support and services (from the date of injury to the date of death, with interest)
• Future loss of support and services (from the date of death, reduced to present value)
• Medical and funeral expenses paid by the survivor

SCENARIO 2: Decedent is Married – With Surviving Children

Surviving Spouse May Recover (same as above):

• Loss of decedent’s companionship and protection
• Mental pain and suffering
• Loss and future loss of support and services
• Medical and funeral expenses (if paid by the spouse)

Surviving Children May Recover:

• Loss of support and services (past and future, as above)
• Minor children (under age 25, per §768.18(2))—or all children if there is no surviving spouse—may also recover:
  • Loss of parental companionship, instruction, and guidance
  • Mental pain and suffering (from the date of injury)

SCENARIO 3: Parent Dies – Surviving Children, No Surviving Spouse

All Surviving Children May Recover:

• Loss of support and services (past and future)
• Loss of parental companionship, instruction, and guidance
• Mental pain and suffering (from the date of injury)

SCENARIO 4: Child Dies – Surviving Parents, No Spouse or Children

For a Deceased Minor Child:

• Mental pain and suffering (from the date of injury)
• Medical and funeral expenses (if paid by the parents)

For a Deceased Adult Child (Only if No Other Survivors Exist):

• Mental pain and suffering
• Loss of support and services (past and future)
• Medical and funeral expenses (if paid by the parents)

Damages Recoverable by the Personal Representative (on Behalf of the Estate)

• Loss of earnings from the date of injury to the date of death (minus support provided to survivors, excluding contributions in kind), with interest
• Loss of prospective net accumulations to the estate (if reasonably expected but for the death), reduced to present value
  • Available if:
    • There is a surviving spouse or child, or
    • The decedent was not a minor (under age 25), no support damages are recoverable, and a parent survives
• Medical or funeral expenses charged to the estate or paid on behalf of the decedent (unless already claimed by a survivor)

Important Exceptions in Medical Malpractice Cases

• Adult children cannot recover for loss of parental companionship in medical malpractice claims
• Parents of a deceased adult child cannot recover for mental pain and suffering in such cases

If you, like many, question the fairness of these exceptions, consider contacting your state legislators to advocate for change.

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

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

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

Statute of Limitations

Under Section 95.11(4)(d), a wrongful death action must generally be filed within two years of the date of death. However, if the death resulted from medical malpractice, Section 95.11(4)(b) may allow for an extension of that deadline.
(For more details, see our related post: “The Statute of Limitations (SOL) Under Florida’s Wrongful Death Act.”)

Proper Court and Venue

Wrongful death claims in Florida are usually brought in state circuit courts. Venue is governed by Section 47.011, which generally requires that lawsuits be filed in the county where the defendant resides or where the cause of action arose. If the defendant is a nonresident and has no presence in Florida, the case may need to be filed in federal court.

Who Can File the Lawsuit (Plaintiff)

A wrongful death lawsuit must be filed by a court-appointed personal representative (PR) on behalf of the decedent’s legally defined “survivors.” Often, the PR is a close family member, such as an adult child or parent. In cases involving minor children or legally incapacitated individuals, the court may also appoint a guardian ad litem.
(For a detailed outline of who qualifies as a “survivor,” see our companion blog post.)

Who Can Be Sued (Defendant)

Defendants in wrongful death actions include any individuals or entities alleged to have caused the death through their negligence or misconduct.

Available Damages

The Florida Wrongful Death Act allows survivors to seek monetary compensation for a variety of losses, including:

• Mental pain and suffering
• Loss of companionship and protection
• Past and future loss of financial support and services
• Medical and funeral expenses

These damages are meant to compensate survivors and hold at-fault parties accountable under civil law.
(See our blog on available damages for a more comprehensive breakdown.)

Pretrial and Settlement

Wrongful death claims can be settled at any stage, including before a lawsuit is filed. Many cases are resolved during litigation, but before trial. Others are dismissed by the court, while some proceed all the way to verdict.

Trial Process

Most wrongful death trials are decided by a jury, though the parties may agree to have a judge serve as the fact-finder. While judges rule on legal matters, juries are responsible for determining the facts and awarding damages, if appropriate.

Appeals and Post-Trial Options

Both jury verdicts and judicial rulings can be challenged through the appeals process. The possibility of appeal often plays a role in encouraging post-trial settlement negotiations.

Final Thoughts

Wrongful death cases are among the most emotionally charged and legally complex matters in civil litigation. Due to the high stakes involved—both financially and personally—it is crucial that such claims be handled by experienced and highly competent legal counsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Medicare pays medical expenses while both medical and indemnity (money) benefits are paid by the employer and its insurance carrier in Florida workers’ compensation cases. Each type is often paid in association with cases where the victim ends up dying.

42 CFR sec. 411.24 sets forth Medicare’s lien rights. Section 440.39, Florida Statutes covers the employer/carrier’s lien rights in workers’ compensation cases.

Section 786.21 of Florida’s Wrongful Death Act defines the type of benefits available in civil law wrongful death cases. Section 440.16 does this in the context of workers’ compensation cases. In some instances, a recovery under both laws is available for the same accident.

Under the Wrongful Death Act, the decedent’s estate and his or her survivors, as defined in section 768.18, may be compensated for various forms of damages. The estate’s recovery can be for non-economic damages such as medical expenses and loss of net accumulations, while survivors may recover non-economic damages such as loss of companionship, loss of protection, and mental pain and suffering.

The workers’ compensation death benefit available under section 440.16 is limited to $150,000 payable to the surviving spouse and dependent children in increments.

Medicare’s lien attachment is limited to the settlement or judgment proceeds recovered by the estate. It is not entitled to recover from the non-economic damages received by the survivors. Bradley vs. Sebelius, 621 F.3d 1330 (11^th Cir. 2010).

In contrast, even though it can be argued that the death benefit paid or payable to the spouse and dependents under 440.16 resembles non-economic damages, 440.39 nevertheless allows the employer and its workers’ compensation insurance carrier to recover up to the full amount paid. In pertinent part, subsection (2) provides as follows:

If the employee or his or her dependents [bold added] accept compensation or other benefits under this law or begin proceedings therefor, 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 [bold added] against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid as provided by subsection (3). If the injured employee or his or her dependents [bold added] recovers from a third-party tortfeasor by judgment or settlement, either before or after the filing of suit, before the employee has accepted compensation or other benefits under this chapter or before the employee has filed a written claim for compensation benefits, the amount recovered from the tortfeasor shall be set off against any compensation benefits other than for remedial care, treatment and attendance as well as rehabilitative services payable under this chapter.

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

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

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

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

Sovereign Immunity is a legal concept applied in monarchies and constitutional monarchies such as the United Kingdom, Japan, Jordan, and the Netherlands, to make the sovereign or state immune from civil suit or criminal prosecution. It is derived from the Latin maxim Rex non potest peccare, meaning “the king can do no wrong.” Florida has enacted a modified version of sovereign immunity in the area of civil law involving personal injuries and wrongful death.

Under Florida civil law, people and companies who are not protected by sovereign immunity can be held accountable up to the full measure of the damages caused by their negligence. Those damages can include pain and suffering, medical expenses, and loss of income. In cases involving serious injuries or the loss of life, the full measure of damages can be in the millions.

Florida’s sovereign immunity law limits the amount of compensation the sovereign can be compelled to pay. Under section 768.28(5)(a), Florida Statutes, the sovereign, described as “the state and its agencies and subdivisions,” is limited to paying $200,000 per individual, $300,000 per claim. In other words, the most a sovereign will ever have to pay in a single case is $300,000. It does not matter how substantial the actual losses are.

This arbitrary sovereign immunity cap defeats the public policy of encouraging safe conduct.

Because of the cap, most personal injury and wrongful death lawyers refuse to accept cases against sovereign entities. Not only is the potential recovery limited, cap defendants tend to put up the biggest fight since it is taxpayer money rather than their own being used to fund the fight.

Some other reasons why lawyers reject cap cases:

Another important public policy is the principle known as “judicial economy.” Essentially, limiting the use of court resources. The sovereign immunity cap defeats this policy. In non-sovereign cases, the defendant can be motivated to settle for a reasonable sum to avoid the potential of having to pay a significantly higher jury verdict. The sovereign cap eliminates this leverage point. Even in cases with clear fault and damages well in excess of the cap, sovereign defendants almost never offer to settle for the full cap amount. This is because they have nothing to lose and often gain by holding out.

Prosecuting any case to a jury verdict is costly and time-consuming. Where the potential recovery is capped no matter what the jury says, it quickly reaches the point where continuing to push forward does not make sense. The sovereign knows this, so it holds out. Even if a jury awards ten or even a hundred times more than the cap, the sovereign cannot be compelled to pay a penny more than the cap amount.

Not even a successful demand for judgment can result in the cap being breached. Under section 768.79, Florida Statutes, a plaintiff can recover attorney’s fees and costs from a defendant if the plaintiff recovers a judgment in an amount at least 25% greater than a settlement offer served in accordance with the statute. In some instances, those fees and costs can amount to hundreds of thousands of dollars. The purpose of the statute is to encourage settlements. The statute works exceedingly well in non-cap cases. In cap cases, it is virtually meaningless. Not even an award under 768.79 can force the sovereign to pay more than the cap amount. If, for example, the jury verdict is $2,000,000 and the 768.79 award is $350,000, the most the sovereign has to pay is $200,000 to any one person and no more than $300,000 if more than one person is involved.

Interestingly, the sovereign immunity cap does not apply in workers’ compensation cases. The sovereign can be held to full account for the benefits available under the workers’ compensation system. However, it should be noted that non-economic damages such as pain and suffering are not available in workers’ compensation cases. This is often the largest damage element of a personal injury or wrongful death case. Nevertheless, the sovereign’s exposure in a workers’ compensation case can be sizeable, well above $300,000.

The sovereign immunity cap has worn out its usefulness, if it ever had any to begin with, in America’s jurisprudential system — Florida is not the only state to employ the concept. It is time for the antiquated concept to be relegated to the dustbin of history.

With all of this said, anyone harmed through the negligence of a sovereign should consult with a lawyer to learn his or her rights. We are in suit now against a non-cap surgeon and the sovereign hospital in which the surgeon caused significant harm to our client performing surgery in the hospital. (We only decided to sue the sovereign because the action is ancillary to our case against the non-sovereign doctor. We would not have filed suit against the sovereign alone.)

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

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

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

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

DUTY: “Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” See Kaisner v Kolb, 543 So.2d 732, 735 (Fla. 1989) (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla. 1983)).

PROXIMATE CAUSE: “The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” McCain v. Florida Power Corporation, 593 So.2d 500, 502 (Fla. 1992).

While the concept of foreseeability can be relevant to both elements, the concept “relates to duty and proximate causation in different ways and to different ends.” Id. at 502. Hence, merging the two elements into a single hybrid foreseeability analysis would be incorrect.

Duty is the key that opens the courthouse doors. It is the job of the judge, rather than the jury, to decide if it exists. For this reason, establishing duty is considered a matter of law vs a question of fact. (On this issue in McCain, in footnote 1 the court does note that “to determine this legal question the court must make some inquiry into the factual allegations. The objective, however, is not to resolve the issues of comparative negligence or other specific factual matters relevant to proximate causation, but to determine whether a foreseeable, general zone of risk was created by the defendant’s conduct.”) Once the duty is established, the plaintiff may proceed to prove fault and damages, which are proximate cause factual questions decided by juries turning on the question of foreseeability. “In this context, foreseeability is concerned with the specific, narrow factual details of the case, not with the broader zone of risk the defendant created.” Id at 502-503.

In McCain, the plaintiff was injured when the blades of a mechanical trencher he was operating struck an underground cable owned by Florida Power Corporation (FPC). Before the work commenced, FPC went to the site to mark the location of its underground cables. Plaintiff alleged that the accident happened in an area marked “safe.”

The trial judge decided that FPC owed plaintiff a duty and allowed the case to proceed to trial. The jury rendered a verdict for plaintiff and awarded damages. The Second District Court of Appeal threw out the verdict. The Florida Supreme Court then reversed the Second DCA, noting that the lower court’s analysis was unclear since it opined “that the question of foreseeability is for the trier of fact,” id. at 1271 (citing Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA), review denied, 411 So.2d 380 (Fla. 1981)), while also contradictorily concluding that no duty existed as a matter of law because the specific injury suffered by McCain was not foreseeable.

In other words, the Second DCA merged the two elements — duty and proximate cause — into a single hybrid “foreseeability” analysis.

The Supreme Court pointed out that “the district court below erred in that it confused the duty and proximate causation elements, resulting in a mistaken assumption that Florida Power’s duty was to foresee the specific sequence of events that led to McCain’s injury, in light of the precautionary measures the company already had taken. See McCain, 555 So.2d at 1272 (Threadgill, J., dissenting).” Id at 504. This led to the district court deciding a factual question that should have been left to the jury. The proper inquiry was for the reviewing appellate court to determine “whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.” McCain at 504.

On this point, the Supreme Court decided that, as a matter of law, FPC owed the plaintiff a duty:

Here, there can be no question but that Florida Power had the ability to foresee a zone of risk. By its very nature, power-generating equipment creates a zone of risk that encompasses all persons who foreseeably may come in contact with that equipment. The extensive precautionary measures taken by Florida Power show that it understood or should have understood the extent of the risk involved. The very fact that Florida Power marked the property for McCain itself recognizes that McCain would be within a zone of risk while operating the trencher. Id at 504.

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

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

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

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

In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla. 1979); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla. 1978). Prosser explored this standard of proof as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such 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 north star of the law of causation is the landmark supreme court decision in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984). The Florida Supreme Court described the case as follows:

Emily Gooding, personal representative of Mr. Gooding’s estate, brought a wrongful death action against the hospital alleging negligence by the emergency room staff in not taking an adequate history, in failing to physically examine Mr. Gooding, and in not ordering the laboratory tests necessary to diagnose and treat Mr. Gooding’s abdominal aneurysm before he bled out and went into cardiac arrest. Mrs. Gooding’s expert witness, Dr. Charles Bailey, a cardiologist, testified that the inaction of the emergency room staff violated accepted medical standards [i.e., there was a breach]. Dr. Bailey, however, failed to testify that immediate diagnosis and surgery more likely than not would have enabled Mr. Gooding to survive.

The trial court denied the hospital’s motion for directed verdict on causation. The jury found the hospital liable and awarded damages. The hospital appealed. The First District Court of Appeal reversed on the grounds that the trial court should have directed a verdict in favor of the hospital because Mr. Gooding’s chances of survival under the best of conditions were no more than even. The plaintiff, therefore, could not meet the more likely than not test for causation. The Supreme Court affirmed the DCA on this holding.

What is a directed verdict? A directed verdict is “where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Friedrich v. Fetterman & Assocs., P.A., 137 So.3d 362, 365 (Fla. 2013) (quoting Owens v. Publix Supermkts., Inc., 802 So.2d 315, 315 (Fla. 2001)); see also Cox v. St. Joseph’s Hosp., 71 So.3d 795, 801 (Fla. 2011) (explaining “a directed verdict is appropriate in cases where the plaintiff has failed to provide evidence that the negligent act more likely than not caused the injury”).

The Gooding Rule was applied nearly 40 years later in R.J. Reynolds v. Nelson, 47 Fla. L. Weekly D2436 (Fla. 1st DCA, Nov. 23, 2022), a tobacco case. Reynolds was sued for strict liability and ordinary negligence alleging a design defect of Reynolds’ cigarettes caused Mr. Roosevelt Gordon to develop COPD. (He passed away in 2021, shortly after the jury trial in this case. His daughter, Rosena Nelson, was appointed personal representative of his estate.) As in Gooding, the trial court was reversed on appeal for failing to grant a directed verdict. Citing “the lack of any evidence of Reynolds’ proximate cause of Mr. Gordon’s fatal disease,” the appellate court decided that a directed verdict on both the strict liability claim and the negligence claim should have been granted by the lower court.

Not all proximate cause cases go against the plaintiff. In Aragon v Issa, MD, 103 So.3d 887 (Fla. 4th DCA 2012), the trial judge was reversed for granting a motion for judgment in accordance with the motion for directed verdict against the plaintiff. The appellate court decided that since the plaintiff presented evidence that could support a jury finding that the defendant more likely than not caused the death of Aragon, it was improper for the trial judge, instead of the jury, to weigh conflicting evidence and assess the credibility of the witnesses.

In Claire’s Boutiques v Locastro, 85 So.3d 192 (Fla. 4th DCA 2012), the appeals court decided that the trial court was correct in denying defendant’s motion for directed verdict on proximate cause. The defendant urged that a directed verdict should have been granted since there was insufficient evidence that its actions “caused” the infection and resulting injuries. The court noted:

In negligence cases, like the present one, “Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury.” Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984). If sufficient evidence is offered to meet this standard, the remaining questions of causation are to be resolved by the trier of fact. Wallace v. Dean, 3 So.3d 1035, 1047 n. 18 (Fla. 2009).

Proximate cause does not equal primary cause. In Ruiz v. Tenet Hialeah Healthsystem, Inc., 260 So.3d 977 (Fla. 2018), a medical malpractice wrongful death case, numerous medical providers were sued. Finding that one of the doctors did nothing more than place decedent in a position to be injured by the independent actions of third parties — namely, the surgeons — the trial judge granted a directed verdict in the doctor’s favor. Ruiz appealed, and the district court affirmed the trial court’s ruling, concluding that no competent, substantial evidence in the record would allow a reasonable factfinder to conclude Dr. Lorenzo was the “primary cause” of Espinosa’s death. Ruiz v. Tenet Hialeah Healthsys., 224 So.3d 828, 830 (Fla. 3d DCA 2017). The Supreme Court reversed.

Since the ruling below involved a directed verdict, the Supreme Court framed the issue as follows:

[W]hether there was competent, substantial evidence in the record which would permit a reasonable factfinder to conclude that Dr. Lorenzo, more likely than not, proximately caused Espinosa’s death.

With supporting citations, the Court explained 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.” As an example, it pointed to Sardell v. Malanio, 202 So.2d 746, 746-47 (Fla. 1967), a case in which the Court held that a young boy who threw a football to his friend could be held to have proximately caused the injuries sustained by a passerby with whom his friend collided as he tried to catch the ball. It rejected the district court’s reasoning in Sardell that the boy who threw the ball had no physical control over the pass catcher and had no reason to expect the collision with the plaintiff, so that boy’s act of throwing the football could not be the proximate cause of the plaintiff’s injuries. Id. at 747 (quoting Sardell v. Malanio, 189 So.2d 393, 394 (Fla. 3d DCA 1966)).

The Court concluded its opinion as follows:

Our precedent makes clear that Dr. Lorenzo cannot prevent Ruiz from establishing proximate cause merely by showing his actions or omissions were not the primary cause of Espinosa’s death. Instead, to foreclose liability on the grounds of causation, Dr. Lorenzo’s acts or omissions must not have substantially contributed to Espinosa’s death as part of a natural and continuous sequence of events which brought about that result. See McCain, 593 So.2d at 502-03; Gooding, 445 So.2d at 1018. To obtain a directed verdict on this basis, Dr. Lorenzo must show there is no competent, substantial evidence in the record which would permit a reasonable factfinder to reach such a conclusion at all. See Friedrich, 137 So.3d at 365; Cox, 71 So.3d at 801.

Interestingly, proximate cause is always applicable in workers’ compensation cases:

The established rule in workers’ compensation is that a causal relationship between an employee’s injury and the industrial accident must be shown by competent substantial evidence. § 440.02(1) & (17), Fla. Stat. (1991) (defining “accident” and “injury,” respectively); Gator Industries, Inc. v. Neus, 585 So.2d 1174 (Fla. 1st DCA 1991); Stephens Trucking Co. v. Bibbs, 569 So.2d 490 (Fla. 1st DCA 1990).

In Escambia County Board of County Commissioners v. Reeder, 648 So.2d 222 (1994), the claimant, who was hurt when he was thrown from a bulldozer that rolled over, used the rule to defeat the employer/carrier’s efforts at reducing his compensation by 25% pursuant to section 440.09(5), Florida Statutes, which reads as follows:

If injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statute or lawfully adopted by the department, and brought prior to the accident to the employee’s knowledge, or if injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer, the compensation as provided in this chapter shall be reduced 25 percent.

The bulldozer was equipped with a safety belt but not a shoulder harness. Claimant, who had been advised to wear the safety belt, was not wearing the belt at the time of the accident. He asserted that, in order to reduce his compensation, E/C must prove a causal connection between his failure to wear the safety belt and his injuries. The judge of compensation claims (JCC) agreed and after taking evidence on the issue, ruled that although Claimant had been aware of and had knowingly disregarded Employer’s valid safety rule, the proof was insufficient to establish the requisite causal connection (between the injury and the failure to wear a safety device) that would justify Employer’s taking a statutory 25 percent reduction in Claimant’s indemnity benefits. The JCC’s ruling was affirmed on appeal.

Like a football receiver taking his eye off the ball in the heat of the moment or a tennis player forgetting the importance of sound footwork, in complex cases, especially, lawyers sometimes lose sight of the fundamentals. Fundamentals always matter. In personal injury cases, proximate cause is a fundamental.

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

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

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

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

What has come to be known as the “Impact Rule” requires that “before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.'” See Southern Baptist Hosp. of Fla. v. Welker, 908 So.2d 317 (Fla.2005).

The rule is applied in common law personal injury cases and in workers’ compensation cases.

Limited exceptions to the Impact Rule apply in both fields. The common law exceptions have been created by the Florida Supreme Court. See, e.g., Eastern Airlines, Inc. v. King, 557 So.2d 574 (Fla.1990) (recognizing the tort of intentional infliction of emotional distress absent impact); Champion v. Gray, 478 So.2d 17 (Fla.1985) (allowing recovery where plaintiff is in the “sensory perception” of physical injuries sustained by a close family member); Kush v. Lloyd, 616 So.2d 415 (Fla.1992) (finding rule inapplicable to actions for wrongful birth); Tanner v. Hartog, 696 So.2d 705 (Fla.1997) (impact rule does not preclude recovery of non-economic damages for parents of stillborn child); Gracey v. Eaker (impact rule inapplicable for breach of statutory duty of confidentiality to patient); Rowell v. Holt, 850 So.2d 474 (Fla.2003) (impact rule does not preclude recovery for psychological injury due to attorney’s negligence).

In short, “[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.” Id. at 478.

Compare these close-call cases: R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla. 1995) (impact rule applies to negligent HIV diagnosis without physical damage), Woodard v. Jupiter Christian School, Inc., 913 So.2d 1188 (Fla. 2005) (impact rule applies to outing student’s homosexuality).

Since workers’ compensation is a creature of statute — see Chapter 440 — it has been the role of the Florida Legislature to decide how mental and nervous injuries will be handled in workers’ compensation cases. The general rule regarding these injuries is addressed in Florida Statute 440.093. The statute mirrors the Impact Rule.

The sole exceptions to the Impact Rule in workers’ compensation cases are contained in sections 112.1815(2)(a)3 and (5) of the Florida Statutes. The exceptions apply exclusively to firefighters, paramedics, emergency medical technicians, and law enforcement officers, defined in subsection (1) as “first responders.” All other injured workers are subject to 440.093.

Generally, workers injured on the job are eligible for medical and indemnity benefits. While 440.093 precludes both for a mental or nervous injury due to stress, fright, or excitement only, the exception in section 112.1815(2)(a)3 allows for medical benefits. The exception does not allow for indemnity benefits.

Interestingly, 112.1815(5) allows first responders to recover both medical and indemnity benefits for posttraumatic stress disorder (PTSD) if caused by particularized circumstances listed in the statute.

The Impact Rule may seem unfair. Some people legitimately experience mental and nervous issues from little to no physical trauma. However, the reasoning behind the rule is sound: the requirement of a physical impact gives courts a guarantee that an injury to a plaintiff is genuine. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 363 (5th ed. 1984).

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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.

Florida’s workers’ compensation laws do not allow for the recovery of noneconomic damages such as pain and suffering. Workers’ compensation covers only authorized medical expenses and a defined period of lost wages. Noneconomic damages are not allowed. Civil remedy damages include economic damages such as medical expenses and lost wages as well as noneconomic damages.

Florida Statute 440.11 provides immunity to employers and their employees from civil remedy actions. There are exceptions to this rule. The exceptions are outlined in 440.11. The employer loses its immunity if it fails to maintain the workers’ compensation security required by Chapter 440 or commits an intentional tort. Section 440.11(1)(b) describes the fellow-employee exceptions:

Fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment. (Italics added.)

In Moradiellos v Gerelco Traffic Controls, Inc., 176 So.3d 329 (Fla. 3rd DCA 2015), Mr. Moradiellos was killed in a construction site incident caused by the negligence of a subcontractor’s employee. Employees of construction subcontractors typically also get the 440.11 workers’ compensation immunity. The decedent was employed by the general contractor.

Moradiellos’s wife and estate brought a civil action for wrongful death damages against the subcontractor’s employee under the unrelated works exception. Citing language from 440.02, 440.10, and 440.11, the Third DCA ruled against Plaintiff. The court decided that the unrelated works exception applies only to fellow employees of the Claimant’s own employer. The decision precluded the wrongful death claim based on allegations of simple negligence.

The wife/estate also sought to circumvent workers’ compensation immunity by alleging gross negligence against the sub’s employee. While the court said that Florida law allows claims for gross negligence against subs’ employees, it felt that the conduct in the subject case did not amount to gross negligence.

The ruling limited the wife/estate’s recovery to the benefits available through workers’ compensation. Whereas jury awards for claims made under the Wrongful Death Act can be in the millions of dollars, death benefits under workers’ compensation are limited to $150,000 plus funeral expenses not to exceed $7,500. Section 440.16, Florida Statutes.

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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.

Insurance companies are obligated under Florida law to act in good faith and with due regard for every insured’s interests. Boston Old Colony Insurance Company v. Gutierrez, 386 So.2d 783 (Fla. 1980). Under this duty, carriers must give fair consideration of any settlement opportunity and settle the claim when it can and should do so. Powell v. Prudential Property & Casualty Ins. Co., 584 So. 2d 12, 13 (Fla. 3rd DCA 1991).

In Contreras, a permissive user struck and killed a pedestrian while driving at a high rate of speed after consuming alcohol. Both the owner of the vehicle and the permissive user were covered under a U.S. Security motor vehicle liability insurance policy. Coverage under the policy for wrongful death was limited to $10,000.

The lawyer for the decedent’s estate offered to settle the case for $10,000. U.S. Security sent a letter tendering the policy limit along with a general release form discharging both the vehicle owner and driver. The estate’s lawyer offered to accept the release for the vehicle owner, but not the driver.

After U.S. Security rejected the offer, the estate filed suit against both the owner and the driver. A jury trial resulted in a judgment for compensatory damages against the owner and driver for $1,000,000, as well as a punitive damage judgment against the driver in the amount of $110,000. Thereafter, because neither the owner nor the driver had the financial resources to satisfy the judgment, the estate filed a bad faith claim against U.S. Security and proceeded to trial. The purpose of the action was to collect the excess judgment from the carrier.

At the end of Plaintiff’s case, U.S. Security moved for and was granted a directed verdict. The judge stated as follows:

It [the offer to settle with Dessanti [owner] but not Dale [driver]] immediately places the insurance company then in the Hobson’s choice. If they don’t agree to that, they’re sued for bad faith, and if they do agree to it, they’re sued for bad faith. If they agree to it and cut Dale loose, the Plaintiff simply takes an assignment from Dale. If they don’t agree to it and leave Dessanti in, the Plaintiff simply takes an assignment from Dessanti. The Plaintiff’s protected either way and the insurance company loses either way, and I don’t think that’s the state of the law. By creating it that way, what, in essence, the Court is permitting is it’s letting the Plaintiff dictate whether a bad faith claim arises as opposed to looking at the conduct of the insurance company. It creates an automatic bad faith. Either Dessanti should have been protected and wasn’t, in which case she has a bad faith claim, or Dale is cut loose and the insurance company had a duty to defend him, in which case he has a bad faith claim, and the insurance company is sitting squarely in the middle with no way to turn.

The trial court’s reasoning was reversed on appeal and the case was remanded for a new trial.

The appellate court framed the issue on appeal as, “whether an insurer acts in bad faith in refusing to pay a reasonable settlement demand in order to obtain a release of one of its two insureds, where the claimant refuses to settle with the other insured.” It acknowledged that the issue was one of first impression in the state.

The court analyzed the issue in the context of the common law standard that what constitutes bad faith is whether under all the circumstances an insurer failed to settle a claim against an insured when it had a reasonable opportunity to do so. It relied on the principles set forth in Boston Old Colony to reach its conclusion.

The court agreed that U.S. Security had an obligation to act in good faith towards both of the insureds. However, it concluded that this duty was fulfilled when it attempted, without success, to secure, in exchange for the policy limits, a release for both the owner and the driver. Once its obligation to the driver was met, “U.S. Security thereafter was obligated to take the necessary steps before [the estate’s] offer expired to protect Dessanti [the owner] from what was certain to be a judgment far in excess of her policy limits. Under the terms of its policy, had U.S. Security paid out its limits, its duty to settle or defend would have ceased. See Underwriters Guarantee Ins. Co. v. Nationwide Mut. Fire Ins. Co., 578 So.2d 34 (Fla. 4th DCA 1991).”

Since U.S. Security acted in good faith toward the driver, its exposure in the bad faith case arose solely from its failure to protect the vehicle owner from an excess judgment. This exposure could have been avoided by the simple payment early on of the $10,000 policy limit on behalf of the vehicle owner.

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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.

Our law firm handles both workers’ compensation and personal injury/wrongful death cases. It is not uncommon to have both types of cases arising out of one accident. For example, we represent a gentleman who suffered numerous catastrophic injuries in a motor vehicle crash. Since the accident happened in the course and scope of his employment, he was covered under workers’ compensation. We recently settled the workers’ compensation case. The common law liability case, against the second vehicle’s owner and our client’s co-worker [brought under a theory of gross negligence to overcome workers’ compensation immunity], remains ongoing.

As part of the workers’ compensation mediated settlement, the workers’ compensation carrier agreed that the settlement did not affect the liability case against the third party or the co-worker. Nevertheless, the General Release it submitted to us contained wording that could be construed as preventing our client from proceeding against the co-worker. We have reworded it to avoid this outcome.

This scenario resembles another case presently pending in our office in which we represent a gentleman who lost a leg while operating a lawnmower. We settled his common law liability case against the owner of the lawnmower one week before the workers’ compensation case was settled against the employer. We are now in the paperwork stage of both cases. Even though both cases are settled, we must nevertheless be careful to avoid any language either side might try to use to nullify an agreement. We have not yet received the liability release from the other side. However, this week we received the workers’ compensation General Release and had to modify it to eliminate any construction that could threaten the liability settlement.

Defendants like to use broad release language — not to be confused with confidentiality and hold harmless language, which can be the topic of another blog — in their Releases which often goes beyond the reasonable understanding of the settling parties. In many instances it doesn’t matter. The resolved case is the only possible case that can or will be pursued. However, it is still wise to pair down the wording to reflect the actual settlement. When it does matter, the consequential language cannot be allowed to remain or it must be qualified to limit its scope.

Anyone wishing to discuss these issues or see the language we include in our Releases to protect the rights of our clients, feel free to phone or email.

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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.

In Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977), a car crash victim’s injuries were made worse by the negligence of a treating doctor. The victim was allowed to claim damages for the enhanced injuries from the parties liable for the underlying car crash case.

The main issued addressed in Stuart concerned “the right of a defendant who is the negligent tortfeasor in an automobile accident to bring a third party complaint against the treating physician of the plaintiff for alleged malpractice which aggravated the injuries of the plaintiff.” at 704. In deciding against the right, the Florida Supreme Court explained that “[t]he negligent action of the defendant tortfeasor in the case sub judice was the proximate cause of the plaintiff’s injuries. However, the action of petitioner doctor was in fact an aggravating intervening cause of the ultimate condition of the plaintiff. The parties causing plaintiff’s injuries here were not joint tortfeasors but distinct and independent tortfeasors.” Id. at 705. Because Florida follows the general rule that “where each tortfeasor is chargeable with active or affirmative negligence contributing to the injury for which recovery was had, neither is entitled to indemnity from the other.” 41 Am.Jur.2d Indemnity § 21. See Seaboard Coast Line R. Co. v. Gordon, 328 So.2d 206 (Fla.1st DCA 1976); Armor Elev. Co., Inc. v. Elev. Sales & Serv., Inc., 309 So.2d 44 (Fla.3d DCA 1975); Dura Corp. v. Wallace, 297 So.2d 619 (Fla.3d DCA 1974); General Motors Corp. v. County of Dade, 272 So.2d 192 (Fla.3d DCA 1973); University Plaza Shopping Center, Inc. v. Stewart, supra; Aircraft Taxi Co. v. Perkins, 227 So.2d 722 (Fla.3d DCA 1969); Winn-Dixie Stores, Inc. v. Fellows, supra. Id. at 705.

This does not necessarily mean that the initial tortfeasor does not have a remedy. In Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla. 1980), the Florida Supreme Court addressed the following certified question:

DOES THE DECISION IN STUART V. HERTZ BAR A SEPARATE LAWSUIT BY THE INITIAL TORTFEASOR AGAINST A SUCCESSOR TORTFEASOR WHO AGGRAVATES THE ORIGINAL INJURIES?

The court answered the certified question in the negative, explaining that in order to “preclude a negligent doctor from escaping the responsibilities for his actions,” the remedy of equitable subrogation, which placed the initial tortfeasor in the shoes of the plaintiff, was available. Id. at 704.

In a later decision, the court, in Dade County School Board v. Radio Station WQBA, 731 So.2d 638 (Fla. 1999), expounded on what was required for an initial tortfeasor to assert an equitable subrogation claim:

(1) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights of a third party.

Takeaways:

1. Damages can and must be maximized by accounting for the aggravation of injuries caused by subsequent tortfeasors.
2. Knowing that it may be able to recoup money from the subsequent tortfeasor, the initial tortfeasor may be more generous with settlement money.

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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.