Palm Coast Injury Law Blog : Florida Personal Injury Lawyer & Attorney : Philip J. Chanfrau : Chiumento & Guntharp Law Firm : Palm Coast, Volusia, Flagler, St. Johns

I recently wrote a blog about the “T” word: Tickets, here. Today’s blog is about another word lawyers cannot use in front of the jury: Insurance. More specifically, that the defendant has Insurance. There is no automatic mistrial, but the courts often grant one. See Hollenbeck v Hooks

All injury and death cases start by filing a lawsuit against a defendant. The lawyer names the defendant, but the defendant’s insurance company is never joined in the suit. Why not? When the Judge starts a trial he asks the jury have your heard of this case: and then he names the parties. By naming an Insurance company the Juror’s know there is insurance for this case. But ever since 1976 in Florida a lawyer cannot sue the defendant’s insurance company. The result: jurors are not aware that a powerful insurance company is sitting in the room controlling the defense all the way from jury selection to final verdict, including the most important choice of all: whether to settle or not. So if you are called for jury duty, be aware of this information.

Thus the “I” word: Insurance cannot be mentioned in the presence of the Jury or it will likely result in a mistrial, and the case has to be started over again without a “tainted” jury.

Historically there was a period of time when lawyers sued the defendant and combined his insurance company. This was called “joinder.” In 1976 the Florida legislature enacted the non-joinder statute. Ever since then an insurance company cannot be sued as a co-defendant. FS 627.4136. Even though the insurance company is not a party, the legislature granted insurance carriers the unique right to recover court costs just as thought they were parties. FS 627.4136(2). And, even though carriers control all aspects of the defense, they do not have liability under the offer of judgment statute for a large verdict, which could have been avoided. In other words, carriers get their cake and can eat it too. This imbalance has been the comment of at least one appellate court judge, but nothing has changed.

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When a worker is  injured by another negligent person  he can sometimes make two claims: one is a negligence claim and the other is a claim for his worker's compensation benefits.  If the negligent person works for the same boss as the injured person there is only one claim, for worker's compensation.  So the question is: was the negligent person a fellow employee.  If not a fellow employee he probably has two claims. Clearly, an employee injured by a materialman delivering materials to the job, or a materialman delivering materials who is injured due to a dangerous condition at the job can make a claim.  See Adams Homes of Northwest Florida v Cranfill, 7 So.3rd 611 (Fla. 5th DCA 2009.) If an injured worker was delivering pizzas for Pizza Hut and gets smacked down by a drunk driver, he can sue the drunk driver.  The pizza driver cannot recovery twice for the same claim, so what happens?

• he gets to file a claim against the drunk driver  AND 
• a claim against his worker's comp. The worker's comp company  get's a lien against his case.
• If there are $25,000 in medical bills and wage losses advanced by his worker's comp carrier, then a share of the total bills paid by  worker's compensation comes out of his settlement with the insurance company for the drunk driver. This right of reimbursement helps keep down the high cost of worker's comp.

There is a misunderstanding about what you can get if there are two claims, so let me explain this way.  Assume the losses are as follows:

1. wage losses
2. medical bills
3. pain and suffering
4. loss of enjoyment of life
5. mental anguish

Of the losses listed only items 1 and 2 are covered by worker's compensation.  If it is a death case, then the survivor's get loss of support, and their pain and suffering for the loss of the loved one, plus funeral and medical bills.  Worker's comp pays a max of $150,000 for a death claim.

Yesterday there was a story about a  tragic accident at the site of the new Epic movie theater under construction in Palm Coast.  The news reports indicate the worker who died was a welder working for a welding company out of Palatka who fell 25 feet to his death.  Details were not provided. The accident is probably still under investigation by OSHA.  As an example, if the deceased in that accident was negligently killed due to the fault of another trade, such as the scaffolding company or the crane operator, the  deceased's family would have a wrongful death claim against them. If the accident happened because the welder was not provided with safety gear to prevent his fall, then his employer would be at fault but IMMUNE from a lawsuit if it provides worker's comp benefits.

Death benefits are part of Worker's comp.  It pays $150,000 in death benefits plus up to $7,500 for funeral bills.   There is a brief description about this here. That is a small price to pay for the life of a 40 year old worker.  A death claim could result in a much larger recovery for his surviving family members.  Because the $150,000 gets doled out over a long period of time, and is not a part of his estate, it cannot be levied against or garnished by any debtors the deceased may have had.  So a bank could not go after the proceeds from the worker's comp payout to payoff a mortgage debt.

The lesson here is that there are extra legal rights in certain types of cases, including worker's comp cases.  It pays to know your rights. It pays to know an experienced lawyer.

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Cell phones are easy to turn off and on. They should be inaccessible  when we drive.

Distractions cause accidents no matter where they occur. They can and do happen in hospitals, cruise ships, airports and airplanes, the workplace, grocery stores, baseball parks, golf courses, I-95 or at home. Distractions are just the latest example of  our human frailties and cannot be eliminated by passing a few laws. If you aren’t paying attention and push a grocery cart into a customer while you are on the cell phone that’s negligence. Same thing if you run your car into someone while you are on the cell phone. 

 Lots of things happen in cars: Some people eat, drink, talk, put on makeup, read books or  maps, listen to MP3s, radios, watch DVDs, and talk and text with a cell phone. When we drive with passengers, the number of sources of possible distractions goes up. Drivers are tempted to turn and look at their faces, laugh, and carry on.    We have all seen drivers putting on makeup, reading books, or shaving while driving on the interstate. What’s the first thing you do when you get behind the wheel: buckle up or turn on the radio, put on your makeup, drink your coffee? No problemo if we are passengers. The burden is on the driver since he/she controls the vehicle.  We forbid driver’s to drink and drive . Should we also forbid drivers to use a cell phone and drive? Maybe. Depends on the circumstances . The Driver  must take steps to avoid distractions because a few lost seconds can change  a life.

 Legislators are now coping with a new major source of distraction: cell phones. They go everywhere people are. The phone rings or a text message arrives no matter what we are doing or where we are, unless the phone is left behind or turned off. No one wants to do that. How would you like it if a surgeon answered his cell phone during surgery? Is a legislative rule banning texting during surgery necessary? Duh, I don’t think so. 

 So, cell phones are a major new source of distraction. That cannot be denied. There has been a tremendous amount of publicity concerning Texting and driving. The Florida legislature recently banned drivers of school buses and trucks from texting based on claims that texting was just as likely to cause an accident while driving as is alcohol impairment. Other states have followed too. Others think all cell phones should be banned from being used unless they are being used  hands free. These behaviors were not part of our world when cars were invented, and we are as a society now facing a new legal issue which was not around a generation ago.

 I am skeptical that any legislature can, even with huge fines, change human behavior. So, the answer is simple: Come on People: Control your impulse to talk and drive. Turn that cell phone off until the drive is over.

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I recently published  an article concerning the MERS Foreclosure defense.As a follow-up,  this article will discuss the situation where a lender has successfully foreclosed and the borrower is  now concerned about a possible deficiency judgment.  As you know a deficiency occurs when the collateral (a vacant lot, condo, home)  is sold at the Clerk's sale and the sales price is not high enough to pay in full the balance due to the lender.

Keep in mind the deficiency issue is one of collectibility.  The bank can sue the borrower for the deficiency but will have trouble collecting on it unless there are assets.  If there are no assets, its like the Bob Dylan song:  "If you ain't got nothing, you got nothing to lose." Homestead is exempt from a forced sale unless there is a mortgage on it to the lender.

So here are some common questions concerning deficiency judgments.

• For how long after the foreclosure sale does the Bank have a right to decide to go after a deficiency?  Florida cases say that depends.  If the foreclosure sale judgment reserves jurisdiction allowing the court to decide whether to grant a deficiency, then the Bank has one year to come back and ask for the Deficiency Judgment.  If the bank does not do so, the debtor can ask for the case to be dismissed for lack of prosecution. If the foreclosure sale judgment does not reserve jurisdiction the Bank has 5 years from the date of the judgment to start a new case for a deficiency judgment.
• How does homestead property  matter? Depends.  If the homestead property is a new home and the bank has no lien on it then it is exempt under Florida's homestead protection. So even if the bank has an uncollected deficieny judgment  then it is not subject to a forced sale.    The bank can sue the debtor whether he lives in a  homestead or not, but the Bank cannot collect against the homestead unless it has a mortgage.  The easiest way to undertand this is unless the Debtor has waived his right of homestead (which is what a morgage does) then he has homestead protection from debt collection as to that asset.
• What does a Bankruptcy do?  This is a complicated issue which I will leave to a bankruptcy specialist like Scott Spradley in Flagler Beach.  If the debtor files bankruptcy is wipes out all debts inculding deficiency judgments.

Besides the issue of deficiency judgments and collection, there are issues about asset protection, short sales, deeds in lieu of foreclosure, and the tax consequences of a short sale.   An interesting fact I read lately was that between 2000 and 2007 the size of the national mortgage debt on homes in the USA went to 10.5 trillion dollars from $3.5 trillion.  So far, since 2007, the mortgage debt has only gone down to $10.2 trillion.  Somehow we have got to get rid of about $7 trillion in mortgage debt before the housing crisis will be behind us.

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For those who need some legal help but cannot afford to hire a lawyer to represent them, it might be worth while to think about “Doing it Yourself.” Or maybe part of it yourself. There was an story about this in the New York Times recently. This sort of idea may be helpful in many different types of cases, such as divorce or landlord-tenant disputes.    Since I specialize in Personal Injury, this blog will discuss the needs of a client who wants a lawyer to help on part of the case, for example getting it settled.  I call this a la carte legal representation.

The Florida Bar Association allows attorneys to ethically handle legal matters on a limited scope  basis.  See the  Rule 4-1.2 (c). 

How would it work?

•  “Limited scope representation” allows lawyers to unbundle their services and take only part of the case.  
•  Lay persons know they have a tremendous disadvantage due to huge knowledge gaps between themselves and insurance adjusters.  Would it be worth 10% of the settlement for legal representation from an experienced personal injury attorney to be sure you did not settle too cheap? I think so. 
• The lawyer can conduct a conference with the client and agree to do limited work for a much lower fee than if he handled the entire case. The client can collect copies of all the medical records, bills, photographs and accident report. He can provide a summary of  what he has been through.  He can assemble them for the attorney, thus saving himself fees for substantial overhead, time and expense. 
• More than ninety percent of all cases settle for less than $25,000 and in some personal injury law firms the lawyer’s paralegal handles the case anyway. 

Makes sense to me. The quality of the work would be as high as if the attorney handled the whole case.

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Cancellation of an insurance policy is serious business.  It makes it much harder to get new coverage.  Increasing premiums just because of a single claim is also serious.  Both cancellations/nonrenewals and premium increases are governed by Florida laws.

FS 626.9541 contains a list of unfair claims practices which includes:

3 a. Imposing or requesting an additional premium for a policy of motor vehicle liability, personal injury protection, medical payment, or collision insurance or any combination thereof or refusing to renew the policy solely because the insured was involved in a motor vehicle accident unless the insurer's file contains information from which the insurer in good faith determines that the insured was substantially at fault in the accident.

b. An insurer which imposes and collects such a surcharge or which refuses to renew such policy shall, in conjunction with the notice of premium due or notice of nonrenewal, notify the named insured that he or she is entitled to reimbursement of such amount or renewal of the policy under the conditions listed below and will subsequently reimburse him or her or renew the policy, if the named insured demonstrates that the operator involved in the accident was:

(I) Lawfully parked;

(II) Reimbursed by, or on behalf of, a person responsible for the accident or has a judgment against such person;

(III) Struck in the rear by another vehicle headed in the same direction and was not convicted of a moving traffic violation in connection with the accident;

(IV) Hit by a “hit-and-run” driver, if the accident was reported to the proper authorities within 24 hours after discovering the accident;

(V) Not convicted of a moving traffic violation in connection with the accident, but the operator of the other automobile involved in such accident was convicted of a moving traffic violation;

(VI) Finally adjudicated not to be liable by a court of competent jurisdiction;

(VII) In receipt of a traffic citation which was dismissed or nolle prossed; or

(VIII) Not at fault as evidenced by a written statement from the insured establishing facts demonstrating lack of fault which are not rebutted by information in the insurer's file from which the insurer in good faith determines that the insured was substantially at fault.

c. In addition to the other provisions of this subparagraph, an insurer may not fail to renew a policy if the insured has had only one accident in which he or she was at fault within the current 3-year period. However, an insurer may nonrenew a policy for reasons other than accidents in accordance with s. 627.728. This subparagraph does not prohibit nonrenewal of a policy under which the insured has had three or more accidents, regardless of fault, during the most recent 3-year period.

Thus, the insured has major league protections against an insurance company which tries to cancel or non-renew, or which increases its premiums after an accident which the insured was an innocent party to.  Violations like these open the insurance company up to possible punitve damages and attorneys fees.

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Daytona Bike week is around the corner.  Its an exciting time for bikers coming into the area.  Most will leave with great memories.  Experience tells us some will leave with most of their body parts, and some will not leave at all.  Some will lose friends and have damages to their motorcycles.  NHTSA estimates the chances of a fatality on a motorcycle are 30 times higher than in a car.  I recall one biker who had suffered a traumatic castration.  You should have seen the look on his face when he learned there was only $10,000 of insurance.

Out of curiosity I called a Florida agent who offers biker insurance through six major carriers.  Based on what she said, I think there is a knowledge gap about UM (Uninsured or underinsured motorists) coverage.   This whole area of UM and rejections was discussed in another Blog.

Here are some of the highlights of what I found out:

• The agent could not explain the legal differences between UM and HMO/Group coverage
• Bikers think they can skip getting UM when they have a major medical  or HMO policy to cover their medical bills

If the agent doesn't know,  how is a Biker supposed to make an informed decision to buy the UM or not?

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When we were little kids our moms taught us some important lessons.  She did not know it but some of the lessons she was teaching us about included the basics of  foreseeability:  look both ways before crossing the street, don't run while carrying sharp objects like knives or scissors, don't play with fire.  All of these lessons included  the basics of foreseeability.  In each instance we were being warned bad things could happen if we were not careful under the circumstances.  We were taught to foresee, or look ahead.  As we mature we learn more adult lessons about life and human nature until as a "reasonable man" we are expected to know and follow  most of life's little lessons.

There is some confusion and maybe misconception about the law of damages and foreseeability.  Once the Plaintiff has proven the defendant's conduct was a foreseeable cause of  the injury, the Plaintiff is entitled to a verdict for all of his damages which were caused by the negligence, even if they were entirely unforeseeable. In an RSD case, for example, the development of searing pain caused by this horrible condition may not be foreseeable, but the defendant must pay for it if he caused it.   I think some attorneys need to refresh themselves on this rule.  See Silva v Stein, 527 So. 2d 943 (Fla. 3rd DCA 1988). The case is an extremely instructive and important  one clearing up the apples and oranges difference between foreseeablity and liability, and foreseeablity and damages.

The following is an excerpt from Professors Prosser & Keeton  in their 1984 book on the Law of Torts, pg 291-292:

"It is as if a magic circle were drawn about the person, and one who breaks it, even by so much as a cut on the finger, becomes liable for all resulting harm to the person, although it may be death. The defendant is held liable when the defendant's negligence operates upon a concealed physical condition, such as pregnancy, or a latent disease, or susceptibility to disease, to produce consequences which the defendant could not reasonably anticipate. The defendant is held liable for unusual results of personal injuries which are regarded as unforeseeable, such as tuberculosis, paralysis, pneumonia, heart or kidney disease, blood poisoning, cancer, or the loss of hair from fright. The defendant of course is liable only for the extent to which the defendant's conduct has resulted in an aggravation of the pre-existing condition, and not for the condition as it was; but as to the aggravation, foreseeability is not a factor. One of the illustrations which runs through the English cases is that of the plaintiff with the ‘eggshell skull,’ who suffers death where a normal person would have had only a bump on the head; and an obviously related rule is that the defendant who kills another must take the chances, as to damages for the death, that the other has a large income, although the defendant has no reason to expect it."

This rule comes up in final arguments to the jury in cases where one would not expect the consequences of the defendant's negligence to be as great as they turned out. The jury needs a lawyer to explain causation in the context of the injury which the defense is going to argue is being blown out of proportion to the reality.  I have an interesting case I am working on now where my client was rear-ended and suffered a heart attack at the scene.  Other cases I've handled included clients who developed RSD, have had repeat cervical fusions, and various types of mental injuries such as PTSD. 

The lesson is that if the defendant caused the injuries it is no excuse or defense to say that they could not have been anticipated.  You are not expected to be as tough as Arnold Schwarznegger.

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Having had the privilege of representing Bikers (and going to trial for many of  them) who were seriously injured while riding their motorcycles, there are a couple of things that all motorists need to be reminded about.  First, motorcycles are not as easy to see as larger vehicles and second, injuries involving them, are always extremely serious, and include brain damages due to head injuries, death, paralysis and amputations.  A minor case involves severe road burns and/or scarring. I once got a call from an Alabama man whose beautiful young daughter lost a leg while on the back of her friend's motorcycle.  She had promised to stay off his bike when she was allowed to come to Daytona...Because of the severity of injuries, most cases settle with little legal effort for the "policy limits."  This means the at fault driver had so little insurance it was not  even a fight to get.  Bikers ought to consider getting Uninsured Motorists coverage for as large a limit as possible if they continue to ride.

There are two major accident types which cause these injuries: 

• Drivers who make a sudden left turn into and across the path of the Biker, and
• drivers who rear end the bikers.  Rarely do you hear of a biker who turned into the path of an oncoming vehicle.  My biker friends are sober "as a Judge" when going for a ride, have gone to motorcycle school and leave plenty of room to maneuver when on the road.

In my experience, the biggest challenge to getting a fair trial for a Biker is during Jury selection.  In my opinion  jurors are still of the opinion that Bikers are devil may care, reckless and thrill seekers, even willing to take life and limb risks to ride their bikes.  People who own motorcycles are usually knocked off by the defense using their peremptory challenges.  To prejudiced or ignorant jurors hearing a motorcycle injury case, it makes no difference that the bikers are on the way to work at 7:00  in the morning, or run over from behind by a drunk driver.

We live in a part of Florida where Bike week is celebrated twice a year, once in March and one in October.  The number of Bikers who plan annual trips to attend Daytona is well  over 100,000.  They spend hundreds of millions of dollars locally and deserve our respect.  Many are professional doctors, lawyers, accountants, and own and operate successful businesses out of state.  It galls me to see ads by attorneys who patronize bikers and advertise proudly picture their motorcycles as a means to say "We are Bikers too.  Hire us."   They remind me of the Kodiak bears in Alaska trying to snare salmon during the annual salmon runs.

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