In Estes v. Palm Beach County School District, an opinion issued on March 23, 2026, the First District Court of Appeal fundamentally reshaped the workers’ compensation landscape by redefining the application of the statute of limitations (SOL). The decision benefited Nancy Estes by allowing her to file a benefits claim nearly six months after it would have been barred under the previous interpretation of the law, with an additional eighteen months available had she needed it.

The statute of limitations for workers’ compensation claims is governed by section 440.19 of the Florida Statutes. In 1994, a comprehensive overhaul of Florida’s Workers’ Compensation Law took effect. As part of that reform, the Legislature replaced the statute‑of‑limitations framework in section 440.19(1), Florida Statutes, which had allowed claimants to obtain successive two‑year extensions to pursue benefits. Under that framework, a claim could be filed within 2 years after the date of the last payment of compensation or after the date of the last remedial treatment or rehabilitative services furnished by the employer.

Under this pre-1994 regime, the Florida Supreme Court consistently treated the statutory language as an extension of the statute of limitations as opposed to a suspension of it (citations omitted). Starting in 1994, the Florida Legislature changed the text of the operative statute of limitations provision in § 440.19 from an extension-based regime to a tolling-based one. (In doing so, the Legislature reduced the add-on time from two years to one.) Let’s use the facts in Estes to demonstrate how the two systems differ in application:

The accident occurred on September 30, 2021. The Employer/Carrier (E/C) provided workers’ compensation medical and indemnity benefits to Estes for approximately sixteen months, from October 2021 through January 26, 2023. After that period, the E/C denied further benefits, asserting that the accident was not the major contributing cause of her need for additional treatment or compensation. In June 2024 – approximately seventeen months after receiving her last benefits – Estes filed a petition for benefits (PFB) seeking a one‑time change of orthopedist and other relief. The E/C denied the claims, asserting that the statute of limitations barred them in their entirety. Its analysis relied on principles drawn from the pre‑1994 framework, under which the statute of limitations would have expired on January 26, 2024 – one year after the E/C last provided medical or indemnity benefits. The Judge of Compensation Claims (JCC) accepted the E/C’s position.

Relying on straightforward statutory interpretation – overlooked for decades – the First DCA reversed the JCC by concluding that the 1994 amendment created a suspension‑based statute‑of‑limitations system, replacing the pre‑1994 extension‑based model. Under the 1994 framework, the two‑year statute of limitations was suspended – i.e., tolled – from October 2021 through January 26, 2023, the period during which the E/C was providing workers’ compensation benefits. When benefits ceased, the statute did not simply restart with a one‑year extension, as under the pre‑1994 model. Instead, the claimant received that one‑year extension to January 2024, and only after that extension expired did the remainder of the original two‑year limitations period begin to run. Because only one month had elapsed between the accident and the first provision of benefits, approximately twenty‑three months remained on the primary limitations period. Thus, rather than having only one year from January 2023 to file a claim, Estes had the one‑year extension plus the remaining twenty‑three months – giving her until late December 2025 to bring a claim.

If your claim has been denied on statute of limitations grounds, please contact our office for a free consultation to assess whether the assertion was misplaced.

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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.

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

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

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

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

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

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

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

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

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

Manifestasyon ki pi enpòtan nan kontwòl sa a se dwa legal E/C a pou chwazi doktè otorize pou trete moun ki fè reklamasyon an. An pratik, dinamik sa a souvan lakòz opinyon medikal ki aliyen ak enterè E/C a, souvan nan detriman travayè blese a. Piske doktè sa yo depann sou referans konpayi asirans pou yon gwo pòsyon nan pratik yo, opinyon yo ka—konsyaman oswa otreman—reflete reyalite ekonomik sa a.

Sepandan, nan kèk okazyon limite, doktè ijans lan pèdi kontwòl swen medikal la tanporèman. Senaryo ki pi komen an rive lè moun k ap fè reklamasyon an sibi blesi grav ki mande entène lopital ak operasyon dijans. Nan ka sa yo, chirijyen k ap bay tretman an—sitou yon moun ki gen yon pratik prive—souvan kontinye kòm doktè prensipal la apre moun k ap fè reklamasyon an kite lopital la. Pandan ke doktè sa a pa chwazi pa doktè moun k ap fè reklamasyon an, doktè moun k ap fè reklamasyon an pa chwazi non plis. Malgre sa, kontwòl inisyal doktè ijans lan sou seleksyon doktè a deranje.

Seksyon 440.13(2)(c) nan Lwa Florid yo bay E/C a yon “peryòd tan rezonab” pou bay premye tretman ak swen medikal. Si E/C a pa fè sa, moun k ap fè reklamasyon an “ka jwenn premye tretman sa a sou kont anplwayè a”. Menm lè sa a, sepandan, lwa a pèmèt E/C a reprann kontwòl swen medikal la pita.

Prensip sa a te ilistre nan ka Carmack kont Eta Florid, Depatman Agrikilti, 31 So. 3d 798 (Fla. 1st DCA 2009). La, moun ki te fè reklamasyon an te soufri yon aksidan ki ka resevwa konpansasyon, men Tribinal E/C a te refize otorize tretman sikyatrik ki soti nan blesi fizik nan janm ak nan do moun ki te fè reklamasyon an. Moun ki te fè reklamasyon an te chèche tretman ak yon sikyat poukont li epi li te depoze yon Petisyon pou Benefis pou mande otorizasyon swen nan tan lontan ak nan lavni ak doktè sa a. Jij Reklamasyon Konpansasyon an te bay lòd pou Tribinal E/C a peye pou tretman an jiska dat dènye odyans lan, men li te refize otorize swen kontinyèl ak sikyat moun ki te fè reklamasyon an te chwazi a. Okontrè, yo te pèmèt Tribinal E/C a chwazi yon lòt sikyat. Tribinal Apèl Premye Distri a te konfime sa, sa ki te ranfòse kapasite Tribinal E/C a pou reprann kontwòl sou swen medikal la menm apre yon premye echèk pou otorize tretman.

Seksyon 440.13(2)(f) nan Lwa Florid yo bay sa ki souvan sèl opòtinite enpòtan pou yon moun k ap fè reklamasyon chwazi yon doktè ki pral rete otorize pou lavni. Sepandan, opòtinite sa a rive sèlman lè E/C a komèt yon erè legal. Pati ki enpòtan nan lwa a bay:

Sou demann alekri anplwaye a, konpayi asirans lan dwe bay anplwaye a opòtinite pou chanje doktè yon fwa pandan tretman an pou nenpòt aksidan… Konpayi asirans lan dwe otorize yon lòt doktè ki pa dwe afilye pwofesyonèlman ak ansyen doktè a nan lespas 5 jou apre li fin resevwa demann lan. Si konpayi asirans lan pa bay yon chanjman doktè jan anplwaye a mande a, anplwaye a ka chwazi doktè a epi doktè sa a dwe konsidere kòm otorize si tretman y ap bay la konpanse epi li nesesè medikalman.

Nan ka Zekanovic kont American II, Corp., 208 So. 3d 851 (Fla. 1st DCA 2017), Distri a pa t reponn nan senk jou a demann alekri moun ki te fè reklamasyon an pou yon chanjman doktè yon sèl fwa anba seksyon 440.13(2)(f). Moun ki te fè reklamasyon an te depoze yon Petisyon pou Benefis apre sa pou mande otorizasyon yon doktè espesifik kòm chanjman yon sèl fwa li. Malgre ke JCC a te jwenn ke moun ki te fè reklamasyon an te gen dwa pou chanjman yon sèl fwa a, JCC a te konkli ke paske moun ki te fè reklamasyon an pa t ko jwenn tretman ak doktè li te mande a anvan yo te pase lòd la, Distri a te kenbe dwa pou chwazi doktè ranplasman an. Nan apèl la, Premye Distri a te ranvèse desizyon an, li te deside ke echèk Distri a pou reponn alè te fè li pèdi dwa li pou chwazi doktè a, epi ke moun ki te fè reklamasyon an te gen dwa pou trete ak doktè li te chwazi a.

Nan pratik nou an, nou regilyèman mande chanjman doktè yon sèl fwa. Etandone konsekans enpòtan yon repons ki pa alè—anpalan de pèt kontwòl medikal—E/C a prèske toujou konfòme li nan senk jou legal la epi li kenbe dwa pou chwazi doktè ranplasman an. Ka kote E/C a pa reponn alè yo ra anpil. Sepandan, nan ka sa a, yon echèk konsa te rive. Li enpòtan pou note ke neglijans lan sanble akòz avoka opozan an olye ke ajistè a. Nan enterè pwofesyonalis, nou te ofri pou travay an kolaborasyon ak avoka a pou idantifye yon lòt doktè ki akseptab pou tou de pati yo. Diskisyon sa yo jiskaprezan pa reyisi, paske nou pa vle dakò ak youn nan doktè karyè yo chwazi regilyèman. Antretan, moun ki fè reklamasyon an pwograme pou trete ak doktè li te chwazi a pita nan mwa sa a. Avoka opozan an konprann ke si pa gen yon akò sou yon lòt doktè anvan randevou sa a, E/C a ap oblije otorize tretman ak doktè moun ki fè reklamasyon an chwazi a dapre seksyon 440.13(2)(f).

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Kontakte nou nan 305-758-4900 oubyen pa imèl pou w konnen dwa legal ou yo.

Jeffrey P. Gale, P.A. se yon kabinè avoka ki baze nan Sid Florid ki angaje nan sistèm jidisyè a epi pou reprezante epi jwenn jistis pou moun – pòv yo, moun ki blese yo, moun ki bliye yo, moun ki pa gen vwa yo, moun ki san defans yo ak moun ki kondane yo, epi pou pwoteje dwa moun sa yo kont opresyon kòporasyon ak gouvènman an. Nou pa reprezante gouvènman, kòporasyon oswa gwo enterè biznis yo.

Pandan ke rezolisyon rapid nan pwoblèm legal ou a se objektif nou, apwòch nou an fondamantalman diferan. Kliyan nou yo se “moun” epi yo pa “ka” oswa “dosye”. Nou pran tan pou nou bati yon relasyon ak kliyan nou yo, nou reyalize ke se sèlman atravè yon entèraksyon ki gen sans nou ka pi byen sèvi bezwen yo. Nan fason sa a, nou te kapab pi byen ede moun ki bezwen reprezantasyon legal.

AVÈTISMAN: Enfòmasyon sa a ki bay pa Jeffrey P. Gale, P.A. se pou rezon enfòmasyon sèlman epi li fèt pou itilize kòm yon gid ki pa legal anvan konsiltasyon ak yon avoka ki abitye ak sitiyasyon legal espesifik ou a. Li pa ta dwe konsidere kòm konsèy legal oswa konsèy. Pa gen okenn entansyon pou bay konsèy legal oswa konsèy sa yo, ni eksplisitman ni enplisitman. Enfòmasyon sa a pa ranplase konsèy oswa konsèy yon avoka. Si ou bezwen konsèy legal, ou ta dwe chèche sèvis yon avoka.

The most significant manifestation of this control is the E/C’s statutory right to select the claimant’s authorized treating physicians. In practice, this dynamic frequently results in medical opinions that align with the interests of the E/C, often to the detriment of the injured worker. Because these physicians depend upon carrier referrals for a substantial portion of their practices, their opinions may—consciously or otherwise—reflect that economic reality.

On limited occasions, however, the E/C temporarily loses control of the medical care. The most common scenario arises when the claimant sustains severe injuries requiring emergency hospitalization and surgery. In such cases, the treating surgeon—particularly one who maintains a private practice—often continues as the primary physician following the claimant’s discharge from the hospital. While this physician is not selected by the E/C, neither is the physician chosen by the claimant. Nonetheless, the E/C’s initial control over physician selection is disrupted.

Section 440.13(2)(c), Florida Statutes, provides the E/C with a “reasonable time period” to furnish initial medical treatment and care. If the E/C fails to do so, the claimant “may obtain such initial treatment at the expense of the employer.” Even then, however, the statute allows the E/C to later regain control of the medical care.

This principle was illustrated in Carmack v. State of Florida, Department of Agriculture, 31 So. 3d 798 (Fla. 1st DCA 2009). There, the claimant suffered a compensable accident but the E/C refused to authorize psychiatric treatment arising from physical injuries to the claimant’s leg and back. The claimant independently sought treatment with a psychiatrist and filed a Petition for Benefits seeking authorization of both past and future care with that physician. The Judge of Compensation Claims ordered the E/C to pay for treatment through the date of the final hearing, but declined to authorize ongoing care with the claimant’s chosen psychiatrist. Instead, the E/C was permitted to select a different psychiatrist. The First District Court of Appeal affirmed, reinforcing the E/C’s ability to reassert control over the medical care even after an initial failure to authorize treatment.

Section 440.13(2)(f), Florida Statutes, provides what is often the only meaningful opportunity for a claimant to select a physician who will remain authorized prospectively. That opportunity, however, arises only when the E/C commits a statutory misstep. The relevant portion of the statute provides:

“Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident…. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.”

In Zekanovic v. American II, Corp., 208 So. 3d 851 (Fla. 1st DCA 2017), the E/C failed to respond within five days to the claimant’s written request for a one-time change of physician under section 440.13(2)(f). The claimant subsequently filed a Petition for Benefits seeking authorization of a specific physician as his one-time change. Although the JCC found that the claimant was entitled to the one-time change, the JCC concluded that because the claimant had not yet obtained treatment with the requested physician prior to the entry of the order, the E/C retained the right to select the replacement physician. On appeal, the First District reversed, holding that the E/C’s failure to timely respond forfeited its right to select the physician, and that the claimant was entitled to treat with the physician he selected.

In our practice, we routinely request one-time changes of physician. Given the significant consequence of a failure to timely respond—namely, forfeiture of medical control—the E/C almost always complies within the statutory five-day window and retains the right to select the replacement physician. Instances in which the E/C fails to timely respond are exceedingly rare.

In this case, however, such a failure occurred. Notably, the oversight appears attributable to opposing counsel rather than the adjuster. In the interest of professionalism, we offered to work collaboratively with counsel to identify an alternative physician acceptable to both parties. Those discussions have thus far been unsuccessful, as we are unwilling to agree to one of the routinely selected carrier physicians. In the interim, the claimant is scheduled to treat with the physician she selected later this month. Opposing counsel understands that absent an agreement on an alternative physician before that appointment, the E/C will be obligated to authorize treatment with the claimant’s chosen doctor pursuant to section 440.13(2)(f).

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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.

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.

That presumption, however, is not absolute. Law enforcement, courts, and personal injury practitioners should resist the temptation to stop their analysis there. Attentive, reasonable drivers can – and sometimes do – collide with the rear of a leading or stationary vehicle in broad daylight through no fault of their own.

Our firm, together with Attorney Sean Domnick, represented a client in litigation against a motor coach company and its driver arising from precisely such a scenario. Our client was operating his employer’s passenger bus when he struck the rear of a motor coach stopped in a through lane of travel. There was no traffic condition requiring the stop. The motor coach was not disabled; it had not run out of fuel, suffered a mechanical failure, or experienced any emergency. Nevertheless, it remained stationary in a live traffic lane.

Our client approached from behind in the same lane with an unobstructed view beginning approximately 2,500 feet away. There were no vehicles in front of or beside him in any lane. He observed the motor coach at a distance, but did not perceive that it was stopped until he was too close to avoid a collision. The result was catastrophic injuries. (Our client was extricated from his vehicle using the Jaws of Life and airlifted to the hospital.)

We retained multiple experts to address discrete aspects of the case. An engineer testified regarding speeds, distances, and stopping calculations. A trucking expert addressed industry standards and safety practices. Medical experts explained the severity and permanence of our client’s injuries, and an economist quantified past and future economic losses. None of those experts, however, was qualified to explain why a reasonably attentive driver can collide with a stationary vehicle without being negligent.

That explanation lies within the domain of human factors science.

We retained a leading human factors expert to address this critical question. Rather than attempting a technical exposition here, I will briefly describe – at a lay level – the most significant principles at issue: “looming motion and looming threshold.”

In roadway safety, looming motion concerns the human ability to perceive whether an object ahead is moving or stationary. Counterintuitively, a stopped vehicle in the roadway can be among the most difficult hazards to detect, even in broad daylight. At long distances, a stationary vehicle can produce visual information indistinguishable from that of a moving vehicle traveling at the same speed as the observer. In such circumstances, the absence of angular expansion delays recognition that the object ahead represents a hazard. Absent strong visual cues – such as warning triangles, visible occupants outside the vehicle, or signs of roadside activity – the human visual system may not immediately register that a vehicle ahead is not moving.

Closely related is the role of expectation. Human perception is influenced by what a driver reasonably anticipates encountering. Expectation can delay the recognition of danger. In our case, the collision occurred on our client’s regular route, one he had driven daily for more than ten years. The location – near the entrance to a major theme park – was specifically designed to allow commercial passenger vehicles to approach without interruption or delay. In all those years, our client had never encountered a vehicle stopped in this portion of the roadway without an apparent reason.

His reasonable expectation was that traffic would continue flowing smoothly toward the entrance gate located 800 to 1,000 feet ahead. Accordingly, although he saw the motor coach, he did not perceive that it was stationary. The combination of diminished perceptual cues and reasonable expectation created the perfect storm. While the motor coach driver had multiple safe alternatives and made an affirmative choice to stop in a through lane, our client – due to a scientifically explainable failure of perception – was deprived of any meaningful opportunity for cognitive choice.

The concept of “looming distance” is well established in human factors research. Mathematical models can determine the distance at which a stationary hazard should become perceptible to a reasonably attentive driver. Predictably, litigation focuses on the variables—such as vehicle speed—to be used in those calculations. In this case, however, both sides’ engineers agree on the speed at impact.

The “looming threshold” is the point at which the rate of angular expansion becomes sufficient for the human visual system to register that an object ahead is stationary or closing rapidly. This threshold is not subjective guesswork; it is a measurable and well-studied phenomenon grounded in vision science.

The looming threshold occurs later—often dramatically later—when:

• The stopped vehicle presents a large, uniform profile (e.g., a bus or motor coach);
• There are no visual cues indicating distress or abnormality;
• The roadway geometry and traffic flow create an expectation of uninterrupted movement; and
• Lighting and contrast conditions do not emphasize depth or closure.

Until the looming threshold is crossed, a driver may see the vehicle without perceiving it as a hazard.

Our human factors expert opined – using established science – that by the time a reasonably attentive driver would have perceived the motor coach as stopped, there was insufficient time or distance to avoid the collision. Importantly, all evidence supported that our client was, in fact, attentive.

It also bears emphasis that perception and reaction are not synonymous. Even after a hazard is perceived, additional time is required for cognitive processing and physical response.

This discussion is not intended to suggest that trailing drivers are never at fault. Clearly, many rear-end collisions result from inattention or negligence. The takeaway is more modest, but critical: lawyers must be willing to look beyond presumptions and examine the science. When they do, the results can be both professionally rewarding and profoundly meaningful to the client.

The case was tried before an Orlando jury, which awarded nearly $2,000,000 in damages and apportioned fault almost equally between our client and the corporate owner of the stopped motor coach.

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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.

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.

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

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

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

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

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

Two lessons emerge.

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

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

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

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

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

Jeffrey P. Gale, P.A. 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.

A foundational source for understanding Florida UM law is the Florida Supreme Court’s landmark decision in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So. 2d 229 (Fla. 1971). While the majority opinion provides a thorough discussion of UM principles, the specific issue before the Court was whether a resident relative injured while operating a vehicle owned by another resident relative – where that vehicle was not insured under the UM policy – was nonetheless entitled to UM benefits. The policy expressly excluded such coverage. The trial court and First District Court of Appeal upheld the exclusion, relying on United States Fidelity & Guaranty Co. v. Webb, 191 So. 2d 869 (Fla. 1st DCA 1966).

The Florida Supreme Court disagreed, holding that the exclusion was contrary to the UM statute and therefore unenforceable. The Court explained:

“Whenever bodily injury is inflicted upon the named insured or insured members of his family by the negligence of an uninsured motorist – under whatever conditions, locations, or circumstances they may be in at the time – they are covered by uninsured motorist liability insurance issued pursuant to section 627.0851. They may be pedestrians, passengers in someone else’s vehicle, in public conveyances, or occupying vehicles (including motorcycles) owned by but not insured under the UM policy of the named insured.”

The Court emphasized that this broad coverage applies to the named insured and resident relatives, but does not extend equally to all others who may be permissive users or occupants of the insured vehicle. As the Court noted:

“These latter are protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured automobile of the named insured with his permission or consent.”

Legislative Caveat After Mullis

Following Mullis, the Legislature amended the UM statute. Section 627.727, Florida Statutes, now permits insurers to offer limitations on UM coverage—but only if specific statutory notice and acceptance requirements are met. See Carbonell v. Automobile Ins. Co., 562 So. 2d 437 (Fla. 3d DCA 1990).

One key limitation in subsection (8)(d) provides:

The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.

These limitations are enforceable only if (1) disclosed on a form approved by the Department of Insurance, and (2) knowingly accepted by the insured. Rejecting the limitation generally results in a higher premium.

Additional Important UM Issues in Florida

• Settlement with liability insurers
  Under section 627.727(6)(a), if an injured person (or personal representative) intends to settle with a tortfeasor and that settlement will not fully satisfy the claim, written notice of the proposed settlement must be sent by certified or registered mail to all UM carriers. Each UM carrier has 30 days to either approve the settlement or elect to preserve subrogation rights.
• Examinations Under Oath (EUOs)
  Most UM policies include contractual EUO provisions. Failure to appear or cooperate may result in a denial of UM benefits.
• Bad-faith actions
  Before filing a UM bad-faith lawsuit, the insured must obey the civil remedy requirements of section 624.155, Florida Statutes.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com & kgale@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.

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.

But what about injuries that develop gradually over time — through years of physical stress or repetitive motion? Are these covered as well?

The Festa Standard

The answer is yes, provided the injured worker can establish three elements set forth in Festa v. Teleflex, Inc., 382 So. 2d 122, 124 (Fla. 1st DCA 1980):

1. Prolonged exposure,
2. A cumulative effect resulting in injury or the aggravation of a preexisting condition, and
3. A hazard greater than that to which the general public is exposed.

Subsequent cases have refined these requirements. In Rodriguez v. Frito-Lay, Inc., 600 So. 2d 1167 (Fla. 1st DCA 1992), the First District appeared to relax the “greater hazard” requirement. Meanwhile, the Florida Supreme Court in University of Florida v. Massie, 602 So. 2d 516 (Fla. 1992), held that for a preexisting condition to be compensable, it must be aggravated by a non-routine, job-related physical condition or by repeated physical trauma — signaling a limit on recovery for aggravations based solely on mental or emotional stress.

The Burden of Proof: Clear and Convincing Evidence

Repetitive trauma claims are subject to a higher evidentiary burden under section 440.02(1), Florida Statutes. The claimant must establish compensability by clear and convincing evidence, rather than the usual preponderance standard.

“Clear and convincing evidence” means evidence of such weight and character as to produce in the judge’s mind a firm belief or conviction, without hesitation, as to the truth of the allegations.

A Case Example: The Mattress Factory Worker

The first workers’ compensation case I ever took to a final hearing illustrates the Festa standard well.

My client was a woman in her 60s who spent more than 15 years constructing box-spring mattress frames in a warehouse. Her job required her to assemble and lift each frame—ranging from single to king size—onto a dolly beside her workstation. Over time, she developed severe cervical pain that forced her to retire. The employer and carrier denied her claim, arguing there was no single accident to explain her cervical disc herniations.

We filed a Festa repetitive trauma claim.

• Element (1): Prolonged exposure was easily shown by her 15-year work history.
• Element (2): Cumulative injury was established through lay and medical testimony. She denied any prior neck injuries, and her treating orthopedist opined that her job duties were the probable cause of her herniations.
• Element (3): Greater hazard was proven through both lay and expert evidence. She testified that, having once picked cotton as a young woman in the rural South, that work was difficult—but far less strenuous than her duties in the mattress factory. Her physician testified that her work exposed her to significantly greater physical demands than those faced by the general public. (We also urged the judge to take judicial notice of that fact.)

The judge ruled in our favor—finding the injury compensable and awarding Permanent Total Disability benefits under section 440.15(1), Florida Statutes.

Lessons from Experience

Since that case, we have successfully applied the Festa standard many times. While repetitive trauma claims present greater evidentiary challenges than single-incident accidents, they remain an essential avenue for justice when workplace injuries develop gradually over years of service.

Other Key Cases on Repetitive Trauma

• Houle v. Asphalt Sealing & Stripping Co., Inc., 397 So. 2d 669 (Fla. 1981) – Heavy lifting over time found consistent with claimed back injury.
• Sewell v. J.C. Penney, 569 So. 2d 1335 (Fla. 1st DCA 1990) – The court took judicial notice that the claimant’s job exposed her to greater hazards than the public.
• Johnson v. Knight, 594 So. 2d 836 (Fla. 1st DCA 1992) – Expert testimony is not always required to establish the “greater hazard” element.
• Daugherty v. Red Lobster, 550 So. 2d 171 (Fla. 1st DCA 1989) – Waitress awarded benefits for back injury caused by repetitive tray-carrying.
• Orlando Precast Products v. Ciofalo, 501 So. 2d 1326 (Fla. 1st DCA 1986) – Truck driver’s prolonged sitting, twisting, and heavy lifting met the greater hazard requirement.
• Winn-Dixie Stores v. Morgan, 533 So. 2d 783 (Fla. 1st DCA 1988) – Compensable wrist injury established where repetitive manual tasks led to trauma.

Final Thoughts

Repetitive trauma claims are not “second-class” cases under Florida’s workers’ compensation law. They demand more rigorous proof, but when properly developed, they can yield full and fair recovery for workers whose bodies have been worn down by years of honest labor.

As Festa and its progeny remind us, the absence of a single, dramatic accident does not make an injury any less real—or any less compensable.

Interestingly, in repetitive trauma cases, the statute of limitations begins to run on the date the injury becomes disabling—that is, when it results in lost wages or modified duty. We have successfully applied this principle to cases involving longstanding medical conditions that only recently, within the past two years, became disabling.

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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.

Under this system, the jury determines the percentage of fault attributable to the plaintiff, the defendant, and even nonparties who may have contributed to the injury. The jury also assigns a monetary value to the plaintiff’s damages. Together, these findings constitute the jury’s verdict.

A jury verdict is not the same as a final judgment. Only judges render final judgments, and in doing so, they consider several factors—two of the most important being the jury’s findings on fault and damages.

Consider a simple example:

Mr. Jones, visiting a friend’s condominium, trips over a large crack in a poorly lit underground parking lot and falls, suffering a severe laceration and a concussion. The lot, owned by a condominium association and managed by a maintenance company, had a long history of accidents caused by the same crack. After failing to reach a settlement, Mr. Jones sues both the association and the management company for negligence.

The jury returns a verdict of $500,000 in damages, apportioning fault 75% to the defendants (the association and management company) and 25% to Mr. Jones. Applying Florida’s comparative fault rule, the final judgment for Mr. Jones would be $375,000—reflecting 75% of the total damages awarded.

From Contributory to Comparative Fault

Before 1973, Florida followed the doctrine of contributory fault, under which a plaintiff who was even 1% at fault was barred from any recovery. In our example, Mr. Jones—though only 25% at fault—would have recovered nothing under that old rule.

Is there anything similar to contributory fault in modern Florida law? Sort of, but not quite. There remains a principle that can, in certain circumstances, prevent a plaintiff from recovering even when the defendant bears some responsibility: the Open and Obvious Doctrine.

The Open and Obvious Doctrine

The Open and Obvious Doctrine holds that certain conditions are so open and obvious that, as a matter of law, they cannot be considered dangerous, and therefore do not give rise to liability. Examples include:

• A six-foot-diameter planter (Taylor v. Universal City Property Mgmt., 779 So. 2d 621 (Fla. 5th DCA 2001));
• A landscaped area surrounded by large planks adjacent to a walkway (City of Melbourne v. Dunn, 841 So. 2d 504 (Fla. 5th DCA 2003));
• A raised concrete surface at a gas station, visible in broad daylight (Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d 1207 (Fla. 5th DCA 1990)).

The critical language in these cases is that the condition must be “glaringly open and obvious.”

Fortunately for most plaintiffs, Florida courts are generally reluctant to decide—as a matter of law—that a condition meets this standard. In most premises liability cases, the issue of liability remains a question for the jury.

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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.

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

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.

And sadly, the public has swallowed this propaganda—hook, line, and sinker.

Why would Corporate America want to discredit civil lawsuits?
The answer is simple: profits over people. By undermining the right of individuals to seek justice through the courts, corporations reduce their accountability for negligent and harmful conduct. Civil lawsuits are one of the few tools that force powerful interests to take responsibility. Limit those lawsuits, and you limit consequences. It’s that straightforward.

How does the propaganda work?
By fueling a false narrative of a “lawsuit crisis,” the public is stirred into demanding reform. Politicians—particularly those who proudly wear the “conservative” label—are more than happy to oblige. But not without a price. The loudest voices for lawsuit restrictions also tend to receive the most generous campaign contributions from corporate donors.

In response, these lawmakers push so-called “tort reform” laws that make it increasingly difficult for everyday Americans to take on big business in court. These laws don’t just stack the deck—they lock the courtroom doors.

It’s been happening for years, and it’s not just concerning—it’s dangerous. This is big business run amok.

Let’s go back to the McDonald’s coffee case.

Here are the facts:

In 1994, a New Mexico jury awarded $2.9 million to Stella Liebeck, a 79-year-old woman who suffered third-degree burns after spilling McDonald’s coffee on her lap. She was seated in a parked car, attempting to add cream and sugar when the coffee spilled. She sustained burns so severe that she was hospitalized for eight days, required skin grafts, and was left with permanent scarring and pain. Her medical bills exceeded $11,000.

Before filing suit, Ms. Liebeck simply asked McDonald’s to cover her medical expenses. The company offered $800.

Here’s what the public rarely hears:

• McDonald’s served its coffee at 195–205°F. Liquids at that temperature can cause third-degree burns in 3 seconds or less.
• Experts testified that coffee at 160°F (a much safer temperature) would take 20 seconds to cause the same damage—time enough to react and avoid serious injury.
• McDonald’s internal documents showed it had received over 700 burn complaints from hot coffee in the previous 10 years. The company had already paid out over $500,000 to settle similar claims.
• The jury awarded $200,000 in compensatory damages, reduced to $160,000 because Ms. Liebeck was found 20% at fault. They also awarded $2.7 million in punitive damages—roughly two days’ worth of McDonald’s coffee revenue—based on findings that McDonald’s acted with willful disregard for consumer safety.
• The judge later reduced the punitive award to $480,000. Both sides appealed and the case was ultimately settled for an undisclosed amount.
• The day after the verdict, the temperature of the coffee at that McDonald’s location was tested—reduced to 158°F.

Ms. Liebeck was not a serial litigant. She was a retired clerk, injured by a dangerously hot product. Her case was tried before a fair and impartial judge, with competent counsel on both sides, and a jury of everyday Americans. This wasn’t a rogue decision—it was the justice system working as designed.

The Bigger Picture

The Founding Fathers enshrined the civil jury system in the Constitution for a reason: it is the best safeguard a free society has against unchecked power. It’s not perfect, but it works remarkably well—if we let it. When mistakes occur, the system has mechanisms to correct them through judicial oversight and appellate review.

The smear campaign against the civil justice system isn’t about protecting the public from “greedy lawyers” or “runaway juries.” It’s about protecting corporate profits by weakening your right to hold wrongdoers accountable.

Believe in the civil jury system. It’s one of the last remaining ways for everyday people to stand on equal footing with the most powerful interests in our society.

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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.

One of the most significant distinctions between workers’ compensation and personal injury cases lies in the role of fault: workers’ compensation operates as a no-fault system, while personal injury claims require the injured party to prove that another’s negligence caused the harm. Because workers’ compensation operates as a no-fault system, benefits are typically provided from the outset of the claim. In contrast, personal injury cases often require lengthy litigation to establish fault, meaning compensation may not be received for months or even years.

Pursuant to Florida Statute § 440.39, when an employee or their dependents accept workers’ compensation benefits or initiate proceedings to obtain them, the employer—or its insurer—is subrogated to the rights of the employee or dependents against any third-party tortfeasor. This subrogation applies to the extent of compensation benefits paid or payable, as outlined in subsection (2).

This right of subrogation entitles the employer and its workers’ compensation insurer to reimbursement from any recovery the injured employee obtains—whether by judgment or settlement—from a third-party tortfeasor.

The employer and its workers’ compensation carrier rarely recover the full value of their lien. Florida Statute § 440.39(3)(a) sets forth the formula used to calculate the extent of their recovery. It calls for a pro rata determination. The Florida Supreme Court’s decision in Manfredo v. Employer’s Casualty Insurance Co. provides a clear and accessible explanation of how the statutory formula operates in practice.

In Liberty Mutual Insurance Company v. Robert A. Lee (Feb. 7, 2025), the issue concerned the proper “valuation date” for calculating the subrogation lien. Lee argued that Liberty Mutual was entitled to reimbursement of only 11.61% of the benefits it had paid through the date of his settlement with the elevator operator. Liberty Mutual, by contrast, maintained that it should be reimbursed for 11.61% of the benefits it paid through the date of the equitable distribution.

The valuation date was important in the Lee case because Liberty Mutual paid over $300,000 in benefits to Lee and on Lee’s behalf after the date of the settlement agreement.

Liberty Mutual argued that its position is supported by the plain language of section 440.39(3) providing that the lien applies to “benefits paid or to be paid.” Florida’s Sixth District Court of Appeal agreed.

The Court’s decision made a $34,830.00+ difference.

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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.