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

There is an interesting story here about how Toyota hired former staff members from NHTSA  the federal branch of government charged with Highway safety.  They then turned around and used their influence and knowledge  to bury or limit investigations into  known problems with Toyota's cars.  The report says that two former NHTSA agency staffers helped bury four open investigations into accelerators which were sticking on  some Toyota 2002-2003 Camrys and Solaras.

If you look at the NHTSA website it is now offering a Consumer Advisory  for Toyota owners.

This information was discovered as a result of a Michigan lawsuit.  Once again the legal system has shown its ability to get to the truth, and expose glaring problems with enforcement when left to the bureaucrats.  I am reminded of a similar problem which was "uncovered" regarding the lack of responsibility in regards to the safety practices of regional air carriers like Colgan Air . Families of those killed in the crash of Flight 3407 are now going after the airline for damages.

Families of those killed due to bad Toyotas will soon be following in their tracks.  I wonder how many Toyotas have crashed because of bad brakes and accelerators?

The unfortunate truth about these types of disclosures is that the loss of 27 Billion in stock value to investors at Toyota because of its defective products, bad brakes, sticking accelerators, will be the catalyst to product improvement, and not the loss of lives and mangled bodies.  What about the loss in vehicle market value to owners? Once again the same old theme arises in Corporate America: Profit over People.

In my opinion a Product Recall like the recent  ones involving Toyota vehicles is as close to finding the "smoking gun" as possible.  It is very strong evidence by the manufacturer that its product is defective for some reason.  It is what is called in law an "admission against interest" and is like a legal confession.  Here is a good website for recent recall info of all kinds.

No wonder our government is not trusted.  Trying to keep big corporations from hiring government employees to grease the skids is not working.  Big Business is too powerful and until the people elect representatives willing to stop this, it will keep getting worse.

 PS.  Since writing the article above, criminal actions have been started against TOYOTA and a rash of lawsuits have been filed.  See the update here.

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Daytona Bike Week is just around the corner.  Here is some more timely and hopefully helpful info for passengers during bike week.

When  a passenger on a motorcycle is injured, usually in a left turn type accident,  he has two possible claims: one is against the driver/operator of the motorcycle and the other is against the other driver who turned in front of the oncoming motorcycle.  These types of accidents frequently occur at a traffic light when the motorcycle is in the outside lane, and is obscured by other vehicles from view by the turning driver . 

If  it is a one vehicle crash,  then the passenger has a claim against the driver.  There was a tragic story about a woman who was left for dead on the road by a motorcycle driver.  Her estate would have a claim against him. The driver was sent to prison for five years.

The classic example of this type of accident is discussed in Zimmerman v  Langlais.  There, the minor passenger on a motorcycle was injured when the motorcycle he was a passenger on was going 50 mph in the outside lane and went through a "yellow" light at an intersection.  The accident happened at night.  The car driver was waiting under the light  to turn left and could not see the oncoming motorcycle because it was obscured by cars in the inside lane.  The car driver turned left into the motorcycle when the light turned red.  The jury found the left turning driver not at fault.

The Zimmerman case is a good example of the rule that evidence of a traffic violation (running a red light) is only evidence of negligence, not negligence "per se."  So,  jury could exonerate the left turning driver  even though she ran a light and caused injuries.  As so often happens in  left turn cases, the entire blame was placed on the motorcyclist by the jury.

Insurance companies know these types of accident often happen.  They sometimes exclude any claims by passengers against the driver/operator and/or the insurance company.  The exclusion is not against the public policy and is therefor legitimate under Florida law.Yakelwicz v. Barnes.

My recommendation: ride with a safe driver who has plenty of insurance.  If he has none, be sure to get uninsured motorists coverage.  It protects you if your driver has none and is at fault.  I discussed these issues in my previous blogs here and here.

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Historically when a settlement involving a client with medicare occured, the plaintiff's attorney would negotiate the amount of the payback due medicare.  It took months of  haggling with a bureaucrat about  whether the bills paid by Medicare were related to the injury settlement.  The process may have recently become much more complex and harder to navigate..

Since January 1, 2010 a new  law has gone into effect.  The law is intended to make sure Medicare is the payor of last resort, and that medicare gets paid off the top, if it has been billed for accident related medicals. The new reporting requirements, passed as part of the Medicare, Medicaid and SCHIP Extension Act of 2007, require insurance companies to provide information on settlements, including the name, address and phone number of the plaintiff and his or her attorney.

There are a lot of questions to be answered by this legislation.  What about future medicare payments for treatment of accident related injuries?  What about the client who was not a medicare patient when the settlement occured, but will be entering Medicare later on?  There is a good overview of this issue in the Wisconsin law Journal here.  In the interview, plaintiff's attorney Robert Janssen is quoted as saying:

“The prudent course of action is to keep Medicare’s interest protected by creating a bank account for accident related, future medical bills that would typically be paid by Medicare,” said Janssen. “This would be the case even though no formal Medicare set-aside is in place.”

I think plaintiffs attorneys representing medicare clients and those who are likely to start getting Medicare benefits before the case is settled ought to provide the insurance adjusters with a heads up as soon as possible  so they can timely notify Medicare of  the pending action.  Or, Plaintiff's counsel can do it just to make sure it is done. 

We sure don't want to get a case settled and then belatedly find out Medicare has not been notified yet. Based on this article, the client's rights to future medicare may be cut off unless this is handled properly, and that would be a nightmare for them and the attorney who handled their claim.

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There is a lot of stuff that doesn't come up at a well tried case.  The court depends on trial attorneys to give it a heads up on such things, and knows there is a lot of dirty laundry out there.  As a matter of fact everyone has some.  It's not surprising then, that the opposition will hang it out to dry in front of the jury if it can. How does an attorney prevent the dirty laundry from coming up at trial?  By getting the Court to enter an Order granting a Motion in Limine. The motion needs to be tailor made to each case.

Trial attorneys use a standard motion which has lots of categories of things they don't want the Defense to bring up during trial. Here is a list of a few things that are typical in a motion in limine I don't want the Jury to hear about:

• That there has been a settlement with a prior defendant.  This is the classic empty chair problem.  The Court should prohibit any mention or suggestion of such settlements, or the receipt of such funds by Plaintiff, and should prohibit any evidence of same, pursuant to Section 768.041(3), Florida Statutes. See Leisure Group, Inc. v. Wiliams, 351 So. 2d 374 (Fla. 2d DCA 1977), Madden v. Rodovich, 367 So. 2d 1083 (Fla. 4th DCA 1979), Black v. Montgomery Elevator Co., 581 So. 2d 624 (Fla. 5th DCA 1991), Samick Corp. v. Jackson, 645 So. 2d 1095 (4th DCA 1994).
• Receipt of Welfare, Social Security or Disability Benefits. This is the one that makes jurors think the Plaintiff is a deadbeat if he is on welfare.  Florida law prohibits the admission into evidence of the fact that a party is receiving Social Security Disability benefits, Winston Towers 100 Association, Inc. v. DeCarlo, 481 So. 2d 1261 (Fla. 3d DCA 1986).
• Medicare Benefits.  This one is self explanatory.  Since Plaintiff has through his payroll deductions earned Medicare benefits, they are not collateral sources and Plaintiff's right to such should not be mentioned in the presence of the jury. Winston Towers One Hundred Assn. v. De Carlo, 481 So. 2d 1261 (Fla. 3rd DCA 1986).
• Worker's Compensation.   Jurors do not want to allow the plaintiff to double dip.  Since worker's comp companies get a lot of their money back after a verdict, it is improper to allow statements of payments received from Worker's Compensation as a collateral source into evidence, as such compensation should be excluded as prejudicial and in violation of Florida Statute §672.7372(3), Kreitz v. Thomas, 422 So. 2d 1051 (4 DCA Fla. 1982).
• Prior Claims/Lawsuits.   This one argues the plaintiff is suit crazy.  If the defense attempts to show the prior claims in order to argue Plaintiff is likely to sue every time he gets the opportunity, i.e. that he is a litigious person, that is wholly improper as an impermissible attack on the plaintiff's character. The law will not allow one to argue the exercise of a right is evidence of a wrong. Zabner v. Howard Johnsons, 227 So. 2d 543 (Fla. 4th DCA 1969), Colvin v. Williams, 564 So. 2d 1249 (Fla. 4th DCA 1990).
• Traffic Tickets. As I wrote about in a previous blog, the Defendant and witnesses called on their behalf or their attorneys of record, should be ordered not to disclose or mention in the presence of the jury, any evidence as to the issuance of traffic citations or lack thereof. Elsass v. Hankey, 662 So. 2d 392 (Fla. 5th DCA 1995).
• Collateral Sources. Sometimes insurance companies pay medical bills and get  a lien on the recovery if there is one.  If the jury hears that insurance paid, they will usually refuse to give money for the bills because they do not want to allow double recovery.  But if the plaintiff has to pay the insurance back, it is not double recovery.  So an order should be entered so that  when the Plaintiff has received collateral sources of insurance benefits as that term is defined by F.S. §768.76(2)(a) for which insurers have retained the right of subrogation. the jury is not told of the lien and payment.
• Secondary Gain.  The opinion of  an ordinary doctor that the Plaintiff has "law suit" pain, or is faking his pain in order to get a settlement should not be allowed. In Mills v. Red Wing Carriers, Inc., 127 So.2d 453, the Florida Second District said:

"The opinion of an expert should be excluded where the facts testified to are of a kind that do not require any special knowledge or experience in order to form a conclusion, or are of such character that they may be presumed to be within the common experience of all men moving in ordinary walks of life." Mills, page 456.

Having a trial attorney to stand by you at trial is one thing.  Having one that knows how to keep out irrelevant and damaging evidence is priceless.

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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. For example:  "This is the case of Robert Smith vs Sam Jones and Allstate Insurance Company." By naming an Insurance company the Jurors knew Sam Jones had insurance.  The insurance companies were convinced in 1976 that verdicts were inflated when Jurors knew there was insurance so the insurance industry lobbied  the Florida legislature to make some changes. 

Ever since 1976 in Florida a lawyer cannot join 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. Very few defendants have assets so in almost every Tort case, you can be sure there is insurance behind the defendant. A plaintiffs attorney will not take a case unless he can collect his fees and costs.

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 results in two sets of rules, one for insurance companies and one for all others, and guess who wins?  The insurance companies, of course.  Here is what one Florida appellate court said about this heads we win, tails you lose situation:

The inequity is that when a plaintiff, such as Barnes, makes a successful offer of judgment, its recovery of attorney's fees is limited to the defendant. The insurance carrier thus suffers no risk as to the award of attorney's fees.This imbalance has been the comment of at least one appellate court judge, but nothing has changed.

In years past, plaintiffs had opposed having to pay the nonparty insurance carrier's costs under the offer of judgment statute. In holding the payment of costs advanced by one other than the named party to be appropriate, the Florida Supreme Court stated: “Failure to allow a cost award to a prevailing defendant who is insured, because of the fact of insurance coverage alone, gives the plaintiff and/or the plaintiff's insurance carrier, an undeserved windfall.” Aspen v. Bayless, 564 So.2d 1081, 1082, 1083 (Fla.1990).

 That was almost 40 years ago, and the Florida legislature has not addressed the inequity yet.  The legislators should be ashamed of themselves.

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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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