Jeffrey P. Gale, P.A.

JEFFREY P. GALE, P.A. /// Florida Workers’ Compensation Death Benefits Fail Families

Jeffrey P. Gale, P.A. — Fri, 04 Sep 2026 20:09:55 GMT

Florida’s workers’ compensation system is beneficial to injured workers in many ways. Chief among them is the guarantee of medical care and wage‑replacement benefits to injured workers without regard to fault. (This does not necessarily mean carriers and injured workers do not dispute the scope and adequacy of benefits.)

The workers’ compensation system also contains some glaring deficiencies. Chief among them are the carrier’s control over the selection of medical providers and the severely limited amount of compensation available for death benefits.

In liability cases, death benefits are governed by Florida’s Wrongful Death Act. Damages are recoverable for loss of the decedent’s companionship and protection, lost parental companionship, instruction, and guidance, for mental pain and suffering, loss of net accumulations such as future wages. These damages can amount to millions of dollars to the decedant’s survivors. None of these damages are recoverable through Florida’s workers’ compensation system.

Death benefits under Florida’s workers’ compensation system are governed by section 440.16, Florida Statutes. The statute limits compensation to $7,500 in funeral expenses and $150,000 in total periodic payments to the surviving spouse and dependent children. Importantly, that $150,000 is a single aggregate cap — not $150,000 per person.

Some death cases involve both liability and workers’ compensation components. That is the situation in a matter our firm was recently engaged to handle. The decedent, a 29‑year‑old man, was one of three individuals who tragically drowned when the airboat they were riding in capsized and sank while on a work assignment. An investigation is underway to determine whether the airboat was negligently operated by a third‑party entity that is not protected by workers’ compensation immunity. If the airboat was negligently operated and the third‑party carries liability insurance, the decedent’s wife and young children may be able to pursue wrongful‑death damages in addition to the limited benefits available under workers’ compensation.

Unfortunately, most worksite accidents do not implicate third-party liability.

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Contact us today at (305) 758-4900 or by email for a free consultation to learn your legal rights. If we accept your case, we will represent you on a contingency fee basis — meaning you pay no upfront costs. Our fee is collected only if we obtain a favorable recovery on your behalf. If there is no recovery, you owe nothing.

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.

Our firm is always grateful for the many cases we receive through referrals from fellow attorneys, and we routinely pay referral fees to our referring counsel in accordance with applicable ethical rules.

Jeffrey P. Gale, P.A. // Understanding Haddad v. Lyft Florida, Inc.

Jeffrey P. Gale, P.A. — Mon, 17 Aug 2026 21:39:28 GMT

In May 2026, the Fourth District Court of Appeal issued a consequential opinion in Haddad v. Lyft Florida, Inc., fundamentally reshaping the scope of tort claims that may be brought against transportation network companies in Florida. Haddad effectively wiped out the entire suite of common‑law causes of action traditionally asserted against rideshare companies, unless the plaintiff can anchor the duty to a specific statutory requirement in § 627.748, Florida Statutes.

Common‑Law Causes of Action Eliminated by Haddad v. Lyft Florida, Inc.

(Unless tied to a statutory violation)**

1. Negligent Hiring

Any claim that Lyft/Uber owed a common‑law duty to hire safe drivers is barred.

Example:

“Lyft negligently hired a driver with a history of reckless driving.”

Why eliminated: The statute defines the duty (background check). Common‑law hiring duties are preempted.

2. Negligent Retention

Claims that Lyft should have removed a dangerous driver based on complaints or prior incidents are barred.

Example:

“Lyft negligently retained a driver despite multiple passenger complaints.”

Why eliminated: Only statutory disqualification duties survive.

3. Negligent Supervision

General allegations that Lyft failed to supervise or monitor drivers are barred.

Example:

“Lyft negligently supervised its drivers and failed to ensure safe operation.”

Why eliminated: The statute does not impose a supervision duty; common‑law supervision is preempted.

4. Negligent Training

Claims that Lyft should have trained drivers better (safe driving, passenger handling, emergency procedures) are barred.

Example:

“Lyft negligently failed to train its drivers on passenger safety.”

Why eliminated: The statute imposes no training duty; common‑law training duties are preempted.

5. Negligent Failure to Protect Passengers

Claims that Lyft owed a common‑law duty to protect passengers from foreseeable harm (driver assault, reckless driving, unsafe conditions) are barred.

Example:

“Lyft negligently failed to protect the passenger from the driver’s violent behavior.”

Why eliminated: Only statutory background‑check and zero‑tolerance duties survive.

6. Negligent Failure to Warn

Claims that Lyft should have warned passengers about risks associated with rideshare use are barred.

Example:

“Lyft negligently failed to warn passengers that drivers may have criminal histories.”

7. Negligent Safety Representations

Claims that Lyft negligently represented its rides as “safe,” “secure,” or “professionally vetted” are barred.

Example:

“Lyft negligently advertised that its rides were safe.”

Why eliminated: Haddad held that misrepresentation claims arising from the ride fall within statutory immunity.

8. Negligent Operation of a Transportation Service

Claims that Lyft negligently operated its rideshare platform or transportation network are barred.

Example:

“Lyft negligently operated its service by allowing unsafe vehicles on the road.”

9. Negligent Infliction of Emotional Distress (NIED)

NIED claims arising from the ride are barred unless tied to statutory violations.

Example:

“Lyft negligently caused emotional distress by allowing an unsafe driver to transport the plaintiff.”

10. Negligent Failure to Implement Additional Safety Measures

Claims that Lyft should have done “more” than the statute requires — enhanced background checks, in‑car cameras, stricter monitoring — are barred.

Example:

“Lyft negligently failed to install in‑vehicle cameras to protect passengers.”

Why eliminated: Haddad expressly rejected negligence theories based on duties beyond the statute.

11. Negligent Misrepresentation & Fraudulent Misrepresentation

Claims based on Lyft’s marketing, app statements, or website assurances are barred.

Example:

“Lyft negligently misrepresented that its drivers were thoroughly vetted.”

12. Vicarious Liability for Driver Negligence or Misconduct

Common‑law vicarious liability theories are barred unless the TNC owned or was bailee of the vehicle.

Example:

“Lyft is vicariously liable for the driver’s negligent operation of the vehicle.”

The Haddad Court framed the facts of the case as follows:

“Louise Haddad claims she was assaulted by her Lyft driver. She sued Lyft for negligent and fraudulent misrepresentation, alleging that statements on its website led her to believe that the ride would be safe, thus leading to the personal injuries she suffered at the hands of the driver.”

Lyft argued that section 627.748(18), Florida Statutes (2022) (“Subsection 18”), provided it with immunity against her claims. The trial court agreed and dismissed the complaint.

Section 627.748(18), Florida Statutes (2022), provides:

Vicarious liability.—

(a) A TNC is not liable under general law by reason of owning, operating, or maintaining the digital network accessed by a TNC driver or rider, or by being the TNC affiliated with a TNC driver, for harm to persons or property which results or arises out of the use, operation, or possession of a motor vehicle operating as a TNC vehicle while the driver is logged on to the digital network if:

1. There is no negligence under this section or criminal wrongdoing under the federal or Florida criminal code on the part of the TNC;

2. The TNC has fulfilled all of its obligations under this section with respect to the TNC driver; and

3. The TNC is not the owner or bailee of the motor vehicle that caused harm to persons or property.

(b) This subsection does not alter or reduce the coverage or policy limits of the insurance requirements under subsection (7) or the liability of any person other than the vicarious liability of a TNC as described in paragraph (a).

Florida Statute § 627.748 governs Transportation Network Companies—such as Uber and Lyft—and establishes the regulatory framework applicable to their operations in Florida.

Section 627.748(12) delineates the exclusive statutory duties imposed on transportation network companies. These are the specific obligations incorporated by reference in Section 627.748(18)(a)2. A rideshare company may be held liable for negligence only if it breaches one or more of these enumerated duties and that statutory breach proximately causes the claimant’s harm. In other words, liability now arises solely from statutory‑based negligence, not from any general‑law tort theory.

Although Florida law classifies rideshare drivers as independent contractors rather than employees of transportation network companies, § 627.748(12) nevertheless imposes a suite of mandatory safety, screening, and operational duties on TNCs that closely resemble the oversight obligations traditionally associated with employers. In effect, the Legislature has required TNCs to conduct background checks, verify driver eligibility, maintain specified insurance, and enforce safety‑related policies even in the absence of an employer‑employee relationship.

This statutory structure parallels § 768.096, which affords employers a rebuttable presumption against negligent hiring when they perform the background investigation prescribed by that statute. Although § 627.748(12) establishes a distinct, TNC‑specific set of screening and safety requirements, both provisions reflect a common legislative judgment: compliance with defined background‑check and vetting duties serves as a liability shield, while noncompliance exposes the entity to negligence claims grounded in statutory breach.

Neither Haddad nor § 627.748(18) disturb the mandatory insurance protections in § 627.748(7), which continue to provide coverage for injuries caused by a rideshare driver’s negligent operation of the vehicle while logged on to the digital network. These insurance obligations remain fully intact, even though tort claims against the TNC itself are largely barred.

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Jeffrey P. Gale, P.A. // Key Element in Workers’ Compensation Statutory Employer Liability

Jeffrey P. Gale, P.A. — Wed, 05 Aug 2026 21:24:52 GMT

The State of Florida obligates employers to secure and provide workers’ compensation benefits to their employees, as mandated by section 440.10, Florida Statutes. Employers typically satisfy this obligation by maintaining an active workers’ compensation insurance policy that ensures coverage for compensable workplace injuries.

Section 440.10(b) goes so far as to provide that where a “contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.” The contractor under these circumstances is commonly referred to as the “statutory employer.”

While Florida law requires a subcontractor to furnish the contractor with proof of workers’ compensation coverage—see section 440.10(1)(c), Florida Statutes—in practice, subcontractors frequently fail to maintain the required insurance. Gaps in compliance arise for a variety of reasons, including cost pressures, administrative lapses, misclassification of workers, or deliberate avoidance of premium obligations.

We are currently litigating these issues in two separate cases. In one, the subcontractor procured a policy that insured only himself and failed to cover his employees. When one of those employees sustained a deep laceration, the workers’ compensation carrier denied the claim for lack of coverage. In the other case, the subcontractor’s policy was cancelled just days before the accident due to nonpayment of premiums.

In our experience, contractors are far more likely than subcontractors to maintain the required workers’ compensation coverage. As a result, section 440.10(1)(b), Florida Statutes, operates as a critical safety net: when a subcontractor is uninsured, the contractor becomes the statutory employer and is responsible for securing benefits. Thus, an injured employee of an uninsured subcontractor should—at least in theory—ultimately receive workers’ compensation benefits through the contractor’s coverage.

Contractors and their carriers routinely resist statutory employer claims, leaving Claimants to establish each element of coverage. One element that is frequently overlooked is whether the contractor actually qualifies as a “contractor” under section 440.10(1)(b), Florida Statutes—a threshold requirement that must be proven before statutory liability can attach.

Interestingly, the outcome turns on whether the entity that sublet the work had a contractual obligation to perform the work it sublet. In Jones v. Florida Power Corp., 72 So. 2d 285, 289 (Fla. 1954), the Florida Supreme Court explained the statutory language as follows:

“[T]he clear implication in this part of the Act is that there must be a contractual obligation on the part of the contractor, a portion of which he sublets to another. To `sublet’ means to `underlet’, Webster’s New International Dictionary; in the context in which it is here used, the effect of subletting is to pass on to another an obligation under a contract for which the person so `subletting’ is primarily obligated.”

In Jones, Florida Power & Light (“Corporation”) was sued in a common‑law negligence action by an employee of a company it had retained to construct an extension to its Avon Park plant. The Corporation asserted workers’ compensation immunity on the ground that it qualified as the statutory employer under section 440.10, Florida Statutes. The trial court agreed and entered summary judgment in FPL’s favor based on that affirmative defense.

The Supreme Court reversed the lower court and remanded for further proceedings. It reasoned that since FPL owned the property under construction, it “had no primary obligation under a contract which it was passing on to another. It was not, then, a ‘contractor’ within the meaning of the Act.”

This legal standard carries significant implications under both common‑law negligence principles and Florida’s workers’ compensation scheme. In many worksite accidents, it is impossible to attribute fault to a third party; some incidents occur without any actionable negligence at all. When an accident “just happens,” the workers’ compensation system, which is a no-fault system, can be the only action the injured party can pursue.

Conversely, when significant injuries are caused by the negligence of a third party, a common‑law action may provide a far more meaningful remedy than workers’ compensation, offering damages that exceed the limited benefits available under Chapter 440. This is precisely the remedy the employee in Jones sought to pursue against FPL. Had FPL been deemed the statutory employer under section 440.10, the employee would have been barred from pursuing that common‑law action and limited exclusively to workers’ compensation benefits.

The principle established in Jones is too often overlooked, and ignoring it can lead to serious consequences.

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Jeffrey P. Gale, P.A. /// Medical Malpractice Relief for Medicaid Patients

Jeffrey P. Gale, P.A. — Tue, 30 Jun 2026 20:54:57 GMT

In 2011, the Republican-controlled Florida Legislature targeted some of the state’s most vulnerable citizens by enacting legislation that curtailed the legal rights of Medicaid recipients. Specifically, it imposed a cap on the amount of noneconomic damages—such as pain and suffering—that Medicaid recipients may recover in medical negligence cases. The pertinent provisions of that legislation, codified in Section 766.118(6), Florida Statutes, read as follows:

“with respect to a cause of action for personal injury or wrongful death arising from medical negligence of a practitioner committed in the course of providing medical services and medical care to a Medicaid recipient, regardless of the number of such practitioner defendants providing the services and care, noneconomic damages may not exceed $300,000 per claimant, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner. A practitioner providing medical services and medical care to a Medicaid recipient is not liable for more than $200,000 in noneconomic damages, regardless of the number of claimants, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner.”

The exception for conduct committed in a “wrongful manner” is not an exception applicable to ordinary medical malpractice and, therefore, does not alter the premise of this blog. Rather, the phrase “wrongful manner,” as defined in Section 766.118(6)(c), Florida Statutes, means conduct undertaken “in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” That standard describes conduct fundamentally different from ordinary medical negligence.

Beginning in 2003, the Florida Legislature enacted a body of legislation imposing arbitrary caps on noneconomic damages—including pain and suffering—in medical negligence cases. In doing so, the Legislature effectively replaced the judgment of juries with its own. No matter what a jury concluded after hearing the evidence and assessing the harm suffered by a malpractice victim, the Legislature mandated that those findings be overridden by a statutory ceiling. The result was a system in which the Legislature’s predetermined limits—not the jury’s considered evaluation—controlled the measure of a victim’s noneconomic loss. The Legislature’s chosen vehicle for this intrusion into the jury’s constitutional role is Section 766.118, Florida Statutes. Through this statute, the Legislature attempted to codify its own predetermined limits on noneconomic damages, displacing the jury’s fact‑finding function with a rigid, one‑size‑fits‑all cap.

The legislation is sweeping in scope, stripping every victim of medical negligence in Florida—including survivors in wrongful death actions—of the full measure of their rights.

Thankfully, a series of constitutional challenges to the legislation have met with meaningful success, with courts recognizing the statute’s overreach and its incompatibility with fundamental rights.

In North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017), the Florida Supreme Court issued a landmark decision striking down the statutory caps on noneconomic damages in personal‑injury medical malpractice cases. The Court held that the caps in Section 766.118 violated the Equal Protection Clause of the Florida Constitution (Article I, Section 2), fundamentally reshaping Florida’s medical malpractice landscape. Not surprisingly, the State—through Attorney General Pam Bondi—Trump’s former attorney general—defended the constitutionality of the caps, aligning itself with the Legislature’s effort to restrict noneconomic damages.

Background

The case arose after Susan Kalitan underwent outpatient surgery for carpal tunnel syndrome in 2007. During anesthesia, her esophagus was perforated, causing severe and permanent injuries. A jury awarded her approximately $4 million in noneconomic damages (such as pain and suffering), but the trial court reduced the award under Florida Statutes section 766.118, which imposed caps on noneconomic damages in medical malpractice cases. The case ultimately reached the Florida Supreme Court after the appellate court found those caps unconstitutional.

The Court’s Decision

The court held that the statutory caps on noneconomic damages for personal injury medical malpractice claims violated the Equal Protection Clause of the Florida Constitution. Applying the rational basis test, the majority concluded that the caps arbitrarily reduced compensation for the most seriously injured patients while allowing less severely injured plaintiffs to recover their full noneconomic damages. The court also found insufficient evidence that the alleged medical malpractice insurance crisis—which had been the Legislature’s justification for the caps in 2003—continued to exist or that the caps were rationally related to addressing it.

Relationship to Earlier Cases

The decision built directly on the court’s earlier ruling in Estate of McCall v. United States, which had invalidated similar noneconomic damages caps in wrongful death medical malpractice actions. Kalitan extended that reasoning to personal injury cases, effectively rendering the principal medical malpractice noneconomic damages caps in section 766.118 unenforceable under the Florida Constitution.

Significance

North Broward Hospital District v. Kalitan is regarded as one of the most consequential Florida tort law decisions of the 2010s. Its practical effect was to remove statutory limits on noneconomic damages in most Florida medical malpractice personal injury cases, allowing juries’ awards for pain, suffering, disability, and similar harms to stand without being reduced by the invalidated caps. The decision has had lasting implications for medical malpractice litigation, insurers, health care providers, and injured patients throughout Florida.

Unfortunately, these decisions do not appear to directly address subsection (6) of Section 766.118, which singles out Medicaid recipients for disparate treatment. Fortunately, a recently resolved case, Chiaka Stewart v. Florida Health Sciences Center, Inc. d/b/a Tampa General Hospital, will send a message that the law cannot stand.

In July 2021, Ms. Stewart, a 38-year-old Medicaid recipient, arrived at Tampa General Hospital suffering from a severe headache. Rather than ordering brain imaging or obtaining a neurology consultation, her healthcare providers treated her symptoms with pain medication and discharged her home.

Within 30 hours of being discharged, Ms. Stewart suffered a massive stroke. She was rushed back to the hospital, where brain imaging revealed extensive cerebral blood clots. The hospital’s failure during her initial visit to timely diagnose and treat those clots resulted in catastrophic, permanent injuries, including blindness, left-sided paralysis, a neurogenic stutter, and severe cognitive impairment. She will require life-long care.

Ms. Stewart retained counsel to pursue compensation for her life-altering catastrophic injuries. Her attorneys undertook the substantial expense and risk of litigating her case despite a statute that purported to limit her recovery of noneconomic damages to just $300,000 because she was a Medicaid recipient.

In September 2025, the jury returned a verdict awarding Ms. Stewart $70.8 million in damages, $51 million of which was allocated for pain and suffering.

Following the verdict, the hospital invoked Section 766.118(6), Florida Statutes, seeking to reduce the jury’s $51 million award in noneconomic damages to the statute’s $300,000 cap.

In 2011, the Legislature justified 766.118(6) by asserting that the cap bore “a rational and reasonable relationship to the state’s objective of providing health care access to the indigent.” However, the Legislature failed to recognize that, at the time it enacted the amendment, both federal and Florida law already required hospital emergency departments to provide appropriate emergency medical care to every patient, regardless of Medicaid eligibility, insurance coverage, or ability to pay.

Accordingly, the cap on noneconomic damages cannot be rationally justified as an “incentive” to encourage healthcare providers to treat low-income patients because both federal and Florida law already required that care to be provided. Until Chiaka Stewart’s case, no Florida appellate court had been asked to consider this argument.

Trial Judge Mark Wolfe agreed with Ms. Stewart:

“The negligence here occurred in an ER setting where treatment is statutorily mandated and, therefore, not susceptible to being incentivized. In other words, Section 766.118(6)’s Medicaid cap cannot increase the probability that healthcare providers in the emergency department will treat Medicaid patients, because in an emergency department, they have no choice in the matter- they are legally obligated to treat Medicaid patients.”

Simple, sensible, straightforward, and just.

The jury returned its verdict on September 25, 2025. The defendants subsequently sought various means of challenging the final judgment entered by the court, including filing a notice of appeal. Ultimately, the parties settled the case, bringing the litigation to an end.

Justice served.

Because of the statutory cap—and the substantial expense and risk inherent in prosecuting medical malpractice claims—many medical malpractice attorneys routinely declined emergency‑room cases involving Medicaid recipients. The economics simply did not justify the investment. In light of the Stewart decision, however, that calculus is poised to change. With the cap ostensibly eliminated, these claims now carry a realistic prospect of full noneconomic recovery, making them far more viable for practitioners who previously had no choice but to turn them away.

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Our firm is grateful for the many cases we receive through referrals from fellow attorneys, and we routinely pay referral fees to our referring counsel in accordance with applicable ethical rules.

When “Maternal Forces” Becomes a Litigation Theory: A Daubert Challenge in a Brachial Plexus Case

Jeffrey P. Gale, P.A. — Wed, 17 Jun 2026 21:20:22 GMT

Severe brachial plexus injury cases often turn on a single, sharply contested question: what caused the nerve damage—obstetrical forces applied by the physician, or the natural forces of labor itself? In a recent Florida medical malpractice case involving a catastrophic, permanent five-root brachial plexus injury, the plaintiff challenged the admissibility of the defense’s causation theory under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), arguing that it lacks a reliable scientific foundation.

The Injury at Issue

The child at the center of the case, Baby Boy, was delivered at Southside Medical Hospital in northwest Florida during a shoulder dystocia—a known obstetrical emergency in which the baby’s shoulder becomes impacted behind the maternal pelvis after delivery of the head. Immediately after birth, the child exhibited no movement in the right arm.

Surgical exploration later revealed devastating injuries: ruptures and avulsions involving all five roots of the brachial plexus (C5 through T1). These are not minor stretch injuries. They are permanent, structurally destructive injuries requiring nerve grafts and transfers, with no possibility of full recovery.

The plaintiff alleges the injury was caused by excessive traction applied during delivery rather than accepted maneuvers for resolving shoulder dystocia.

The Defense Theory: “Maternal Forces”

The defense intends to present expert testimony that the injury was caused not by obstetrical traction, but by maternal expulsive forces—the natural contractions and pushing efforts that occur in every vaginal delivery.

In other words, the defense theory is that routine labor forces alone produced one of the most severe forms of brachial plexus injury known in medicine.

To support this theory, the defense relies primarily on two experts: a pediatric neurosurgeon and an obstetrician.

The Problem: No Literature, No Experience, No Methodology

During deposition, however, both experts were unable to identify any meaningful scientific support for their opinions.

They could not point to:

Peer-reviewed studies
Published case reports
Clinical literature describing similar injuries caused by maternal forces alone
Or personal clinical experience demonstrating such a mechanism

Instead, the testimony revealed a consistent limitation: the absence of any scientific or experiential foundation linking maternal forces to catastrophic, multi-root avulsion injuries of this severity.

As the plaintiff argues, this is not a gap that can be filled by speculation.

A Critical Distinction in the Medical Literature

The Plaintiff has filed a motion to exclude the medical testimony that maternal forces caused Baby Boy’s injuries. The motion emphasizes an important distinction that even the defense experts did not dispute: not all brachial plexus injuries are the same.

The medical literature does recognize that maternal forces may be associated with mild, temporary nerve injuries—neuropraxias—that often resolve without surgery and do not involve structural nerve destruction.

But the injury in this case is fundamentally different.

It involved:

Ruptures of nerve roots
Avulsions (nerve roots torn from the spinal cord)
Permanent functional loss
Surgical reconstruction attempts

As plaintiff’s expert confirmed, there are no published reports of spontaneous maternal forces causing this type of catastrophic, multi-level avulsion injury.

The Experts’ Reliance on a Single Narrative Source

When pressed on what actually supports their opinions, the defense experts ultimately converged on a single foundation: the delivery note of the defendant obstetrician.

That note—prepared after the injury was known—forms the backbone of the defense causation theory.

Both experts conceded, in substance, that if the factual account in the note is inaccurate or incomplete, their opinions fail.

Why This Matters Under Daubert

Under Daubert, expert testimony must be grounded in sufficient facts or data and derived from reliable principles and methods reliably applied to those facts.

The plaintiff’s motion argues that requirement is not met here because:

The opinions are not supported by medical literature
They are not grounded in clinical experience involving the phenomenon described
They are not the product of an independent methodological analysis
And they depend entirely on accepting one party’s factual narrative without verification

In essence, the experts did not independently determine causation—they accepted it from the record and reasoned backward.

The Core Issue for the Court

Stripped of literature, clinical experience, and independent analysis, the defense causation theory reduces to a single proposition:

ordinary maternal pushing caused a catastrophic, permanent, five-root brachial plexus injury

The plaintiff argues that this proposition is not supported by reliable scientific evidence and therefore cannot be presented to a jury under Daubert.

Conclusion

The motion asks the court to exclude the defense causation opinions attributing the injury to maternal expulsive forces, on the grounds that they are not based on sufficient facts, not grounded in reliable methodology, and not reliably applied to the evidence in the case.

In short, the plaintiff contends that expert testimony cannot substitute for science, and assumption cannot substitute for methodology.

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Jeffrey P. Gale, P.A. /// Florida’s “Free Kill” Law Remains Alive

Jeffrey P. Gale, P.A. — Tue, 09 Jun 2026 22:21:34 GMT

Our law firm has written extensively about what has infamously become known as the “Free Kill” law.” More formally, the law is codified at section 768.21(8), Florida Statutes, a provision of Florida’s Wrongful Death Act, ss. 768.16-768.26.

Florida’s Wrongful Death Act traces its origins to an English statute enacted in 1846 known as Lord Campbell’s Act. That landmark legislation created, for the first time, a statutory cause of action for the wrongful death of a person resulting from the wrongful act, neglect, or default of another. Prior to the enactment of Lord Campbell’s Act, English common law did not recognize a civil cause of action for damages arising from a person’s death, even when the death was caused by another’s wrongful conduct.

Florida first adopted its modern Wrongful Death Act in 1972, when the Legislature enacted Chapter 72‑35, which created Sections 768.16–768.26 of the Florida Statutes. These sections have been amended over time, but 1972 is the year the statutory framework was originally established. It allows recovery by the decedent’s estate, and certain other specified persons, known as “survivors,” for the wrongful death of a person caused by the wrongful act or negligence of another, regardless of whether such act also constitutes a felony. Claimants are strictly limited to the damages allowed under the statutory scheme of recovery.

As originally enacted, the Act did not permit non-dependent adult children — s. 768.18(2) defines “adult” as 25 years of age or older — to recover damages for the loss of a parent’s support and companionship, or for the mental pain and suffering resulting from a parent’s wrongful death. Likewise, it did not allow grieving parents to recover such non-economic damages resulting from the wrongful death of an adult child.

This changed in 1990 with the enactment of CS/SB 324. The legislation amended the Act by expanding the rights of adult children to recover damages for lost parental companionship, instruction, and guidance, as well as for mental pain and suffering, when the decedent left no surviving spouse. The amendment also authorized each parent of an adult child to recover damages for mental pain and suffering resulting from the child’s wrongful death when there were no surviving relatives with a superior statutory claim.

Unfortunately, the bill’s sponsors were compelled by opposition from the insurance and medical industries to accept a significant exception to these otherwise sensible reforms. While the compromise may have been politically necessary to secure passage of the legislation, it created a substantial limitation on the expanded rights afforded by the amendment. That exception is codified in section 768.21(8), Florida Statutes, which provides as follows:

“The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).”

The exception has been controversial since its inception. In recent years, public opposition to what has become known as Florida’s “Free Kill” law has intensified, placing increasing pressure on elected officials to eliminate this inequitable provision.

In 2024, both chambers of the Florida Legislature passed legislation repealing the exception by margins sufficient to override a gubernatorial veto. Governor Ron DeSantis nevertheless vetoed the bill. Despite possessing the votes necessary to override that veto, the Republican-controlled Legislature declined to do so.

Many observers viewed this sequence of events as political theater. The Legislature appeared willing to cast symbolic votes in favor of repeal, thereby signaling support for grieving families, but unwilling to take the final step necessary to make repeal a reality. The mechanism existed; the political will did not.

As a result, Floridians continue to suffer the consequences of the Free Kill law. Our office receives inquiries on a weekly basis from adult children whose elderly parents died as a result of alleged medical negligence. Less frequently, but no less tragically, we also hear from parents seeking justice for the wrongful death of an adult child caused by medical malpractice. For many of these families, Florida law continues to deny any meaningful civil remedy.

When these individuals contact our office—many of whom already know that the law affords them no remedy—we encourage them to become advocates for change by sharing their stories with elected officials and the media. The growing momentum for reform is largely attributable to the efforts of these families, together with attorneys and other advocates throughout the state who have worked to bring attention to the injustice of the law.

Unfortunately, the insurance and medical industries possess significant political influence and resources, enabling them to mount strong opposition to legislative reform. As a result, efforts to repeal the exception have thus far fallen short, despite substantial public support for change.

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Jeffrey P. Gale, P.A. /// Planning for Catastrophic Injuries in Florida Workers’ Compensation Cases

Jeffrey P. Gale, P.A. — Sun, 31 May 2026 16:53:49 GMT

Our firm has handled its share of catastrophic injury cases in both the workers’ compensation system and the civil law system (i.e., personal injury cases). Because the needs of those injured—both now and in the future—are critically important, we must address their immediate needs while also planning for the long term.

While the underlying considerations are similar in both types of cases, this blog will focus specifically on how to handle these situations within Florida’s workers’ compensation system.

While Florida’s workers’ compensation system, which does not provide compensation for non-economic damages such as pain, grief, and suffering, may be far from ideal, it remains, in many respects, a framework well‑equipped to handle catastrophic injury claims.

Florida’s workers’ compensation system is primarily a creature of statute, set out in Chapter 440 of the Florida Statutes. Section 440.13(2)(a) provides that “the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require….”

Our firm is currently representing a gentleman who sustained a work‑related paraplegia in a rollover motor vehicle accident in North Florida. After his initial hospitalization, he was discharged to one of the premier rehabilitation facilities in the country, where he has remained for approximately ten months. Throughout his treatment, the employer’s workers’ compensation insurance carrier has covered all medical care without dispute in accordance with 440.13(2)(a).

While his injuries are permanent and profoundly life‑altering, he will eventually be discharged from the rehabilitation facility and return to his home to live with his wife and children. The insurance carrier has already authorized a general contractor to complete all necessary home modifications to accommodate his medical needs. These modifications—covered under Section 440.13(2)(a)—are both extensive and costly.

We have closely monitored his immediate needs, which—thanks to the highly professional efforts of the insurance adjuster and the carrier’s attorney—have been addressed smoothly and without interruption. Our focus is now beginning to shift toward his future needs, both in the short term and over the long term.

Short‑term objectives involve obtaining essential items, including a van modified for paraplegia, enabling our client to drive and to enter and exit the vehicle safely. It is also essential to arrange in advance for the continuation of his medical care once he is discharged from the rehabilitation facility. At this stage—now that his condition has essentially reached maximum medical improvement—his ongoing needs will closely mirror the daily care he currently receives as an in‑patient.

That care—which includes intensive physical therapy and the monitoring of complications such as pressure ulcers, neurogenic bladder and bowel dysfunction, respiratory issues, cardiovascular health, and psychological and emotional well‑being—is both essential and costly. This monitoring will occur both in his home, through trained professionals and family members, and during regular physician visits, most likely at the rehabilitation facility. His family members are entitled to be compensated for up to 12 hours per day for the care they provide.

Our client is 40 years old. Notably, studies indicate that a 40‑year‑old with paraplegia who survives the initial post‑injury period often has a remaining life expectancy measured in decades—frequently into their 60s, 70s, or beyond—depending on the severity of the injury and the quality of ongoing medical management.

It will be our responsibility to ensure that his ongoing medical management meets all statutory requirements. If the workers’ compensation carrier complies with the law, his care will meet the necessary standards. If it does not, we will pursue court intervention to compel the carrier to provide the highest level of medical care available.

Leaving nothing to chance, we are scheduled to meet with the rehabilitation facility’s medical director before our client is discharged. We will present a detailed, evidence‑based life care plan for his review and approval, and then provide the approved plan to the carrier so that all services are understood and arranged in advance, avoiding any delays or gaps in treatment. Everything the medical director approves will constitute medically necessary care.

In theory, Florida’s workers’ compensation system is designed to provide the highest level of medical care to anyone injured on the job. In practice, it does not always achieve that goal. With less serious injuries, these shortcomings can often be managed through reasonable alternatives. Catastrophic injuries are different. There are no acceptable substitutes. In such cases, medical necessity can be the difference between life and death.

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Jeffrey P. Gale, P.A. /// Florida Jurisdiction in Workers’ Compensation Cases for Out-of-State Accidents

Jeffrey P. Gale, P.A. — Mon, 18 May 2026 19:08:24 GMT

Can a Worker Injured Outside of Florida Be Eligible for Florida Workers’ Compensation Benefits?

Under § 440.09(1)(d), Fla. Stat., an employee injured outside of Florida may still be entitled to Florida workers’ compensation benefits if certain jurisdictional requirements are met:

“If an accident happens while the employee is employed elsewhere than in this state, which would entitle the employee or his or her dependents to compensation if it had happened in this state, the employee or his or her dependents are entitled to compensation if the contract of employment was made in this state, or the employment was principally localized in this state. However, if an employee receives compensation or damages under the laws of any other state, the total compensation for the injury may not be greater than is provided in this chapter.”

Key Jurisdictional Requirements

Florida jurisdiction may be established if either of the following is satisfied:

The contract of employment was made in Florida; or
The employment was principally localized in Florida.

The Contract of Employment

Florida courts determine where an employment contract is “made” by considering (1) the authority of the person involved in the hiring process and (2) the location where the final acts necessary to form the employment relationship occurred. Cleveland Consol., Inc. v. Haren, 672 So.2d 592, 593 (Fla. 1st DCA 1996) (quoting Nelson v. McAbee Constr., Inc., 591 So.2d 1015, 1016 (Fla. 1st DCA 1991)).

In DL Peoples Group, Inc. v. Hawley, 804 So.2d 561 (Fla. 1st DCA 2002), the court found Florida jurisdiction even though the claimant had limited contacts with the state. The claimant was interviewed and signed the employment agreement in Missouri, but the employer’s final approval occurred in Florida. The court emphasized that:

Mutual promises between employer and employee create a bilateral contract (McIntosh v. Harbour Club Villas Condominium, 468 So.2d 1075, 1076; Baiter v. Pan American Bank of Hialeah, 383 So.2d 256, 257; Mark Realty, Inc. v. Rogness, 418 So.2d 373, 376).
A contract is formed where the last act necessary to create a binding agreement occurs (Peters v. E.O. Painter Fertilizer Co., 75 So. 749; Ray-Hof Agencies, Inc. v. Petersen, 123 So.2d 251, 253; Goodman v. Olsen, 305 So.2d 753 (Fla. 1974)).

Because the employer’s final approval occurred in Florida, the employment contract was deemed made in Florida. See also Owens v. CCJ Auto Transp., 59 So.3d 179 (Fla. 1st DCA 2011); Miller Contracting Co. of Ohio v. Hutto, 156 So.2d 745 (Fla. 1963).

Principal Location of Employment

For jurisdiction under § 440.09(1)(d), the focus is on the employee’s principal work location, not the employer’s headquarters. Johnson v. United Airlines, 550 So.2d 134, 135 (Fla. 1st DCA 1989); Gen. Elec. v. DeCubas, 504 So.2d 1276, 1277 (Fla. 1st DCA 1986).

In DeCubas, a Florida resident injured in Georgia spent approximately 73% of his work time in Florida, and the court found his employment was principally localized in Florida. Similarly, in Hazealeferiou v. Labor Ready, 947 So.2d 599 (Fla. 1st DCA 2007), the court held that a flight attendant’s employment was principally localized in Florida based on the overall nature of the work, including supervision, payroll, and work assignments, even though a significant portion of work occurred outside the state. The court emphasized that time spent in Florida is an important factor, but not the sole determinant.

Conclusion

Determining Florida workers’ compensation jurisdiction for out-of-state injuries requires a fact-intensive analysis of both where the employment contract was formed and where the employment is principally localized. These issues are often nuanced and require careful evaluation of the full employment relationship.

In some cases, an injured worker may have the option to pursue benefits in more than one jurisdiction. Because each state maintains its own workers’ compensation statutory scheme, the advantages and limitations of each available system must be carefully evaluated to determine the most favorable avenue for relief.

By way of illustration, I engaged in a detailed jurisdictional analysis with a Maryland attorney concerning a potential claimant who was injured in Florida but resides in Maryland and was hired in Maryland by a Washington-based employer. We compared the jurisdictional factors and evaluated the relative benefits available under Florida and Maryland workers’ compensation systems to assess whether the claim should be pursued in Florida or handled under Maryland law. We decided that it was better for the client to pursue benefits in Maryland.

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

Our firm is grateful for the many cases we receive through referrals from fellow attorneys. We also routinely pay referral fees to referring counsel in accordance with applicable ethical rules.

Jeffrey P. Gale, P.A. // Florida Wrongful Death Case Gone Wrong

Jeffrey P. Gale, P.A. — Fri, 01 May 2026 21:30:25 GMT

Our office was recently contacted by an elderly gentleman whose wife was brutally murdered in her South Florida home in 2019 by a deliveryman employed by a large corporation. The assailant was subsequently convicted of first-degree murder and sentenced to life in prison.

The gentleman retained his sons—both licensed Florida attorneys—to pursue compensation from the assailant’s corporate employer. Although we are not privy to the specific theories of liability they advanced, it is reasonable to assume the claims were grounded in negligent hiring and negligent retention.

The case was settled relatively quickly for a substantial sum of money. So far, so good.

Unfortunately, what followed was a prolonged saga that ultimately fractured close family bonds.

Typically, a claim of this type is brought under Florida’s Wrongful Death Act on behalf of all “survivors” as defined by the statute. In this case, the elderly gentleman, the spouse, is the sole survivor under the Act.

Florida Statute §768.20 requires that a personal representative (PR) be appointed to recover damages “for the benefit of the decedent’s survivors.” The PR is a fiduciary who shall observe the standard of care of a trustee. In some cases, the PR is also the surviving beneficiary; in others, the PR may be a party with no beneficial interest—such as another family member, a friend or even a court-appointed stranger. In this case, one of the sons was appointed PR. Neither the appointed son nor the other son had a beneficial interest under the Wrongful Death Act. Hence, all net settlement proceeds belonged solely to the surviving spouse.

The Act provides that the surviving spouse, through the PR, may recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury. Section 768.21(2), Florida Statutes. The case settled for these damages.

The family rift arose over how the settlement funds were allocated and distributed.

Typically, under Florida’s Wrongful Death Act, 100% of the net settlement proceeds—e.g., after attorney’s fees and costs—are allocated to the statutory survivors; here, that would mean the entirety goes to the surviving spouse. Instead, the wrongful death settlement funds were paid into a trust controlled by the trustees, the surviving spouse’s lawyer sons. Through this trust, he would receive periodic payments.

The survivor petitioned to rescind the distribution of the wrongful death settlement to the trust. The petition claimed that the PR, individually and as personal representative, committed fraud or bad faith in connection with the wrongful death settlement by withholding material information about his rights as the surviving spouse—information that the PR had a duty to disclose. The surviving spouse also alleged that his other son had not advised him of his rights as the surviving spouse. The sons countered that they had fully informed their father of his rights and that he had settled and fully released his claims pursuant to waivers and consents filed in the probate administration as well as in a private agreement.

The PR moved for summary judgement based upon the private agreement, arguing that appellant had “waived any right to any further distribution under the Trust by the plain and unambiguous language in the Private Agreement.” The trial court granted the motion for summary judgment, finding that appellant had waived any right to further distribution under the trust based on the parties’ agreement.

This decision was appealed to the Fourth District Court of Appeal, which reversed and remanded for further proceedings. The district court instructed the trial judge to consider evidence regarding the alleged fraud and bad faith.

The DCA explained:

“Florida permits ‘the reopening of an estate after the discharge of the personal representative where there were procedural irregularities or facts constituting fraud or bad faith.’ Carraway v. Carraway, 883 So. 2d 834, 835 (Fla. 5th DCA 2004); see also Sims v. Barnard, 257 So. 3d 630, 631–32 (Fla. 1st DCA 2018) (noting the statutory bar will not be applied to a suit for fraud by concealment). ‘[A]n estate which has been closed can be reopened for the type of intentional misconduct which amounts to fraud.’ In re Estate of Clibbon, 735 So. 2d 487, 488 (Fla. 4th DCA 1998). ‘[F]raud is recognized as justification for reopening an estate, even after an order for discharge has been entered.’ Dean v. Bentley, 848 So. 2d 487, 489 (Fla. 5th DCA 2003). Further, ‘[i]n any transaction with a beneficiary, a fiduciary has an obligation to make full disclosure to the beneficiary of all material facts.’ First Union Nat’l Bank v. Turney, 824 So. 2d 172, 188 (Fla. 1st DCA 2001). Breaches of this duty of disclosure have been held to be fraud. Id. at 188–89 (citing Donahue v. Davis, 68 So. 2d 163, 171 (Fla. 1953)).”

The DCA described the lower court’s error as follows:

“Here, the trial court found that the estate could not be reopened for fraud, because appellant had waived any right to further distribution from the trust in the Private Agreement. But appellant was not seeking distributions from the trust. He was seeking to rescind the distribution to the trust from the settlement. The Private Agreement was not addressed to the estate; rather it was addressed to the trust. Thus, the Private Agreement does not control this claim.”

After considering evidence regarding fraud and bad faith, the trial court denied the petition to rescind the distribution of the wrongful death settlement to the trust. The trial court’s order was not appealed, resulting in the entry of a final judgment.

We could not help the gentleman other than to explain that he’d apparently reached the end of the road.

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

Jeffrey P. Gale, P.A. /// Landmark Decision Changes How the Statute of Limitations is Applied in Florida Workers’ Compensation Cases

Jeffrey P. Gale, P.A. — Fri, 10 Apr 2026 01:15:12 GMT

For more than thirty years, lawyers and judges have misapplied the statute of limitations in Florida workers’ compensation cases. Undoubtedly, this error has deprived countless injured workers of benefits to which they were entitled.

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. /// Florida Premises Liability Law – Open & Obvious and Building Code Violations

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

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

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

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

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

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

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

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

Jeffrey P. Gale, P.A. // Chwa Medikal Limite nan Ka Konpansasyon Travayè Florid yo

Jeffrey P. Gale, P.A. — Mon, 05 Jan 2026 20:35:19 GMT

Lwa Florid § 440.13 gouvène dispozisyon swen medikal anba sistèm konpansasyon travayè Florid la. Anjeneral, anplwayè a ak konpayi asirans li a (kolektivman, “E/C”) egzèse yon kontwòl sibstansyèl sou swen medikal yon travayè blese.

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.

Jeffrey P. Gale, P.A. // Limited Medical Choices in Florida Workers’ Compensation Cases

Jeffrey P. Gale, P.A. — Fri, 02 Jan 2026 17:21:54 GMT

Florida Statute § 440.13 governs the provision of medical care under Florida’s workers’ compensation system. As a general rule, the employer and its insurance carrier (collectively, the “E/C”) exercise substantial control over an injured worker’s medical care.

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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Jeffrey P. Gale, P.A. // Las Compañías de Seguros de Compensación Laboral Suelen Estar Exentas de las Acciones Legales Previstas en el Estatuto de Florida 624.155

Jeffrey P. Gale, P.A. — Fri, 02 Jan 2026 16:58:12 GMT

El Estatuto de Florida 624.155 otorga a las personas el derecho a demandar a las compañías de seguros si gestionan de forma indebida las reclamaciones y causan perjuicios económicos. Sin embargo, las aseguradoras de compensación laboral están exentas de estas disposiciones. El artículo 440.11(4) establece lo siguiente:

“Sin perjuicio de lo dispuesto en el artículo 624.155, la responsabilidad de una aseguradora ante un empleado o ante cualquier persona con derecho a interponer una demanda en nombre del empleado será la establecida en este capítulo, que será exclusiva y sustituirá a cualquier otra responsabilidad”.

Esto significa, en esencia, que los trabajadores lesionados suelen estar limitados a los recursos estipulados en el Capítulo 440 de los Estatutos de Florida al tratar con las aseguradoras de compensación laboral. En la mayoría de los casos, estos recursos se adaptan a las circunstancias.

Sin embargo, existe una excepción importante a los recursos del Capítulo 440.

En Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla 2005), la Corte Suprema de Florida declaró que los empleados pueden presentar demandas civiles independientes por agravio contra las aseguradoras por conducta que cause daño intencionalmente.

La Corte distinguió entre mala conducta deliberada y flagrante y simples demoras procesales o mala fe habitual en la tramitación de la reclamación de indemnización del empleado, contempladas en la disposición de exclusividad de responsabilidad del artículo 440.11(4) de los Estatutos de Florida. El Tribunal explicó:

“Con respecto a la responsabilidad de una aseguradora de compensación laboral, el artículo 440.11(4) disponía que ‘sin perjuicio de lo dispuesto en el artículo 624.155, la responsabilidad de una aseguradora ante un empleado o ante cualquier persona con derecho a interponer una demanda en nombre del empleado será la establecida en este capítulo, la cual será exclusiva y sustituirá a cualquier otra responsabilidad’. En esencia, el sistema está diseñado para que los empleadores y las aseguradoras asuman la responsabilidad de cantidades limitadas de beneficios médicos y por pérdida de salario resultantes de lesiones laborales, independientemente de la culpa, a cambio de limitaciones en su responsabilidad, mientras que el empleado recibiría, en consecuencia, una compensación limitada por pérdida de salario y beneficios médicos de forma rápida y eficiente. El sistema de compensación laboral nunca fue diseñado ni concebido para actuar como un escudo para quienes incurren en conductas intencionales que causan lesiones a los trabajadores a través del propio proceso de beneficios”.

Las disposiciones de inmunidad del artículo 440.11(4) son formidables; solo una conducta verdaderamente atroz puede superarlas. Los hechos del caso Aguilera demuestran lo exigente que es ese estándar.

Se notificó nuevamente a la aseguradora que se requería atención urológica urgente porque la orina de Aguilera supuestamente había comenzado a oler a heces.
Cuatro días después, se le informó a Aguilera que sus beneficios de compensación laboral serían cancelados, a pesar del informe de dos médicos, incluyendo la opinión del propio médico de la aseguradora, de que no debía regresar al trabajo.
La aseguradora intervino y, de hecho, bloqueó la recepción de Aguilera de la medicación que le había recetado el médico de urgencias del hospital para su afección urinaria.
Posteriormente, la aseguradora volvió a denegar la solicitud de emergencia de Aguilera para la atención de un urólogo, alegando que no era médicamente necesaria. En ese momento, la aseguradora contaba con documentación médica que demostraba la falsedad de su postura y establecía claramente la necesidad médica de la atención.
El médico tratante de Aguilera informó a la aseguradora que su necesidad de una consulta urológica era urgente y que su condición se estaba deteriorando. El propio médico de la aseguradora le recetó a Aguilera varias pruebas de orina, y las citas fueron programadas por la enfermera de la aseguradora.
Sin embargo, uno de los peritos de la aseguradora intervino de nuevo y simplemente canceló unilateralmente algunas de estas pruebas médicas.
Las pruebas que finalmente se realizaron, específicamente una uretrografía retrógrada, revelaron que Aguilera tenía una fístula, o un orificio en la vejiga.
El perito de la aseguradora denegó la autorización para la cirugía de emergencia e insistió en una segunda opinión.
El perito se presentó en secreto en el consultorio del médico para la cita de Aguilera con un urólogo forense independiente (IME).
El perito instó a Aguilera a mentirle a su abogado y a engañarlo, diciéndole que no se había presentado en el consultorio, contrariamente a la realidad. La cirugía definitiva de Aguilera, cuya necesidad se había diagnosticado como de emergencia ya en junio de 1999, no fue finalmente autorizada ni aprobada hasta el 22 de marzo de 2000. Para entonces, según las acusaciones, Aguilera llevaba más de diez meses orinando heces y sangre.

La decisión de Aguilera repercutió en toda la industria aseguradora, lo que provocó una reestructuración inmediata de las prácticas de tramitación de reclamaciones para atender mejor las necesidades de los trabajadores lesionados. Si bien persisten algunos abusos, las faltas más flagrantes se han reducido en gran medida.

Prevalecer bajo el marco legal establecido por el caso Aguilera es excepcionalmente difícil; los hechos deben ser tan graves que resulten indignantes, y los daños resultantes deben ser permanentes y sustanciales. En consecuencia, solo se han presentado un número limitado de casos de este tipo.

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Contáctenos al 305-758-4900 o por correo electrónico (jgale@jeffgalelaw.com) para una consulta gratuita y confidencial y conozca 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 lesionados, los olvidados, los que no tienen voz, los indefensos y los desamparados, y con la protección de sus derechos frente a la opresión de corporaciones y gobiernos. 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 brindar la mejor ayuda a quienes requieren representación legal.

Jeffrey P. Gale, P.A. // Honorarios de Abogados en Casos de Muerte por Negligence en Florida

Jeffrey P. Gale, P.A. — Fri, 02 Jan 2026 16:05:13 GMT

La Ley de Muerte por Negligencia de Florida, §§ 768.16–768.26, Estatutos de Florida, se centra en las pérdidas sufridas por los sobrevivientes individuales y crea un derecho distinto a la indemnización para cada uno. Si bien cada sobreviviente tiene un derecho independiente a la indemnización, no pueden presentar demandas por separado. En cambio, el representante personal del fallecido es la única parte legitimada para presentar una demanda por muerte por negligencia en nombre del patrimonio y de todos los sobrevivientes. Véase § 768.20, Estatutos de Florida. Por lo tanto, todos los sobrevivientes y demandantes deben participar en una única acción presentada por el representante personal, y cualquier indemnización otorgada en el juicio debe repartirse entre los sobrevivientes en el veredicto. Wiggins v. Estate of Wright, 850 So. 2d 444 (Fla. 2003).

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.

Jeffrey P. Gale, P.A. // The Science of Looming Motion and Looming Threshold in Rear-End Motor Vehicle Collisions

Jeffrey P. Gale, P.A. — Fri, 19 Dec 2025 18:56:18 GMT

Rear-end collisions account for more than 25 percent of all roadway motor vehicle accidents. The reflexive response is to blame the driver of the approaching vehicle – the one who strikes the vehicle ahead. Florida law reinforces this instinct by creating a rebuttable presumption of fault against the trailing driver. Gulle v. Boggs, 174 So. 2d 26, 27–29 (Fla. 1965) (When “a defendant runs into the rear of a plaintiff’s automobile while the plaintiff is stopped for a traffic light or at an intersection, there is a presumption of negligence of the defendant … . The presumption provides a prima facie case which shifts to the defendant the burden to go forward with the evidence to contradict or rebut the fact presumed. When the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, then the impact of ‘the presumption is dissipated.’ Whether the ultimate fact has been established must then be decided by the jury from all the evidence before it without the aid of the presumption.”)

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. // Florida Workers’ Compensation: Jurisdiction for Out-of-State Injuries

Jeffrey P. Gale, P.A. — Wed, 10 Dec 2025 20:34:47 GMT

Can a Worker Injured Outside Florida Be Eligible for Florida Workers’ Compensation Benefits?

Under § 440.09(1)(d), Fla. Stat., an employee injured outside Florida may still be entitled to Florida workers’ compensation benefits if certain conditions are met:

“If an accident happens while the employee is employed elsewhere than in this state, which would entitle the employee or his or her dependents to compensation if it had happened in this state, the employee or his or her dependents are entitled to compensation if the contract of employment was made in this state, or the employment was principally localized in this state. However, if an employee receives compensation or damages under the laws of any other state, the total compensation for the injury may not be greater than is provided in this chapter.”

Key Elements for Florida Jurisdiction

The contract of employment was made in Florida; or
The employment was principally localized in Florida.

The Contract of Employment

Florida courts determine where an employment contract was made by considering (1) the authority of the person involved in hiring negotiations, and (2) the place where the employment conditions were to be performed. Cleveland Consol., Inc. v. Haren, 672 So.2d 592, 593 (Fla. 1st DCA 1996) (quoting Nelson v. McAbee Constr., Inc., 591 So.2d 1015, 1016 (Fla. 1st DCA 1991)).

In DL Peoples Group, Inc. v. Hawley, 804 So.2d 561 (Fla. 1st DCA 2002), the claimant had minimal contacts with Florida, yet the Florida JCC had jurisdiction because the contract was executed in Florida. Hawley was interviewed and signed the employment agreement in Missouri, but the final approval and execution of the agreement occurred in Florida. The Court emphasized that:

Mutual promises between the employee and employer created a bilateral contract (McIntosh v. Harbour Club Villas Condominium, 468 So.2d 1075, 1076; Baiter v. Pan American Bank of Hialeah, 383 So.2d 256, 257; Mark Realty, Inc. v. Rogness, 418 So.2d 373, 376).
A contract is formed where the last act necessary to make a binding agreement occurs (Peters v. E.O. Painter Fertilizer Co., 75 So. 749; Ray-Hof Agencies, Inc. v. Petersen, 123 So.2d 251, 253; Goodman v. Olsen, 305 So.2d 753).

Because Hawley’s acceptance and the employer’s final approval occurred in Florida, the employment contract was considered made in Florida. See also Owens v. CCJ Auto Transp., 59 So.3d 179 (Fla. 1st DCA 2011); Miller Contracting Co. of Ohio v. Hutto, 156 So.2d 745 (Fla. 1963).

Principal Location of Employment

For jurisdiction purposes under § 440.09(1)(d), the principal location of the employee’s work—not the employer’s business—is determinative. Johnson v. United Airlines, 550 So.2d 134, 135 (Fla. 1st DCA 1989); General Elec. v. DeCubas, 504 So.2d 1276, 1277 (Fla. 1st DCA 1986).

In DeCubas, a Florida resident injured in Georgia spent 73% of his working time in Florida. The court held that his employment was principally localized in Florida. Similarly, in Hazealeferiou v. Labor Ready, 947 So.2d 599 (Fla. 1st DCA 2007), a flight attendant’s work was primarily based in Florida despite spending most flight hours outside the state. The Court emphasized that temporal distribution is important but not dispositive; supervision, payroll, and work assignments in Florida confirmed principal localization.

Conclusion

Determining Florida workers’ compensation eligibility for out-of-state injuries often requires careful analysis of the employment contract and the principal location of employment. Because these cases can involve nuanced jurisdictional issues, consulting a workers’ compensation expert is advisable before taking a position.

For example, just yesterday I participated in a lengthy discussion with a Maryland attorney about a potential client who was injured in Florida but resides in Maryland and was hired in Maryland by a Washington-based company. We examined the jurisdictional issues and compared the type, nature, and quality of workers’ compensation benefits available in Florida versus Maryland to determine whether the matter should be referred to our firm for pursuit of Florida benefits or handled under Maryland’s system. Because several key questions remain unanswered, no final determination has yet been made.

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

Jeffrey P. Gale, P.A. // Unlock Full Recovery: Using Subrogation Assignments to Your Advantage

Jeffrey P. Gale, P.A. — Wed, 10 Dec 2025 18:05:39 GMT

A core responsibility of lawyers representing clients with personal injury or property-damage claims is to maximize recovery. Conventional wisdom holds that recovery is limited to actual damages – the plaintiff cannot collect more than the loss suffered.

Florida law, however, provides a pathway to expand recovery when subrogation, reimbursement, or contribution rights exist.

In Despointes v. Florida Power Corporation, 2 So. 3d 360 (Fla. 2d DCA 2008), the insured had received $224,567.66 from her own insurer, CIGNA, for fire damage. Through an assignment of CIGNA’s subrogation rights, she was able to recover the same amount against a third party allegedly responsible for the loss caused by a defective surge protector. The trial court initially barred recovery, but the Second District reversed, noting that allowing the tortfeasor to avoid liability “because the victim was prudent enough to obtain insurance” would be unjust.

Assignments of subrogation or contribution rights are well-established under Florida law, as reflected in § 768.76(1), Fla. Stat., and cases like Robarts v. Diaco, 581 So. 2d 911 (Fla. 2d DCA 1991), where defendants assigned their rights of contribution to the plaintiff.

The key takeaway for practitioners: when a right of subrogation or reimbursement exists, consider obtaining an assignment. This strategy can unlock recovery beyond the client’s direct damages.

A word of caution: assignments often come at a cost. The assignor is relinquishing something of value, which may require negotiation, such as accepting a reduced settlement. In Despointes, while the opinion does not specify, the insured may have agreed to a lesser amount from CIGNA in exchange for the assignment.

By strategically leveraging subrogation or contribution assignments, plaintiffs can prevent tortfeasors from benefiting from the plaintiff’s foresight in obtaining insurance and potentially maximize overall recovery.

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

Jeffrey P. Gale, P.A. /// Attorney’s Fees in Florida Wrongful Death Cases

Jeffrey P. Gale, P.A. — Mon, 08 Dec 2025 20:59:33 GMT

Florida’s Wrongful Death Act, §§ 768.16–768.26, Fla. Stat., focuses on the losses suffered by individual survivors and creates a distinct entitlement to damages for each one. Although each survivor has a separate claim for damages, they may not bring separate lawsuits. Rather, the decedent’s personal representative is the sole party with standing to file a wrongful death action on behalf of the estate and all survivors. See § 768.20, Fla. Stat. Thus, all survivors and claimants are required to participate in a single action brought by the personal representative, and any damages awarded at trial must be apportioned among the survivors in the verdict. Wiggins v. Estate of Wright, 850 So. 2d 444 (Fla. 2003).

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. // Motor Vehicle Rental Agencies Evade Vicarious Liability Under the Dangerous Instrumentality Doctrine

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

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

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

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

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

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

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

Two lessons emerge.

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

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

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

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

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