Written and Edited by Hinda Klein, Esq.

Daniel J. Simpson, Esq. Jacqueline M. Gregory, Esq. Stephanie A. Robinson, Esq.

Carlos D. Cabrera, Esq. Jessika Lorie, Esq.

Kasey L. Prato, Esq.

SECOND DISTRICT HOLDS THAT PIP CARRIERS CANNOT CAP REIMBURSEMENT BY USING THE MEDICARE HOSPI-TAL OUTPATIENT PROSPECTIVE PAYMENT SYSTEM (OPPS). In Nationwide Mut. Fire Ins. Co. v. AFO Imaging, 36 Fla. L. Weekly D1463 (Fla. 2nd DCA, July 6, 2011), the Second District Court of Appeal held that the phrase, “allowable amount under the participating physicians schedule of Medicare Part B”, under the Florida No-Fault Statute, Fla. Stat. § 627.736(5)(a)(2)(f) and (5)(a)(3), does not include amounts payable under the OPPS fee schedule because it is “an entirely separate component of the Medicare Part B program from the participating physicians schedule.” The Second District held that it would have to ignore the phrase “under the par-ticipating physicians schedule,” in order to read the provision in the manner suggested by the carriers. Accordingly, the District Court held that under subsections (5)(a)(2)(f) and (5)(a)(3), a PIP carrier cannot cap reimburse-ment by using OPPS. The question remains, however, whether this case will have any weight with regard to a PIP carrier’s statutory right to pay what is “reasonable” under subsections (1)(a) and (5)(a)(1).

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Liability Case Law Updates

SEPTEMBER/OCTOBER 2011 VOLUME 13, NUMBER 3

Law Bulletin from

In This Issue

Page 1 Liability Case Law Updates

Page 7

Focus on our PIP Department

Page 8

Workers’ Compensation Case Law Updates

Page 12

Successes

Page 15 Announcements

****Reminder****

Effective October 1, 2011, the statutory interest rate is 4.75% per annum. The interest rate is now set each quarter and a new rate will go into effect January 1, 2012.

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Website address www.conroysimberg.com

Email Address csg@conroysimberg.com

HOUSEHOLD EXCLUSION IN AUTOMO-BILE LIABILITY POLICY IS UNAMBIGU-OUS IN EXCLUDING CLAIMS MADE BY MEMBERS OF THE INSURED OR PERMIS-SIVE USERS’ HOUSEHOLD. In State Farm Mut. Auto. Ins. Co. v. Menendez, 36 Fla. L. Weekly S469 (Fla., Aug. 25, 2011), Menendez’s auto policy contained a household exclusion for “any bodily injury to. . . any insured or any member of an insured’s family residing in the insured’s household”. Menendez allowed her grand-daughter, Fabiola, to drive her vehicle, when she was involved in an acci-dent that resulted in injuries to Menendez, Fabiola and her parents, which were passengers in the vehi-cle. State Farm argued that, because Fabiola was a permissive user of Menendez’s vehicle, she was an insured under the policy and because she resided with her parents in the same household, there was no li-ability coverage for her or her parents’ injuries. In contrast, Ms. Menendez argued that the word “insured” in the exclusion only applied to Menendez, not permissive users of her vehicle. The trial court granted summary judgment in favor of Ms. Menendez and the Third District affirmed on the grounds that the household exclusion was ambiguous and should be construed in favor of coverage. State Farm sought review from the Supreme Court on the grounds that the Third District’s decision expressly and directly con-flicted with Linehan v. Alkhabbaz, 398 So. 2d 989 (Fla. 4th DCA 1981), which held that a similar house-hold exclusion provision barred coverage for the in-jury claims of a member of the permissive user’s household. The Supreme Court held that the house-hold exclusion was unambiguous and applicable to the facts of this case because the exclusion's reference to family members “residing in the insured's house-hold” unambiguously encompassed family members residing in the household of any insured, which in-cluded a permissive user.

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PROPOSAL FOR SETTLEMENT THAT DID NOT SUMMARIZE THE TERMS OF, OR ATTACH, THE RELEASE MAY BE VALID, WHERE THERE ARE NO OTHER CLAIMS AND NO OTHER POTENTIALLY LIABLE RELATED PARTIES.

In Jones v. Publix Supermarkets, Inc., 36 Fla. L. Weekly D1966a (Fla. 4th DCA, Sept. 7, 2011), the Fourth District held a proposal for settlement that did not contain a summary of the terms of the release or attach the release, was valid under the specific facts of this case. The Fourth District determined that, be-cause there were no other claims and no other poten-tially liable related parties, the reference to the re-lease in the proposal for settlement was sufficiently clear such that the recipient could have fully evalu-ated the terms and conditions. However, the Court also noted that the preferred practice is to set forth the terms of a release with particularity, either within the body of the proposal or by attaching the release to the proposal.

DEFENDANT MAY BE THE PREVAILING PARTY ENTITLED TO ATTORNEY’S FEES WHERE THE PLAINTIFF’S CASE IS DIS-MISSED WITHOUT PREJUDICE.

In Henn v. Ultrasmith Racing, LLC, 36 Fla. L. Weekly D1888 (Fla. 4th DCA, Aug. 24, 2011), Henn rented a race car from Ultrasmith Racing and caused damage to it. After two years of litigation, Ultrasmith’s attor-ney withdrew as counsel. Thereafter, the trial court set a mandatory status conference requiring Ultras-mith to appear with counsel or be subject to sanctions, including dismissal. After the court rescheduled the conference, Ultrasmith appeared without counsel and attempted to file a notice of voluntary dismissal but the trial court dismissed the case without prejudice. Thereafter, Henn filed a motion for attorney’s fees on the basis that he was the prevailing party under the rental contract. The trial court denied fees because the dismissal was without prejudice and the case could be refiled. The Fourth District reversed, holding that the trial court erred in not awarding Henn fees even though there had been no adjudication on the merits.

SECOND DISTRICT HELD THAT TRIAL COURT COULD NOT DIRECT PHYSICIAN WHO PERFORMED COMPULSORY MEDI-CAL EXAMINATION (CME) TO ANSWER QUESTIONS ABOUT CME REPORTS IN OTHER CASES.

In Crowley v. Lamming, 66 So. 2d 355 (Fla. 2nd DCA 2011), the plaintiff sought to compel the physician who performed the CME to bring to his deposition, and answer questions about, CME reports he pre-pared in the preceding three years. The trial court also compelled the physician to answer questions about the reports. The defendants sought certiorari review of that order and the Second District quashed the court’s order. The Second District held that, be-fore private health information of nonparties could be disclosed, the plaintiff was required to have complied with Florida Statute § 456.057(7)(a)(3), which re-quires notice to the patients by the party seeking such records. Because plaintiff failed to provide such no-tice, the Second District quashed the trial court’s order compelling the physician to produce the documents and answer questions about them. Although plaintiff argued that he could not have provided the required notice to the nonparties because the physician refused to provide contact information for the nonparties, the Second District noted that plaintiff failed to file a mo-tion to compel the physician to produce that informa-tion.

WORKER PERFORMING TRUCKING SER-VICES AT A ROAD CONSTRUCTION SITE WAS NOT A STATUTORY EMPLOYEE BE-CAUSE WORK HE PERFORMED WAS NOT IN THE “CONSTRUCTION INDUS-TRY” AND EMPLOYER AND CONTRAC-TOR WERE NOT IMMUNE FROM CIVIL SUIT.

In Lovering v. Nickerson, 36 Fla. L. Weekly D1896 (Fla. 5th DCA, Aug. 26, 2011), a contractor was per-forming construction work on the Florida Turnpike, where its employee, Nickerson operated heavy equipment. The contractor subcontracted with another company to provide trucking services to relocate sec-tions of barrier walls. That subcontractor then con-tracted with another trucking company, who in turn,

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leased a truck and hired Lovering to operate the truck. While Nickerson was loading the barrier walls onto Lovering’s truck, a portion of the wall fell on Lovering causing serious injuries. Lovering filed suit against Nickerson and his employer and they de-fended on the grounds that they were entitled to workers’ compensation immunity because Lovering was a “statutory employee”. The trial court granted summary judgment in favor of Nickerson and his em-ployer’s favor but the Fifth District reversed, holding that Lovering was not working or performing services in the “construction industry” and they were not im-mune from suit under F.S. 440.10.

Although the workers’ compensation statute provides immunity to employers/contractors for all employees, subcontractors, and subcontractor’s employees work-ing or performing services on a construction site, the Fifth District determined that Lovering’s services at the construction site were not “construction industry” ser-vices, as that term is defined in Fla. Stat. § 440.02(8) (“for-profit activities involving any building, clearing, filling, excavation, or substantial improvement in the size or use of any structure or the appearance of any land”). While the Fifth District did not explain why Lovering was not performing services in the “construction industry” at the time of his accident, this decision shows that immunity will not be afforded to workers simply because they are performing services at a construction site. The appellate court determined that the mere transportation of barrier walls from one location to another was not a service within the defini-tion of “construction industry”. Therefore, Nickerson and his employer were not immune from Lovering’s negligence claims.

MERE TITLE TO A VEHICLE DOES NOT RENDER TITLE-HOLDER VICARIOUSLY LIABLE UNDER THE DANGEROUS IN-STRUMENTALITY DOCTRINE; ONLY BENEFICIAL OWNERSHIP TRIGGERS LI-ABILITY. The Fifth District Court of Appeal in Bowen v. Taylor-Christenson, 36 Fla. L. Weekly D1898 (Fla. 5th DCA, Aug. 26, 2011), held that negligent driver’s ex-husband was not vicariously liable under the danger-ous instrumentality doctrine because, although his name was on the title to the vehicle, he possessed no

beneficial ownership interest at the time of the acci-dent. The Fifth District noted that, although the ex-husband purchased the car in his and his ex-wife’s name, he intended to gift it to the ex-wife. As a re-sult, his intent coupled with his relinquishment of all access, use and control of the car was sufficient to divest him of beneficial ownership in the vehicle and he could not be held vicariously liable for his ex-wife’s negligence in operating the vehicle.

APPRAISER WHO DOES NOT CHARGE FOR APPRAISAL MAY BE DEEMED TO HAVE A SUFFICIENT PECUNIARY INTER-EST IN THE APPRAISAL SO AS TO SUP-PORT A CLAIM FOR NEGLIGENT MIS-REPRESENTATION. In Blumstein v. Sports Immortals, Inc., 67 So. 3d 437 (Fla. 4th DCA 2011), the Fourth District reversed the trial court’s order dismissing the plaintiff’s claim for failure to state a cause of action. Blumstein obtained an appraisal of certain sports memorabilia from Sports Immortals, which he relied upon in order to make a loan to a third party. Blumstein specifically told Sports Immortals that it was obtaining the ap-praisal for the specific purpose of making a loan against the memorabilia. Sports Immortals did not charge a fee for the service, in the hopes the relation-ship might lead to future business. Blumstein made the loan, but when it defaulted, another appraisal was done which revealed that some of the items and sig-natures were not authentic. Blumstein sued Sports Im-mortals for negligent misrepresentation. The trial court dismissed the complaint but the Fourth District reversed, holding that Blumstein asserted a cause of action for negligent misrepresentation because Sports Immortals had a pecuniary interest in the transaction meriting the imposition of a duty of care in obtaining and communicating the information. Even though no consideration was paid for the appraisal, since Sports Immortals was in the business of supplying a certain type of information, it had the requisite pecuniary interest to support a claim.

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FOURTH DISTRICT CERTIFIES QUESTION TO FLORIDA SUPREME COURT ON WHETHER IT CAN REVIEW NONFINAL ORDERS THAT DENIED CLAIMS OF SOV-EREIGN IMMUNITY. In TBE Group, Inc. v. Banerjee, 36 Fla. L. Weekly D1813 (Fla. 4th DCA, Aug. 17, 2011), the Fourth Dis-trict dismissed a petition for writ of certiorari chal-lenging a nonfinal order denying a claim of sovereign immunity by a corporate agent of the state. How-ever, it certified the following question to the Su-preme Court as one of great public importance: “Whether review of the denial of a motion for sum-mary judgment, based on a claim of immunity as an agent of the state under section 768.28(9)(a) & (10)(e), without implicating the discretionary functions of public officials, should await the entry of a final judg-ment in the trial court?” Although the Fourth District held that it dismissed the petition on the grounds that nonfinal orders denying claims of sovereign immunity under Florida Statute § 768.28 are not reviewable, it chose to certify the question because the Supreme Court recently accepted jurisdiction of a similar certi-fied question concerning a claim of individual immu-nity.

INJURED THIRD PARTY MAY NOT BRING A DECLARATORY JUDGMENT ACTION AGAINST AN INSURER BEFORE OBTAINING A SETTLEMENT WITH OR A VERDICT AGAINST INSURED. In Southern Owners Ins. Co. v. Mathieu, 36 Fla. L. Weekly D1710 (Fla. 2nd DCA, Aug. 5, 2011), a homeowner sued contractors and filed a separate action for declaratory relief against one of the con-tractor’s insurers for coverage. The carrier moved to dismiss the declaratory relief action on the grounds the action was premature under the non-joinder stat-ute, Fla. Stat. § 627.4136. The trial court denied the motion on the ground that a declaratory judgment action was not barred because the purpose of the non-joinder statute was to provide a mechanism to enforce settlements and because the declaratory judgment statutes were specifically designed to allow litigants to clarify their rights. The carrier petitioned the Second District Court of Appeal for review of the nonfinal order. In quashing the trial court’s order, the

Second District noted that the non-joinder statute ex-pressly provides that any cause of action against an insurance carrier does not accrue until a settlement or verdict has been obtained and it did not matter that the claimant sued for declaratory judgment and not for breach of contract.

STATE AGENCY HELD TO BE IMMUNE FROM TORT LIABILITY ARISING OUT OF PLANNING-LEVEL FUNCTIONS RELAT-ING TO ROADWAY PROJECT DESIGN.

In Florida Dept. of Transp. v. City of Pembroke Pines, 36 Fla. L. Weekly D1759 (Fla. 4th DCA, Aug. 10, 2011), a wrongful death action was filed against the FDOT after a police office was killed in a car acci-dent in which his car hit a median, rolled over and hit a palm tree. The Estate alleged that the FDOT’S neg-ligently designed median ultimately caused the roll-over. At trial, the court denied FDOT’S directed ver-dict motion on immunity grounds and the jury found that FDOT was 15% at fault. On appeal, the Fourth District reversed and held that the decision to build or change a road and all determinations inherent in such a decision are judgmental, planning-level decisions, in which the state is afforded sovereign immunity. Al-though the plaintiff argued that FDOT’S negligence was in approving the design plans that called for me-dian curbs that were against prevailing design stan-dards, and not in making the decision to change the road, the Fourth District held that design defects in-herent in the overall plan are also to be afforded sovereign immunity.

THIRD DISTRICT QUASHES CIRCUIT-APPELLATE COURT’S ORDER DENYING APPELLATE FEES TO INSURED THAT PREVAILED AGAINST CARRIER. The Third District Court of Appeal, in Ramirez v. United Auto. Ins. Co., 36 Fla. L. Weekly D1823 (Fla. 3d DCA, Aug. 17, 2011), granted certiorari review of an order from the appellate-circuit court denying an insured appellate attorney’s fees when the insured prevailed on appeal. The Third District noted that the appellate-circuit court’s order failed to apply the cor-rect law and is the very exemplar of a miscarriage of justice warranting review. In addition, the Third Dis-trict noted that, because the order denying appellate

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fees was the first ruling on the question, that its review was not second tier review, but rather first tier appel-late review.

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PIP Department

Look around at other defense firms and you'll notice that Personal Injury Protection (PIP) cases are assigned to attorneys with little experience. Why not? The most a plaintiff or provider can recover is $10,000.00 under most PIP policies. We understand that the problem is not so much the PIP benefits as it is the exposure to plaintiffs' attorneys' fees and for that reason, our PIP attorneys are dedicated to PIP practice. The PIP department in South Florida is headed by Edward N. Winitz, who has 39 years experience. Mr. Winitz has a Master of Laws in Law and Medicine and served as an adjunct professor at Nova Southeastern University Law School for eight years. In 1992, Mr. Winitz was asked to handle PIP defense for the first time. He has now reviewed or handled over 10,000 PIP files. He and the other attorneys in South Florida routinely analyze PIP lawsuits, take depositions, prepare and argue dispositive motions and defend insurers in trial. Our other PIP attorneys have been practicing from two to ten years and include Rachel Minetree who has been practicing PIP litigation exclusively for the last ten years and Melissa McDavitt for the last four years. Other PIP attorneys include Scott Wachholder and Katherine Moon, both of whom have handled only PIP litigation since law school graduation. Our division is currently in the process of adding more attorneys and paralegals to meet the growing demand of PIP litigation. Because all our offices throughout Florida handle PIP litigation, we work closely with each of our attorneys in our other offices sharing strategies and responding to new case law.

Focus Feature

Edward N. Winitz EDUCATION: B.B.A., Temple University

J.D., University of Toledo College of Law

L.L.M., Case Western Reserve University

BAR ADMISSIONS: Pennsylvania Bar; 1972

The Florida Bar; 1973

Washington, D.C. Bar; 1975

COURTS ADMISSIONS: U.S. Supreme Court

U.S. District Courts, Eastern District of Pennsylvania, Southern and Middle Districts of Florida

U.S. Court of Appeals, Fifth and Eleventh Circuits

THE TERM “ARIS ING OUT OF” NECESSARILY REQUIRES THAT THE INJURY BE CONNECTED TO THE EMPLOYMENT, BE CAUSED BY A RISK INCIDENT TO OR CONNECTED TO THE WORKPLACE, OR FLOW FROM THE EMPLOYER. A PURELY PERSONAL MISSION, HAVING NO CONNECTION TO WORK, IS NOT COMPENSABLE. Sentry Insurance Company and Express Script, Inc. v. Leon Hamlin, 36 Fla. L. Weekly D2100 (Fla. 1st DCA, Sept. 22, 2011). Herein, the First District Court of Appeals specifically addressed the first part of the coverage formula, “arising out of work performed” as set forth in section 440.09, Florida Statutes (2008).

There was no dispute that the Claimant was injured when he attempted to retrieve personal property, specifically his personal bills and school textbooks, from a car which was being repossessed from his employer’s parking lot. The tow truck apparently dragged the Claimant, and ran him over, causing injuries. This entire episode took place within a 15 to 20 minute time period. The Claimant, who was allowed to take two paid 15 minute breaks per day, had not yet taken his break and was being paid at the time of the incident. The parking lot was used exclusively by the Employer and was monitored by security guards. The Claimant was not disciplined or sanctioned by his employer for going into the parking lot to retrieve these personal items.

The Court first looked at the phrase “arising out of” pertaining to occupational causation under section 440.02(36), noting that a condition is considered to “arise out of employment” when the employment necessarily exposes a claimant to conditions which substantially contribute to the risk of injury and to which the claimant would not normally be exposed to during his life outside of employment. “Arising out of” addresses the work connection. To “arise out of” the work performed, the injury must (1) be causally connected to the employment; (2) have its origin in some risk incident to or connected to the employment; or (3) flow from the employment as a natural consequence.

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With respect to the coverage formula outlined in section 440.09(1), the Court pointed out that the “arising out of” language controls or modifies the phrases “course and scope of employment” and “work performed.” In other words, Chapter 440 does not cover an accident resulting in injury which does not arise out of, but does occur within the course and scope of employment.

The Court rejected the Claimant’s argument that the “premises rule” applies, noting that under such cases, a claimant is engaged in some activity related to work, such as getting tools, entering the work place or picking up a pay check. As to the paid break type cases, the question is generally resolved in favor of a claimant because there is no substantial deviation from work. There must be some contributing factor from the employment before coverage can be found. In a nutshell, regardless of whether the Claimant was injured on the premises during work hours, a necessary inquiry remained whether the Claimant’s accident arose out of a risk incidental to work - whether a work risk somehow caused or contributed to the injury. Here, because the accident did not “arise out of work performed” in the course and scope of employment it was not deemed to be compensable.

The Court also rejected the Claimant’s argument that the “personal comfort” rule allowed a finding of compensability, noting that he misconstrued the rule. Every “personal comfort” case accepted as compensable has met all three prongs: (1) the activity has been a traditional or routine part of the work place experience, i.e., is incidental to work; (2) the employee’s participation in activity of this type has been held to benefit the employer by producing a refreshed employee; and (3) the injury results from either a work created risk or a neutral risk. In the instant case, the Claimant failed to meet, at a minimum, the first and third prongs; and arguably the second prong as well. He was not ministering to a traditional act of personal comfort such as eating, smoking or taking a restroom break; rather his accident resulted from him getting dragged by a tow truck. Furthermore, it is not the type of activity normally associated with creating a “refreshed”

employee. The Court maintained that the Claimant was carrying out a mission that was purely personal and not related to work, incidentally or otherwise.

Lastly, the Claimant argued that his actions could be construed as an emergency undertaking as covered by section 440.092(3), otherwise known as the “tipsy coachman” rule. In doing so, the Court recognized the principle that when work places an individual in a position to observe the endangerment of property or people, such as an attempted theft or assault, the “ordinary standards of humanity” may motivate an individual to take action. The “emergency” must arise in a situation that would be objectively recognized by others as an emergency requiring similar action be taken as that undertaken by the Claimant. Here, the normal “standards of humanity” would not dictate the action he took. There was no evidence of an objective emergency; nor was there any evidence of a subjective belief by the Claimant that the recovery effort was in response to an emergency. There was no evidence produced that established that work created or caused his exposure to an “emergency” circumstance requiring his response.

The Court concluded, stating that because the Claimant was on a purely personal mission having no relationship to work, he was unable to demonstrate that he suffered an accidental compensable injury arising out of a risk of his employment.

IN MANAGED CARE CLAIMS, THE M A N A G E D C A R E A R R A N G E M E N T GOVERNS THE PROVISION OF MEDICAL BENEFITS.

Diversified Maintenance Systems, Inc. v. Fuerte, 56 So.3d 856 (Fla. 1st DCA 2011). The Claimant requested an alternate primary care physician under the Managed Care Arrangement. The Carrier timely agreed to authorize one of three PCPs whose names it provided to the Claimant. The Claimant did not like the choices and filed a Petition for Benefits seeking to choose a PCP from the multiple PCPs listed in network. The JCC awarded such authorization and the Carrier appealed. The First DCA reversed the Order noting that the terms of the Managed Care Arrangement governed resolution of the petition. The Carrier did not did not deny treatment; rather it limited the

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Claimant’s choice of provider in a manner prescribed by the Managed Care Arrangement.

BY ASSERTING THE AFFIRMATIVE FRAUD DEFENSE, A CARRIER PUTS COMPENSABILITY AT ISSUE. THUS, WHERE A CLAIMANT SUCCESSFULLY D E F E A T S T H E F R A U D D E F E N S E , ATTORNEY’S FEES ARE DUE. Carillo v. Case Engineering, Inc., 53 So.3d 1214 (Fla. 1st DCA 2011). The Claimant suffered a compensable claim in 1996. In 2010, he successfully defended against a Fraud Defense asserted by the Employer/Carrier, although the JCC denied his claims for PTD, TTD, attorney’s fees, interest, and costs. Further, the JCC ordered that he pay taxable costs to his former employer. The First DCA reversed and remanded the award of prevailing costs and the denial of attorney’s fees. In doing so, the Court noted that the prevailing party costs award in favor of the Employer/Carrier was reversed because the Workers’ Compensation Act in effect on the date of the accident (1996) did not authorize such an award. As to the attorney’s fees and costs, the Court noted that by setting up a Fraud Defense, the Employer/Carrier put compensability at issue, at a time where the Claimant was actually receiving palliative care otherwise not at issue. Section 440.34(3)(c), Florida Statutes (1995) entitles a claimant to a reasonable attorney’s fee from a carrier or employer in a proceeding where a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability.

COSTS PURSUANT TO 440 .34(3) ALLOWS FOR THE PREVAILING PARTY, NOT JUST THE CLAIMANT TO RECOVER A L L R E A S O N A B L E C O S T S O F LITIGATION. Punsky v. Clay County Board of County Commissioners, 36 Fla. L. Weekly D688 (Fla. 1st DCA, March 31, 2011). The Claimant herein challenged the JCC's order awarding prevailing party costs to the E/C pursuant to section 440.34(3), Florida

Statutes. The First DCA affirmed the JCC's award of costs as provided by section 440.34(3) which allows the prevailing party to be reimbursed all reasonable costs of litigation. In doing so, the First District rejected all the statutory arguments presented by the Claimant on appeal. The Court specifically rejected the Claimant's contentions that sections 440.19(6), 440.24(4) and 440.30 limited the amount of costs and/or restricted the award of costs against a Claimant in workers' compensation matters. The Court noted that 440.19(6) only applies when an E/C seeks payment of costs in an action brought (as an alternative to the workers’ compensation claim) either at law or in admiralty. The Court also found that 440.24(4) did not apply in the present case as this section addresses enforcement and sanctions.

The Claimant’s second point on appeal also challenged the award of costs on the grounds that sections 440.13(5) and 440.30, Florida Statutes (2004), control when awarding costs against the Claimant and thus override section 440.34(3). The First DCA rejected the Claimant’s argument as section 440.13(5)(a) addresses only independent medical examinations and sets out the circumstances under which a claimant may obtain reimbursement should the opinion of the Claimant’s independent medical examiner be relied upon in determining the Claimant’s course of treatment. The Court noted that this section did not impact the E/C’s entitlement to reimbursement of reasonable costs when the E/C is the prevailing party. Lastly, with respect to section 440.30, the Court pointed out that this section permits fees charged by court reporters and witnesses to be included and/or to “be taxed as costs and recovered by the claimant, if successful in ... workers’ compensation proceedings.” In interpreting this section, the Court explained that the award of costs pursuant to this section is permissive and relates only to depositions, whereas, section 440.34(3) is mandatory and includes all “reasonable costs”, not just deposition costs.

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A JCC MUST BASE THE AWARD OF ATTORNEY’S FEES ON EVIDENCE S U B M I T T E D , N O T U N S W O R N RESPONSES OR ARGUMENTS OF COUNSEL. McDermott v. United Parcel Service/Liberty Mutual, 57 So.3d 933 (Fla. 1st DCA 2011).

The Claimant herein challenged the JCC’s order denying an E/C paid-attorney’s fees wherein the JCC refused to include paralegal time when determining the reasonable time spent related to successful prosecution of a claim for payment of disputed medical bills and for incorrectly relying on unsworn responses and arguments of counsel, when determining the hourly amount of a reasonable fee. The First DCA affirmed without comment the JCC’s ruling on the refusal to include paralegal time when determining the reasonable time spent in securing benefits; however, it found that the JCC erred in finding that the E/C’s attorney testified that the customary hourly rate in the locality for similar services was $200, when the E/C’s attorney did not testify and only offered argument in support of an hourly rate of $200 versus the Claimant’s attorney’s testimony contending that he should be awarded an hourly fee of $300 to $400. In doing so, the First DCA noted that a JCC must base his award of attorney’s fees on evidence submitted not unsworn responses or arguments of counsel.

IN ORDER TO APPORTION BENEFITS W H E N T H E C L A I M A N T ’ S W O R K RELATED INJURY/CONDITION MERGES WITH A PREEXISTING CONDITION, THE E/C MUST PRESENT MEDICAL EVIDENCE TO SUBSTANTIATE THE PREEXISTING CONDITION AND A PREEXISTING P E R M A N E N T I M P A I R M E N T O R DISABILITY.

Jewell v. Gevity HR, 57 So.3d 918 (Fla. 1st DCA 2011). The Claimant suffered a compensable work accident involving injury to her low back. While the E/C accepted the injuries resulting therefrom, the E/C, per the treating neurosurgeon’s medical opinion, contended that 60% of the need for the back surgery was related to the industrial accident and 40% was

related to a preexisting low back condition. At the final merits hearing, the JCC ruled that the E/C was entitled to apportion 40% of the Claimant’s disability and medical care. Thereafter, the Claimant appealed the JCC’s ruling.

The First DCA has held that §440.15(5)(b), Florida Statutes (2008), permits apportionment of medical and indemnity benefits. Specifically, §440.15(5)(b) allows for apportionment only “if a compensable injury, disability, or a need for medical care, or any portion thereof, is a result of aggravation or acceleration of a preexisting condition, or is the result of merger with a preexisting condition….” See Staffmark v. Merrell, 43 So.3d 792, 795-96 (Fla. 1st DCA 2010). As a result, the Court noted that apportionment requires either (1) a finding of aggravation or acceleration of a preexisting condition or (2) a finding of merger with a preexisting condition. In the present case, the JCC did not find an aggravation or acceleration of a preexisting condition, but rather, relied upon the physicians’ opinions to find merger. Section 440.15(5)(b), defines merger as the combining of a preexisting permanent impairment or disability with a subsequent compensable permanent impairment or disability which, when the effects of both are considered together, results in permanent impairment or a disability rating, which is greater than the sum of the two permanent impairment or disability ratings, when each impairment or disability is considered individually. The First DCA explained that merger by definition cannot occur without a preexisting permanent impairment or disability. The First DCA reversed the JCC’s order and found that the E/C was not entitled to apportionment. Although the evidence supported a preexisting low back condition, there was no evidence that the Claimant had a preexisting permanent impairment or disability as it related to his prior low back condition and thus, there could be no merger.

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Successes

Lee W. Jenne, Partner in our Hollywood office, successfully defended a claim wherein the Claimant had been stuck by a needle and was determined to have Hepatitis B. Despite the fact that the claim had been accepted as compensable and medical bills had been paid for approximately one year, the Judge of Compensation Claims found that there was no causal connection between the Claimant's Hepatitis B and the needle stick, despite the fact that the Carrier had not sent a 120 day letter to the Claimant. Through the testimony of the Employer/Carrier's expert witnesses, he was able to prove that the Claimant could not have contracted the Hepatitis B from the needle stick, and that the medical treatment provided to the Claimant was based upon the protocol that the authorized medical facility followed in all cases involving needle sticks.

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Stephanie Robinson, Associate in our Hollywood office, recently prevailed on the issue of PTD Benefits. The Claimant was claiming entitlement to PTD benefits based upon the fact that he was on a no work status post surgery, after his entitlement to 104 weeks of TTD/TPD benefits had expired. Despite the no work status, Ms. Robinson successfully argued that the Claimant failed to demonstrate that he would be entitled to PTD benefits upon reaching MMI. The JCC denied his claim for PTD benefits.

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Marni Rogalsky, Associate in our West Palm Beach office, prevailed in a week long trial of a claim/counterclaim construction defect case. The carrier had offered to settle the case for the cost of defense. Plaintiff sought breach of contract and negligence damages. The jury found no negligence and nominal contract damages which are less than the offers and for which there will be no coverage.

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Michael Kraft, Partner in our Tampa office, was successful in a recent binding arbitration. This was a traumatic brain injury case in which the parties entered into a high-low. The arbitrators did not believe that the plaintiff had a permanent traumatic brain injury and the award was within a few thousand dollars of the low.

* * *

John Howard, Partner, and Reagan South, Associate, both in our West Palm Beach office, spent two weeks in West Palm Beach on a commercial litigation matter involving the sale of a 3.7 million dollar home that was ultimately resold for $600,000 by plaintiffs because of problems that plaintiffs alleged were fraudulently or negligently concealed from them at the time of the sale. Plaintiffs also alleged that the problems were caused by the defendant/seller since he was also the subcontractor who applied the cast stone facade on the home. Claims for fraud, misrepresentation, FUDUTPA and breach of contract were decided in favor of the client and only 20 percent fault allocated to the client for negligent misrepresentation. The jury also apportioned 20 percent of the damages to plaintiffs. Because of a personal bankruptcy by the client and a successful declaratory action by the carrier, plaintiffs are not likely to collect any of the $250,000 jury award.

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Jacqueline M. Gregory, Partner, and Nathan Hoy, Associate, both in our Hollywood office, were successful in obtaining a Summary Final Order. The Judge of Compensation Claims found that there was no genuine issue of material fact and that multiple claims had been asserted and voluntarily dismissed; therefore the two-dismissal rule applied. Claims for medical benefits, indemnity benefits and

The information in this newsletter has not been reviewed or approved by The Florida Bar. You should know that:

The facts and circumstances of your case may differ from the matters in which results have been provided.

All results of cases handled by the firm are not provided.

The results provided are not necessarily representative of results obtained by the firm or of the experience of all clients or others with the firm. Every case is different, and each client’s case must be evaluated and handled on its own merits.

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reimbursement of substantial hospital bills were dismissed with prejudice.

Ms. Gregory also effectively handled a case on behalf of Dillard’s, Inc. in which the Section 440.105(4)(b) fraud defense was asserted. Aggressive discovery efforts had revealed a prior job accident from 2003 which the Claimant misrepresented in her sworn testimony. The entire claim was subsequently denied and Claimant's counsel withdrew from the representation without filing an attorney fee lien. The Claimant is currently being prosecuted, and the workers' compensation case is closed.

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Christopher Tice, Partner in our Jacksonville office, successfully overcame the presumption of correctness on an Expert Medical Advisor (EMA) opinion and defeated the Claimant's claim for compensability of the left elbow and temporary total/partial disability benefits from April 10, 2010 to the present. Judge Humphries essentially accepted the entire defense argument that the Claimant's history of the accident was not credible based on the medical records and the Claimant changing the description of injury over a year after the accident. Since the Claimant's history was not credible, the Judge rejected the EMA as he determined that the EMA's opinion of causal relationship was without factual basis.

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Michael S. Kast, Partner in the Orlando office, and Jason Grundorf, Associate in the Orlando office, obtained Summary Judgment for the Defendant carrier in a forced or lender placed policy case and were successful in arguing that the homeowner, the "borrower" under the policy, had no insurable interest left in the policy after the Defendant carrier made payments to the lender, who was the named insured under the policy.

* * *

Hinda Klein, Partner in charge of the appellate department, recently prevailed on an appeal to the Third District Court of Appeal, seeking review of a

Circuit Court Appellate Decision issued by the 11th Judicial Circuit, in which the Circuit Court affirmed a County Court order directing a verdict against State Farm in a PIP case. The Third District also quashed the Circuit Court's order awarding appellate attorneys' fees to opposing counsel whose brief had been stricken and who was precluded from presenting oral argument to the Circuit appellate court.

Ms. Klein was also successful in obtaining an affirmance from the Fourth District Court of Appeal of a defense verdict in a case where the plaintiff claimed to have suffered brain damage as a result of an automobile accident with an insured.

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John E. Herndon, Jr., Partner, and Kirsten H. Matthis, Associate, both in our Tallahassee office, have been granted summary judgment on a declaratory judgment action filed on behalf of Colony Insurance Company. The underlying lawsuit by a condominium association sought damages from the insured for the failure to fund converter reserves properly, conversion, failure to properly repair the buildings, and negligent misrepresentations regarding the building conditions, among other claims, and sought $3.7 million in damages. In the ruling from the Middle District of Florida, the Court held that many of the sixteen Counts did not allege either "property damage" or an "occurrence" under the Policy, and f u r t h e r h e l d t h a t t h e n e g l i g e n t misrepresentations were not the cause of any "property damage". The claimant also asserted that an "Exclusion - Designated Work" which excluded "all construction operations pertaining to apartment to condominium conversion" did not apply because the construction activities took place after the Declaration of Condominium was filed, and argued that a subcontractor exception should be read into the exclusion. The Court agreed with our position that the date of the Declaration was not determinative of whether the construction operations pertained to the conversion, and declined to read a subcontractor exception into the exclusion.

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Successes

Esther Zapata Ruderman, Partner in our West Palm Beach office, recently prevailed in a case styled Delahoz v. Veolia ES Solid Waste Services. In that case, the Claimant sought compensability of a hernia condition; authorization of a surgeon; and payment of indemnity benefits. The Employer/Carrier controverted the claim and denied all benefits on the basis that the accident did not arise out of the scope of employment and no major contributing cause. On July 28, 2011, Judge Charles Hill agreed with the Employer/Carrier and ruled in their favor denying the Claimant's claims.

* * *

Dean R. Mallett, Associate in our Hollywood office, successfully argued a water extraction company did not have standing to pursue a cause of action against an insurance company based on an assignment of benefits that was not properly executed by an insured under the policy and obtained final judgment in the carrier’s favor.

Mr. Mallett also successfully obtained final judgment in favor of an agent on a claim of negligence by an insured. The insured obtained business coverage from an excess and surplus carrier through our client. The insured suffered a very large water loss during the policy period. Sometime after the policy was issued, the carrier began experiencing severe financial problems and when the claim was presented to the carrier, the carrier had declared insolvency. The insured sued the agent, arguing that the agent had a duty to inform the insured, after the policy issued, of the financial situation of the carrier and help obtain stable coverage. We successfully argued that the duty to the insured ceased once the policy issued in the absence of a special relationship that would entail such a continuing duty.

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Matthew Struble, Associate in our Hollywood office, recently obtained a Summary Judgment in favor of an insurer stemming from the denial of a hurricane Wilma claim with damages in excess of $130,000.00. Defendant served Plaintiffs with a Proposal for Settlement for a total of $500.00 and filed a summary judgment arguing that the insurer was entitled to summary judgment based on the failure to timely

report the claim which is a condition precedent to recovery. Defendant also successfully argued in the alternative that the affidavits filed by Plaintiffs were insufficient to rebut a presumption that the insurer had been prejudiced in the investigation of the claim.

Mr. Struble also successfully brought a Petition for Declaratory Judgment asking the Court to find that the insurer had no duty to defend or indemnify the insured for a claim involving intentional infliction of emotional distress. One of the primary issues was whether the underlying Complaint alleged “bodily injury” as defined by the Policy. Although the underlying Complaint merely alleged emotional distress there was also an allegation that the distress resulted in a miscarriage. Mr. Struble argued that because Florida law attributes this injury to the mother of the fetus the underlying Complaint alleged an excluded bodily injury. The Court agreed and entered judgment in favor of the carrier pursuant to the intentional act exclusion.

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Successes

Announcements

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Katherine achieved Board Certification in Workers' Compensation August 1, 2011.

John recently Co-Chaired an American Board of Trial Advocates continuing legal education seminar entitled, "The Honorable Jeffrey A. Winikoff Memorial Professionalism Seminar." The seminar was provided to trial lawyers and judges of the Fifteenth Judicial Circuit.

Katherine G. Letzter Partner in our Tampa office

(813) 273-6464 kletzter@conroysimberg.com

John A. Lurvey Partner in our West Palm

Beach office (561) 697-8664

jlurvey@conroysimberg.com

Announcements

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Manny has returned to our Pensacola office after his year long deployment to Iraq.

Manny F. Alvarez Associate in our Pensacola office

(850) 436-6605 malvarez@conroysimberg.com

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Announcements

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