florida supreme court - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // Insurance Companies, Policyholders, and the Never-Ending Battle Over Claims: A Look at State Farm v. Curran

Jeffrey P. Gale, P.A. — Thu, 07 Aug 2025 15:16:58 GMT

I have blogged extensively on the constant tug-of-war between insurance companies and their insureds when it comes to claims handling. While insurers are relentless in demanding timely premium payments, their approach to claims is often summarized in two words: delay and deny.

Insurance carriers have an arsenal of tools designed to execute this strategy. Examinations Under Oath (EUOs), Independent Medical Examinations (IMEs), Compulsory Medical Examinations (CME), appraisals, allegations of policy misrepresentation, and claims of “failure to cooperate” are just a few of their go-to tactics. Some of these are provided by statute, others are embedded in the fine print of policy contracts.

At its core, an insurance policy is a contract. Although statutory law governs certain rights and obligations in the insurer-insured relationship, many critical aspects are controlled by the terms of the insurance policy itself. Inevitably, disputes arise over how these provisions are applied. When negotiations fail, courts are left to sort through the rubble.

One notable battleground in this ongoing war was addressed in the Florida Supreme Court’s decision in State Farm Mutual Automobile Insurance Co. v. Curran, 135 So. 3d 1071 (Fla. 2014). The legal issue in Curran was succinctly framed as:

‘When an insured breaches a compulsory medical examination provision in an uninsured motorist contract, does the insured forfeit benefits under the contract without regard to prejudice? If prejudice must be considered, who bears the burden of pleading and proving that issue?’

Here’s what happened:

Curran, insured by State Farm, sustained catastrophic injuries in a motor vehicle accident. The at-fault driver’s insurance coverage was insufficient, so Curran sought the $100,000 in uninsured motorist (UM) benefits under her State Farm policy. She gave State Farm 30 days to tender the limits, estimating her damages at $3.5 million due to Reflex Sympathetic Dystrophy Syndrome (RSD). On the 29th day, State Farm demanded Curran submit to a Compulsory Medical Examination (CME) under the policy.

The CME request was made pursuant to the terms of the insurance policy, which provide that a claimant has the duty to

“be examined by physicians chosen and paid by us as often as we reasonably may require. A copy of the report will be sent to the person upon written request. The person or his or her legal representative if the person is dead or unable to act shall authorize us to obtain all medical reports and records.”

A different section of the policy provided that “[t]here is no right of action against [State Farm] until all terms of this policy have been met.”

Curran refused to attend the CME and instead filed suit.

At trial, the jury awarded Curran $4.65 million in damages. State Farm appealed, arguing that Curran’s failure to attend the CME constituted a material breach of a condition precedent to coverage, resulting in a forfeiture of all policy benefits, regardless of whether State Farm was prejudiced by her non-compliance.

The Fifth District Court of Appeal disagreed. The court held that although Curran breached the contract by not attending the CME, State Farm still had the burden to plead and prove prejudice resulting from that breach in order to avoid liability. Simply pointing to the breach itself was not enough.

Recognizing the public importance of the issue, Florida’s Supreme Court reviewed the decision and, in a 5-2 ruling, affirmed the Fifth DCA. The Court held that an insured’s failure to comply with a CME provision does not automatically forfeit coverage unless the insurer can demonstrate actual prejudice. Importantly, the burden to prove prejudice rests with the insurer, as part of its affirmative defense.

State Farm’s mistake? It assumed the forfeiture argument would carry the day and neglected to develop the record on prejudice. In fact, the Court noted that Curran had offered to submit to a Rule 1.360 medical examination after litigation began, but State Farm strategically deferred the examination, betting everything on its forfeiture argument. That gamble failed.

The takeaway? Curran was a landmark victory for policyholders, but it also serves as a cautionary tale. Insureds who ignore policy requirements, even minor ones, do so at their peril. The stakes in Curran were immense: either collect the $4.65 million jury verdict — to recover this amount, instead of just the $100,000 UM limit, the insured will be required to show, in a separate trial, that State Farm was in bad faith for failing to tender the $100,000 within the demanded 30 day time period. She preserved the right to do this by filing a Civil Remedy Notice — or walk away with nothing. Had State Farm done a better job of presenting prejudice evidence, the outcome could have been very different.

Rest assured, insurance companies have studied Curran carefully. In future cases, they’ll be prepared to document prejudice to enforce forfeitures. Policyholders and their attorneys must be equally vigilant in navigating these contract provisions.

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

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

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

Jeffrey P. Gale, P.A. // Florida’s “Free Kill” Law: A Legal Loophole That Still Denies Grieving Families Justice

Jeffrey P. Gale, P.A. — Tue, 10 Jun 2025 16:29:57 GMT

Since 1990, Florida has enforced a statute commonly referred to as the “Free Kill” law. Codified at Section 768.21(8) of the Florida Wrongful Death Act, this provision creates a glaring exception in an otherwise remedial framework intended to support grieving families.

The legislative intent behind the Wrongful Death Act, as stated in Section 768.17, is clear:

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.”

From car crashes and construction accidents to defective products and medical malpractice, wrongful death claims arise in countless tragic ways. When negligence causes a death, Florida law generally allows surviving family members to recover damages — including for mental pain and suffering, often the most devastating aspect of such a loss.

But Section 768.21(8) carves out a critical exception: If the death is caused by medical negligence, parents of adult children (defined under Section 768.18(2) as those age 25 or older) and adult children of deceased parents are barred from recovering non-economic damages — no compensation for grief, anguish, or loss of companionship.

Yes, you read that correctly. If a doctor’s negligence kills your elderly parent or your adult child, Florida law says you’re entitled to nothing for your emotional loss. That’s why Section 768.21(8) has earned the nickname: “The Free Kill Law.”

The Insurance Myth

Proponents of the law claim it helps keep medical malpractice insurance rates down. But studies have not substantiated those claims. In fact, in McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court struck down arbitrary damage caps in medical malpractice cases, finding they violated equal protection. The Court specifically rejected the idea that such caps meaningfully reduce insurance premiums or promote physician retention.

A Repeal Effort Thwarted — Again

Over the years, bipartisan efforts to repeal the “Free Kill” law have steadily gained traction. During the 2024 legislative session, lawmakers introduced multiple bills to eliminate the unjust provision. Some were clean, straightforward repeal proposals. Unfortunately, opposition — fueled by powerful healthcare and insurance industry lobbyists — once again derailed reform.

One high-profile example: SB 248, sponsored by Sen. Corey Yarborough (R), sought to repeal Section 768.21(8), but only if unconstitutional damage caps (struck down in McCall) were reinstated. That bill failed, but not before it distracted from genuine repeal efforts — yet another missed opportunity.

Then, in the 2025 legislative session, both the House and Senate passed a full repeal of the Free Kill law by veto-proof majorities. But Governor Ron DeSantis vetoed the bill. Despite having the votes to override the veto, Republican legislators declined to act.

The result? The law remains intact. Some believe this was a calculated move — allowing lawmakers to appear supportive of repeal while ensuring the law stayed in place, placating key political donors. With Governor DeSantis term-limited, his veto came at little political cost.

Real Families, Real Grief

At our firm, not a week goes by without a call from someone devastated by this law — most often adult children grieving the preventable loss of a parent due to medical error. For many, we are not the first law office to deliver the heartbreaking news: Florida law offers them no remedy.

It’s a painful conversation every time. We encourage callers to reach out to their elected officials and demand change. Most say they will. Whether lawmakers will finally listen remains to be seen.

Bottom Line: Until Florida repeals the “Free Kill” law, the state’s legal system will continue to deny justice to countless families — especially those who lose elderly parents to preventable medical negligence. The fight isn’t over, but the time for action is long overdue.

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

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

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

Jeffrey P. Gale, P.A. /// Spouse Married Post-Accident Entitled to Florida Wrongful Death Damages

Jeffrey P. Gale, P.A. — Tue, 29 Oct 2024 18:51:30 GMT

In Ripple v. CBS Corp., 385 So.3d 1021 (Fla. 2024), the Florida Supreme Court held that a spouse who married the decedent after the onset of the injury that caused the decedent’s death can recover damages as a “surviving spouse” under section 768.21(2) of the Florida Wrongful Death Act (the Act). That provision allows a “surviving spouse” to recover “for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.”

Relying on statutory interpretation, the Court rejected the argument that the common law “marriage before injury” rule bars recovery under section 768.21(2). The “marriage before injury” rule is limited to personal injury claims. It provides that where a couple is not married before the injury occurred, no consortium damages are available. See, e.g., Tremblay v. Carter, 390 So. 2d 816, 817 (Fla. 2nd DCA 1980).

The Court noted that “a wrongful death claim is not a continuation of a common law personal injury claim.” Sheffield v. RJ Reynolds Tobacco Co., 329 So. 3d 114, at 120. Rather, the wrongful death cause of action accrues once the decedent dies from the injury; at that moment, both the common law personal injury claim and a spouse’s derivative common law loss of consortium claim abate. See ACandS, Inc. v. Redd, 703 So. 2d 492, 495 (Fla. 3d DCA 1997). In other words, the decedent’s death gives rise to an independent cause of action under the Act. Sheffield, 329 So. 3d at 121.

The Court’s opinion does not assure a recovery for the surviving spouse. The Court addressed the issue thusly:

Finally, we note that as the finder of fact, a jury may, in considering the evidence, determine whether a spouse’s conduct amounts to an attempt to marry into a section 768.21(2) claim. Nothing in our decision today prevents juries from considering the timing and duration of a couple’s marriage when evaluating a claim for damages under section 768.21(2). Our legal system entrusts the jury with evaluating the evidence to determine a proper award under section 768.21(2). See Philip Morris USA, Inc. v. Rintoul, 342 So. 3d 656, 676 n.6 (Fla. 4th DCA 2022) (Warner, J., concurring in part and dissenting in part) (stating that the jury “would certainly take into consideration the length of the marriage”); Peterson v. Sun State Int’l Trucks, LLC, 56 So. 3d 840, 842 (Fla. 2d DCA 2011) (explaining that “[w]hen a jury finds that one spouse has sustained injuries as a result of the negligence of a third party, an award of damages to the other spouse for loss of consortium is not automatic” and that “in order to prevail on a claim for loss of consortium, the claiming spouse must present competent testimony concerning the impact that the incident has had on the marital relationship”).

On a somewhat related topic, it is not uncommon for couples who have been together for a long period of time without engaging in formal marriage procedures, to believe they are married by common law. Florida does not recognize common-law marriages, although it does recognize common-law marriages entered into in another jurisdiction that recognizes them. See sec. 741.211, Fla. Stat.; Compagnoni v. Compagnoni, 591 So. 2d 1080, 1081 (Fla. 3rd DCA 1991).

In one of my first cases, I represented a woman who lived with a man in South Carolina for many years. They also had a number of children together. After they moved to Miami, Florida, he abandoned my client and their children to take up with another woman. He refused to pay alimony or split up any of their accumulated assets. While they lived in South Carolina, the state recognized common law marriage. We filed suit in Dade County to prove they were married by common law. The trial judge ruled in our favor. The bum appealed to the 3rd DCA. The 3rd DCA affirmed the trial judge’s ruling. Tough luck, buddy.

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

Jeffrey P. Gale, P.A. // Proxy Republican Legislators Kill Efforts to Abolish Florida’s “Free Kill” Medical Malpractice Law

Jeffrey P. Gale, P.A. — Wed, 17 Apr 2024 21:08:13 GMT

Since 1990, Florida has maintained a statute that has come to be commonly referred to as the “Free Kill” law. The statute, section 768.21(8), is located in the damages portion of the Wrongful Death Act.

The legislative intent of the Wrongful Death Act is set forth in section 768.17:

It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.

From motor vehicle crashes, construction accidents, defective products, and even medical negligence, wrongful death is caused in countless ways. The Wrongful Death Act allows the survivors of the decedent to recover from the wrongdoer once fault is established. Included within these remedies is the right to recover for mental pain and suffering. 768.21(8) is the exception to the rule.

Under 768.21(8), when a death is caused by medical negligence, mental pain and suffering damages (known as non-economic losses) are not recoverable by a parent for the loss of an adult child or by an adult child for the loss of a parent. 768.18(2) provides that a child 25 years of age or older is an adult child under the Act.

Yes, you read that right. Hence, the reason why 768.21(8) has come to be known as the “Free Kill” law.

Proponents of the law argue that its purpose is to keep medical malpractice insurance rates in check. Studies do not back up the rhetoric. In McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court struck down arbitrary damage caps in medical malpractice cases based on the same proposition, debunking arguments from medical malpractice insurance lobbyists and organized medicine.

A groundswell of support has formed over the years to repeal the “Free Kill” law. In the 2024 Florida legislative session, various bipartisan bills were put forward to wipe the law off the books. Some no-strings-attached clean bills designed to abolish the law were proposed. Unfortunately, legislators with strong support from the lobbyists in the health care and insurance industry came forward to derail those efforts. SB 248, put forward by state Sen. Corey Yarborough (R), gained traction among Republicans. It conditioned abolishment of the “Free Kill” law on reinstating unconstitutional damage caps — see McCall — in all medical malpractice cases. Thankfully, the bill was defeated, but the distraction resulted in a lost opportunity to eliminate 768.21(8). Maybe next year.

Not a week goes by where our office does not receive an inquiry from a survivor frustrated by the “Free Kill” law hoping for a miracle. The most frequent inquiries come from the adult children of elderly parents. Oftentimes, we are not the first law firm to have to break the bad news. Not that it’s any consolation, but we do tell them to contact their representatives to express displeasure. They all say they will.

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