Maximizing damages in personal injury cases can be more than negotiating and litigating with the at-fault party. If there are unpaid or underpaid medical bills, hospitals and other medical service providers can seek reimbursement from the injured person. Insurers may also seek reimbursement from the policy-holder or from another insurer, depending on how much was paid, if there were multiple insurers obligated to pay, and what was agreed upon in each policy. In Humana Medical Plan Inc. vs. Western Heritage Ins. Co. (No. 15-11436), the Eleventh Circuit Court of Appeals assessed whether or not a corporate insurer, acting as an Medicare Advantage Organization (MAO) under Medicare Part C, can sue the insurer (the primary payer) for a hotel chain that settled a personal injury case with a woman injured on hotel property.  Florida HotelThe MAO initially sought reimbursement from the injured woman and her husband, but then it chose to pursue the insurer, creating new federal case precedence for Florida.

Following the premises liability accident, the injured woman sought medical treatment, which was billed to and paid by the MAO at $19,155.14. After the woman sued the hotel property, the MAO sent her a bill in the same amount, which is allowed under Part E of the Medicare Act (known as the MSP), under which Medicare payments are secondary and reimbursable if any other insurer is liable. This includes a personal injury defendant’s insurer. The amount was not appealed by any party to the action. As part of the settlement, the insurer and hotel chain tried to include the MAO on the settlement draft. The injured woman and her husband refused and sought sanctions for non-compliance with the settlement agreement. The amount was held in trust, and the hotel chain paid $115,000 to the couple. The insurer then went after reimbursement from the hotel’s insurer under the MSP private cause of action, 42 U.S.C. § 1395y(b)(3)(A), which allows double damages. The Florida federal district court granted summary judgment to the MAO, ordering the double damages under the MSP, and the hotel’s insurer appealed.

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As previously discussed, nursing homes occasionally use Arbitration Agreements, which funnel liability disputes to an arbitrator instead of the state or federal civil court system. Recently, several opinions have been issued from Florida District Courts of Appeal that have ruled on whether or not a nursing home resident is bound by the arbitration agreement when she or he did not sign the agreement prior to her or his stay at the facility. The courts have come to conflicting conclusions on this matter. Contract Signature LineThe Supreme Court clarified what’s appropriate under the law in Florida in Mendez vs. Hampton Court Nursing Center, LLC (No. SC14-1349).

In Mendez, the son of a now-deceased resident filed suit against the nursing home for negligence after his father lost his left eye due to an infection acquired during his stay at the facility. The father passed away during the proceeding, and the son moved forward with the case on the estate’s behalf. The nursing home moved to compel arbitration, and the Second District granted it, ruling the resident father was bound by the agreement as a third-party beneficiary, even though the son was the one who signed the agreement. The son appealed.

The Supreme Court first cited 21 Williston on Contracts § 57:19, at 181 (4th ed. 2001), which states that third persons who are not parties to an arbitration agreement are generally not bound by the agreement. The court markedly rejected the approach taken by the First and Third Districts, which held that a resident is bound by the contract. The defendant encouraged the court to apply the doctrine of third-party beneficiaries, under which a person sues to enforce a contract, even if they are not a party to the contract. In this scenario, the clear or manifest intent of the contracting parties that the contract primarily and directly benefit the third party must be shown.

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Nursing homeIf a family member goes into a nursing home, a lot of paperwork must be completed. This can be overwhelming, and one may lose track of everything signed. Several nursing homes require the signature of an arbitration agreement before the resident is admitted. An arbitration agreement is a contract between two parties who agree to see an arbitrator, who is usually picked by the facility, to settle any disputes arising from the resident’s stay at the nursing home. This is in lieu of a traditional lawsuit filed in the state or federal court system.
In Olson v. Florida Living Option (Case No. 2D15-5687), the Second District Court of Appeal reviewed an arbitration agreement and whether the negligence alleged by the estate of the deceased resident fell within the scope of the agreement.

The injured resident was injured while living at his most recent nursing facility. He had previously signed an arbitration agreement at a different assisted living facility in the same retirement community. Following the injury and death of the resident, the estate filed suit in the state court system against the nursing home and its parent company. The defendants moved to compel arbitration, using the signed agreement as proof the two were in the same community and affiliated with each other. The trial court granted the motion, finding that the arbitration agreement extended from the then-current residential facility to all future admissions.

The appellate court listed three things that it must consider in any determination of whether to uphold a motion to compel arbitration:  whether a valid agreement exists, whether an arbitrable issue exists, and whether the right to arbitration was waived. The court noted that, while an arbitration agreement can benefit a third party, like an affiliate nursing home, the nursing home company failed on the question of whether or not the scope extended to a third party. The court looked at the relationship between the contract and the claim at issue. The court felt the language of the arbitration agreement was broad in its scope regarding events, using “arising out of and relating to” language, but it limited the agreement to “this Facility.” The second facility to which the resident went did not have its own arbitration agreement, nor did it refer to one in the contract. Since there was no dispute that the second residence was a “separate facility,” the court determined the argument to extend the arbitration agreement to the injury at the second residence failed. The order compelling arbitration was reversed, and the case was remanded back to the trial court, where the estate of the deceased resident can pursue their original negligence action.

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The Florida legislature enacted the Motor Vehicle No-Fault Law, which provides Personal Injury Protection (PIP) benefits to those injured in a car accident. The benefits under Fla. Stat. § 627.736(1) allow motorists injured in a car accident to receive up to $10,000 in medical and disability benefits if the injured person suffered from bodily injury, sickness, disease, or death from owning, maintaining, or using a motor vehicle. To receive the maximum amount, there must be a determination that there is an emergency medical condition. Otherwise, the benefits are limited to $2,500. In Medical Center of the Palm Beaches vs. USAA Casualty Insurance Co. (No. 4D14-3580), the Fourth District Court of Appeal looked at what should happen when there is no determination of an emergency medical condition.

The injured driver in this case suffered from pain to her right shoulder and cervical region after a car accident. Physical TherapyA treating physician referred her to a physical therapy practice, which then submitted bills to the insurer. The injured person’s insurance company refused to pay, explaining that the injured woman had already met her $2,500 limit. The insurer, in its denial, requested a determination of the injured person’s emergency medical condition by an authorized provider. The physical therapist office sued the insurer for breach of contract for not paying the bill presented to them. Moreover, the same office also sent a note from the injured person’s treating physician, who diagnosed her with an emergency medical condition. The insurance company then paid all outstanding charges until the $10,000 limit was reached.

The trial court ruled in the defendant insurer’s favor on summary judgment, agreeing with the insurer that the limit is $2,500 in the absence of a determination of an emergency medical condition. The court also ruled that the defendant did not waive any defenses because it reimbursed the physical therapist office following the determination. The physical therapist office appealed, arguing that the opposite should occur. The office argued that the statute only limits the payment to $2,500 when a statutorily authorized provider determines there is no emergency medical condition. The physical therapist office’s position was that the default should be payment up to $10,000 in the absence of a negation.

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The Florida Supreme Court recently ruled on an issue in conflict between two District Courts of Appeal in Chirillo v. Granicz (No. SC14-898). Both district courts weighed which legal duty should be applied in wrongful death cases when a patient commits suicide while under the care of a physician or psychotherapist. In Florida, the first stage of an appeal after a circuit court trial is one of five district court of appeals. If these courts rule differently on an issue, it is up to the Supreme Court to determine which interpretation of the law is correct.

In Chirillo, the deceased patient changed medication from one antidepressant to another. The deceased patient stopped the new medication and alerted her primary care physician that she did so because of side effects like not sleeping well and gastrointestinal problems. The deceased reported to the office she was not “feeling right,” and her medication was changed to Lexapro. sadness-1546812-639x852 However, no other appointment was made with the primary care physician. After the patient committed suicide, the estate filed suit against the primary care physician, alleging he was responsible for her death. In this case, the Supreme Court reviewed the Second District Court of Appeal’s reversal of the trial court’s summary judgment in favor of the defendant physician. The trial court had determined a primary care physician did not owe a duty to the deceased patient just because he had knowledge of her depression and changed her medication. The appellate court ruled that the question was whether or not the physician exercised reasonable care in the treatment of the patient. Based on this assessment, the Court of Appeal felt summary judgment was improper because the deceased person’s estate’s expert witness testimony created a genuine issue of material fact regarding whether that duty was breached.

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In all Florida personal injury cases, the jury must decide whether to believe some or all of the version of events put forth by the plaintiff, or some or all of the version of events put forth by the defendant. Formally, they are tasked with determining any genuine issues of material fact. Case law places this task firmly in the hands of a jury. Judges, on the other hand, are responsible for determining matters of law, and they must allow the jury to hear all relevant evidence that is not precluded by law. In a recent decision, McNabb v. Taylor Elevator Corp. (2D15-4838), the district appellate court looked at whether or not an expert witness unveiled a genuine issue of material fact in his affidavit, and whether the trial court erred by ruling in favor of the defendants’ summary judgment, dismissing the case.

The injured party in this case filed suit after sustaining injuries from slipping on an oil leak near an elevator on the premises of a condominium complex.  Elevator Buttons An elevator seal broke prior to the accident, leaking into the machine room and out into the hallway where the fall occurred. The elevator service technician testified that the leak was dripping every two seconds and that the oil was a quarter-inch deep. The injured man alleged that the elevator and the surrounding area were negligently maintained. The defendants in the case (the condominium association and the elevator servicing company) filed for summary judgment, arguing that the testimony of the inspectors ruled out negligent maintenance, since there was no leak at the time of the inspection. The injured man submitted the testimony of his own expert witness, a mechanical engineer, who opined that the seal had been leaking for between 4 1/2 and 18 days. The expert based his determination on the rate of the drip, the depth of oil observed, and the dimensions of the machine room.

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In Florida personal injury and car accident cases, there are always four elements for an injured person or persons to prove:  1) a duty created by law directing the at-fault party to act in a certain way, 2) a breach of that duty, 3) an injury resulting from that breach, and 4) damages incurred from the injury. Often, appellate cases assess an error concerning one of the first three elements. In Safeco Insurance Co. of Illinois v. Fridman (5D12-428), the Fifth District Court of Appeal reviewed two questions on remand from the Supreme Court of Florida concerning damages. The first was whether there was an error in denying the defendant insurance company’s motion for mistrial, based on improper arguments made by the injured person. Busted tail lightThe second was whether or not the trial court should have granted the insurer’s motion for remittitur.

The underlying action began when the injured driver was hit by an uninsured motorist. The injured driver underwent surgery for his injuries three years after the collision, and an expert testified during trial that he would need to have fusion spine surgery in the future. At trial, the injured person provided proof of the injuries suffered as a result of the accident with an uninsured motorist, and he argued that he was entitled to damages from his insurance company. To show the damages he lost from the accident, both past and future earnings, the injured person described his work history preceding and following the accident.

Prior to the auto accident, the injured person had been an electronics salesman for several years, earning from $800 to $1,000 a week. For two years during this period, the injured person also ran a retail marble and tile store, but he was unable to testify about how much he earned from this business. After the accident, the injured person opened a wholesale marble and tile business for 20 days, stating he closed it because he could not lift the marble as a result of the injuries. Afterwards, he worked as a salesman again, first earning between $400 to $600 a week, then $500 to $600, and by the time of trial around $1,200 a week. During trial, an expert testified that he would not be able to work after a fusion spine surgery for three to four months. The injured person testified that if he had remained in the wholesale marble and tile business, he could have made $100,000 to $200,000, based on the profit margin for a square foot of tile. No other testimony or evidence was provided to support his assessment.

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In Okeechobee Aerie v. Wilde, Nos. 4D14-2770 and 4D14-2771, the court of appeals reviewed an appeal stemming from an $11 million verdict awarded to a motorcyclist injured by a drunk driver. The driver had recently left a social club bar that served him alcohol and contributed to his heavy inebriation. The driver’s blood alcohol content was .26 at the time of the accident, and the testimony of servers during the trial indicated that they knew he was an alcoholic. The injured motorcyclist and his wife filed suit against the bar that sold him alcohol.Motorcycle accident After the trial concluded in their favor, the social club bar appealed, arguing that the trial court erred in several ways. The appellate court agreed, remanding the case back for a new trial.

The social club bar disagreed with the court’s determination to allow evidence and a jury instruction regarding Florida’s Responsible Vendor Act. The injured motorcyclist and his wife claimed that the Act created two causes of action. The bar claimed it created only one cause of action. The appellate court pointed out that it actually eliminates a cause of action, shielding a person or vendor that serves alcoholic beverages from suit in some situations when the right to bring a claim might otherwise exist. An exception does exist, however, if the beverages were sold negligently to a habitual alcoholic. The court felt in this case that it was not enough to show that a drinking establishment knowingly served a habitual alcoholic. The court explained that the injured person must show that the establishment owed a legal duty to the injured person and that a breach occurred. Evidence of common sense, the bar’s failure to adequately train its staff, and societal standards were acceptable, but evidence of the Act went a step too far.

This ruling affected the next issue of whether or not the court erred by allowing evidence of a prior case in which a woman was killed by a different drunk driver who was served by the same establishment. This evidence was submitted solely on the basis that the bar was aware of the statute and its responsibilities under it. Since the introduction of the Act was deemed unacceptable, the evidence of the prior accident was also ruled inadmissible.

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A series of consolidated appeals in Florida Wellness & Rehabilitation v. Allstate Fire & Casualty Co. (Nos. 3D15-151; 3D14-2688; 3D14-3008; 3D15-149 & 3D15-150) asked whether or not the language in an insurance policy provided notice to the insured that payments would be issued according to Florida Statutes 627.736 (5)(a)(2)(f), which pays medical care providers at a rate of 80% of 200% of the Medicare Part B schedules. Five medical providers, as assignees of an injured party, filed suit against the insurance company, arguing that the policy did not provide a clear and unambiguous election to the insureds that the statutory schedules were to be used by the insurance company to limit reimbursement to providers. Summary judgment motions were filed by both sides, but the trial court ruled in favor of the insurance company, ultimately determining that the policy language offered a clear and unambiguous election to its insured. Medical Care The providers appealed, but the decision was ultimately affirmed with a certification that it is in conflict with the law in Florida’s Fourth District and a note that it is in line with recent rulings from the First and Second District Courts of Appeals.

The appellate court in this case first looked at the statute that allows insurers to limit reimbursement. The court pointed out that while the option is available to pay 80% of 200% of the allowable amounts listed under the Medicare Part B schedule, this option is permissive rather than required. The Florida Supreme Court previously held in GEICO v. Virtual Imaging Servs., Inc., 141 So. 3d 147, (Fla. 2013), that the insured must be put on notice that the limitations on payment are being elected by the insurance carrier. In Virtual Imaging, the Supreme Court deemed the payment of “reasonable expenses . . . for medically necessary . . . services” was mandatory, but the ability to use the Medicare fee schedules to limit reimbursements was not. Since the reimbursement was permissive, notice to the insured of the election then became necessary. The insurance company in that case did not indicate in any way that it planned to limit its reimbursements based on the law, which established the notice requirement.

The Third District disagreed with the Fourth District’s assertion that there was an ambiguity in the language of the policy, particularly the phrase “subject to.” Looking at Florida case law on other matters, the Fourth District appellate court pointed to several examples in which “subject to” indicates subordination when there’s a hierarchical effect on overlapping provisions within the Florida statutes. The court felt that any other interpretation of the policy would be counter-intuitive to the understood meaning of a phrase frequently used in Florida’s statutes. The lower court’s decision was affirmed.

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Eyewitness testimony in car accident cases can come down to the two parties in the accident, who often provide conflicting accounts of what happened. In these cases, it may be necessary to use an expert witness to help determine what occurred at the time of the accident. A recent decision issued from Florida’s First District Court of Appeals in Boyles v. Dillard’s Inc. (1D14-5276) addressed whether or not the trial court erred in allowing testimony from the defendant’s expert accident reconstructionist, and whether the defense counsel’s conduct was prejudicial enough to warrant a new trial. Neighborhood DrivewaysThe court determined that the admission of the defendant’s expert witness testimony was appropriate, but the conduct of the defendant’s lawyer was not appropriate and unfair to the injured woman. Due to the latter concern, the jury verdict was vacated and the case remanded back to the lower court.

The woman in Boyles was injured after her car was struck by a delivery van driven by a department store employee. Her car was in front of the delivery van in the same lane until she attempted to turn into her driveway. The injured woman claimed that she directly turned right into her driveway when she was hit, but the delivery driver claimed that she went into the left lane before turning right, leaving him no time to avoid the collision. The woman alleged she suffered injuries to her shoulder, neck, and back. The defense produced an expert witness to help reconstruct the accident scene for the jury.

The appellate court disagreed with the injured woman’s assertion that the trial court erred in allowing the expert’s testimony at trial. The woman argued that the expert was not qualified to testify about the degree of injury she suffered because of the accident. The appellate court disagreed, determining that she misconstrued relevant case law regarding biomechanics’ expert testimony. Prior rulings in this district have held that while a biomechanics expert is not allowed to give a medical opinion regarding the extent of an injury, they are allowed to give an opinion as to whether the mechanism of the injury was caused by the accident. The appellate court felt that the testimony was within these parameters and affirmed the lower court’s ruling on this issue.

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