Lawlor Winston Blog

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“I am an invisible man…a man of substance, of flesh and bone, fiber and liquids—and I might even be said to possess a mind. I am invisible, understand, simply because people refuse to see me.”

Perhaps, it could be more simply summed up as “[t]rue is it that we have seen better days….” The only certainty is that the future for injured workers in Florida is uncertain. The self-executing nature of the workers’ compensation system in Florida is under attack, and this will only result in additional injury to Florida’s injured workers. Prior to 1990, the Judges of Compensation Claims (JCCs) had the authority to hear disputes regarding an injured worker’s AWW, unpaid medical bills, unpaid medical mileage, unauthorized rehabilitation, MMI, plus all facets of medical care (i.e. changes in doctors, IMEs, the need for subsequent referrals, and testing). Injured workers and their attorneys were less litigious, and the penultimate goal (second to healing the injured worker) was getting the injured worker to MMI so that the claim could be settled.

When it passed the 1990 and 1993 reforms, the Florida Legislature repeatedly whittled away at the power of the JCCs. With the advent of the Employee Assistance Office, the Agency for Healthcare Administration, mandatory managed care, and requests for assistance, the legislature caused a “splintering” of the workers’ compensation system. Placing these new hurdles between the injured worker, their benefits, and the JCC, caused a delay in payments and a delay in the resolution of disputes. This caused the dissatisfaction of the injured worker to rise. In fact, injured worker dissatisfaction was proffered as one of the reasons for increased attorney involvement in Florida.

The 2003 reform will limit an injured worker’s ability to retain legal counsel, access the courts, and quickly resolve disputes regarding compensation benefits. This author submits that by passing this reform the legislature is pushing an already delicate situation closer toward critical mass. However, the 2003 reform could face some constitutional challenges. The mandatory limiting of psychiatric impairment ratings to one percent might violate both the due process and equal protection guarantees of the Constitution of the United States of America. The limitation of attorney’s fees and denial of hearings—absent the showing of good cause—on claims involving only AWW issues, medical mileage, and claims with less than $5,000 worth of benefits in controversy might violate the guarantee of access to the courts provided for in the Constitution of the State of Florida.

“Florida’s workers’ compensation system [should be] affordable, efficient, and above all equitable.” Equity will not abound as a result of the 2003 reform. The system will not be more efficient. The system was already clearly profitable, and therefore affordability could be controlled by reducing profits, instead of reducing benefits, but the reformists have prevailed, and so: “[o]nce more unto the breach, dear friends, once more….” For the injured workers of Florida, let Tallahassee be their Harfleur. “Stiffen the sinews, [conjure] up the blood, Disguise fair nature with hard favor’d rage; Then lend the eye a terrible aspect….” Continue the fight for benefits in the courts and with the lobbyists. That is, for what benefits the 2003 reform has left for the injured worker, and finally never forget to “wait and hope.”

M. Benjamin Murphey, Esq.

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President’s Message

December, 2009

When I first took office as President of this great organization last December, my primary concern was finding interesting speakers to attend our monthly dinner meetings.  I quickly realized that would be the easiest of my duties.  Late last year I attended an FJA telephone conference call which included the leaders of local “trial lawyer” organizations across the State.  Initially, many of the issues discussed seemed to be remote and of little interest to me, sitting as I was in my office in Broward.  However, as I listened, my concern grew.  It was apparent that the other county Justice Associations around the State were much more involved in the fight to protect our clients and practices than we were.

I immediately cancelled my January speaker and requested a panel of FJA leaders come to our first dinner meeting of 2009 to provide our membership with a “Pre-Legislative Briefing”.  Attendance at (and feedback from) that meeting was good.  I took that as a mandate to urge our organization and membership to become more involved in Statewide politics and the legislative process in Tallahassee.  Historically, Broward County was on the front lines of the battle to protect justice in Florida, and it was time for us to take up that position again.

2010 will be a critical, pivotal year in Florida politics.  We will be presented with both rare opportunities and formidable challenges. Florida’s voters will be asked to fill an open U.S. Senate Seat, the Governor’s office, the Attorney General’s office and, indeed, every open Cabinet position.  Moreover, we face an unprecedented number of State Senate races, which will be particularly important to our clients and practices.  What does this mean to us? Well, only everything. As FJA President Mike Haggard recently put it:

“If we do not participate in these elections in a significant way to ensure victory, Florida’s civil justice system will be under attack for the next decade.  The fate of your clients and your practice is all on the line.”

This is not just hyperbole: the State Senate has long been where our most important battles have been fought.  Unfortunately, legislators like Skip Campbell and Steve Geller are gone from Tallahassee, and many of our other friends are term-limited in 2010. 

Now, more than ever, we must pull together and support the FJA and the candidates that place the interests of civil justice, access to courts and an independent judiciary ahead of big business.  Otherwise, candidates supported by the Florida Chamber of Commerce, the insurance industry, Associated Industries of Florida and the Florida Medical Association will run without significant opposition. Without our lobby, the consumers of this State will suffer the consequences of next year’s elections for many years to come.

I urge our organization and membership to continue supporting the FJA and take our rightful position as leaders in the fight to preserve the civil justice system in Florida.  Our legislative committee members will be contacting many of you to organize lobbying trips during session.  Please take their calls. If you don’t hear from them, reach out and volunteer.  2010 promises to be an interesting year for all of us.

It has been my pleasure and privilege to serve as President of the BCJA.  My thanks to our Executive Director, Laura Silverman, our Board of Directors, and all of you.

Best regards,

Andrew

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Andrew Winston served on the BCJA Board of Directors from 2003-2009, and was President in 2009.  The BCJA (Broward County Justice Association) was founded to serve members of the legal profession who focus on civil litigation, as well as the judiciary of Broward County, Florida.  More information may be found at www.BrowardJustice.net

“Thank you Officer.”

Although politeness like this may not get you “out” of a traffic citation, any police officer will agree that a good attitude serves you much better than the alternative. Forget about what type of day you have had, be thankful if you only get issued a citation, and can return to fight another day.

Many people believe the only way to deal with a traffic citation is to pay the fine, take the points, and go to driving school. Depending on a number of factors, including the type of violation, and your driving record, you may have other options.

In Broward County, a violator actually gets four opportunities to decide how to deal with a citation: 1) plead guilty by mail, pay the fine, and perhaps elect driving school; 2) attend the initial appearance, pay the fine, elect driving school, or plead “not guilty”, and request a full hearing; 3) attend the pre-trial conference, where a magistrate will give you the opportunity to change your plea to “no contest”, and accept a “plea bargain”; and 4) proceed to a final hearing.

Pleading guilty to your traffic citation entitles you to pay the entire fine, take points on your license, if required, and perhaps attend driving school.

If you plead not guilty, either by mail, or in person at the initial appearance, your case will be set for a “pre-trial conference”. A traffic magistrate will give you the opportunity to change your plea to “no contest”, in exchange for a reduced sentence. Usually this reduced sentence is an offer of “withhold of adjudication”, no fines, no school, no “points”, and assessment of nominal court costs. While many things determine the severity of the potential offer, if you have an attorney, a relatively clean driving record, and were not involved in a accident or speeding in a school zone, your chances of avoiding points and high fines are good. While retaining an attorney to represent you at this stage is not strictly necessary, it may help you receive a better “deal”. Also, most attorneys who do this type of work charge very reasonably for this service.

Finally, you may opt to maintain your plea of not guilty, and proceed to trial. We don’t have space here to discuss the procedure and practice of even the simplest traffic misdemeanor trial. Unless you were involved in an accident, or have a very poor driving record, your best bet in most situations is to accept the plea-bargain. However, if you do decide to go to trial, retention of an attorney is probably a very good idea.

Feel free to contact us for a referral to a lawyer that specializes in handling Traffic Tickets.

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Earlier this year, a doctor was walking across the street when he was run over and killed by an uninsured drunk driver. Although his car was covered by a good policy with high uninsured motorist benefits, his widow and children received none of those benefits.

We often see business people who, while attempting to protect themselves from the liability which motor vehicles present, exclude themselves and their families from very valuable insurance protection for which they are paying.

Where we see this situation the most, is in closely held corporations and in the practices of professionals such as lawyers, doctors, dentists, etc. These astute individuals realize that motor vehicles present a potential liability whenever the vehicle may be involved in an accident, regardless of whether the principal or an employee is driving.

Therefore, the ownership of the vehicles is held in a corporate name so that liability can be limited to the corporate assets and those of the at-fault individual driver of the vehicle. The business routinely purchases a large insurance policy to protect the corporation or its driver from claims arising from at-fault accidents. This is a sound practice, except for some unforeseen consequences when the business principal or a family member is injured by an uninsured or under-insured motorist.

In Florida, by statute, UM coverage is presumed to be at the same limits as the liability policy which is purchased. For example, if there is $500,000 in liability coverage, there would routinely be $500,000 in UM coverage to protect against the opposing at-fault driver being under or un-insured. Also, when we purchase uninsured/underinsured motorist coverage (UM), that insurance is personal to the insured. When an Insured or an insured’s family member is injured by an at-fault under or un-insured motorist, the UM portion of the policy becomes available to the Insured and any resident relative living in the household with the Insured. That UM coverage follows the insured and those family members wherever they may be and whatever they may be doing. They are covered under the UM portion of the policy whether they are in the insured vehicle, in someone else’s vehicle, riding a bicycle, a pedestrian, etc.

The difficulty is that in the effort to confine liability to the corporation and the at-fault driver of the corporate vehicle, the protections of the UM portion of the policy are not nearly as broad. Where the business is the Named Insured, only those in the vehicle are covered under the UM policy. There is no coverage for the business principals or their family members when they are in other vehicles, riding bikes, walking, etc. This is because the corporation or other business entity is the Named Insured in the policy of insurance, and they never get injured and have no family members which could also get injured. Premium dollars paid for UM coverage where a business is the Named Insured are essentially wasted.

There is a simple solution. The business principal should be named as a Named Insured in the policy of insurance. The principal doesn’t own the vehicle and is not subject to liability for the harm caused by the vehicle unless the principal is driving. By adding the principal as a Named Insured, they and their family get the benefit of the UM coverage without any additional exposure.

Thanks to Matt Weissing

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I hope everyone enjoyed their summer. Personally, I love autumn. Football starts again, kids go back to school, temperatures begin a slow decline to something approaching pleasant and the end of hurricane season approaches.

The past few years have brought us a much-needed reprieve from the onslaught of hurricanes that, at times, made us feel like Mother Nature was loading tropical systems into a machine gun aimed at Florida. Nevertheless, many of us brace ourselves in June and follow the weather reports closely until the end of the season nears in October and November.

I’ve begun to realize, however, that we Floridians face not one, but two hurricane seasons every year. One brought on by nature every June, the other by the enemies of justice in Tallahassee every February. Unfortunately, our second hurricane season came early this year when John Thrasher won the special election in Jacksonville this month for the State Senate District 8 seat. Anyone who still doesn’t know who and what John Thrasher is need only put his name into Google. I suggest you plan to be sitting down when you do so.

I predict the upcoming 2010 Florida Legislative session will be more critically important to the jury trial system, the independence of our Judiciary, and the people of our State than any in recent memory. “Tort Reform” bills will be flying around the House and Senate like roof tiles in a Cat 5 cyclone. The enemies of justice will be pushing their agenda, and the now-familiar demonization of “Trial Lawyers” will be an oft-employed tactic.

All this will be going on during an election year when important local, state and judicial races will be occurring. We need to support the legislators committed to civil justice issues and our Judiciary. They’re going to need our help.

www.LawlorWinston.com

Of all the organizations I’m involved in, the BCJA is my favorite.  When I was a law student, I clerked for Morris Finkel, who was then President of this group.  Morris, now one of my partners, brought me as his guest to a monthly dinner meeting.  That evening had a profound effect on me, and helped form my decision to become a Plaintiff Trial Lawyer.  I remember that meeting well: it was held at the Riverside Hotel, and while sitting in on Case Evaluation I was stunned at the free exchange of knowledge, opinions and assistance.  The dinner was likewise memorable, not so much for the food (some things never change) but because the speaker and topic were timely and interesting, and I got to sit at Morris’ table with  Judges and lawyers whose names, while unfamiliar to me at the time, have become very familiar indeed.   The room that night was packed.  There were at least 100 people in attendance, and there was an overwhelming sense of collegiality.  Everyone was on the same team, fighting for good people.

When I was elected to the Executive Board of Directors in 2004, our membership was down, and dinner meeting attendance was closer to 30 people than 100.  Times had changed.  Tort reform had become a reality.  “Trial Lawyers” were under attack by the media, the insurance industry and politicians.  The settlement and verdict values of our cases had dropped precipitously.  We were working harder than ever before to get good results for our clients and to earn a living for ourselves.  Being an active part of organizations like the BCTLA seemed to me to be more important and valuable than ever.  Unfortunately, given everything else our beleaguered membership was dealing with, participation had slipped.
 
We’re a much stronger, viable organization than we were back in 2004.  I stand on the shoulders of giants in this regard.  I served with and witnessed the hard work and leadership of Past Presidents Brad Winston, Russ Adler, Alex Clark, Bob Rogers, Jon Pavsner and Julie Hager that revitalized the BCJA. 

And yet, I often meet Plaintiff Personal Injury lawyers here in Broward County that aren’t members of our organization, or the FJA.  I don’t get it.  I realize there are only so many hours in the day, and only so many voluntary Bar associations one can realistically be active in.  But, if one is a Plaintiff Personal Injury lawyer, joining the BCJA and FJA seems like a “no brainer”.  Aside from the obvious benefit of being able to mix and mingle with the local Judiciary and colleagues at the monthly dinner meetings, membership in the BCJA gives one access to the collective knowledge, wisdom and experience of some of the finest lawyers in the State.

The more members we have, the stronger we become.  The stronger our organization becomes, the more empowered and effective we become as practitioners, lobbyists and advocates.  Let’s welcome back those who have left, and open our arms to the hundreds of potential new members in Broward County.

www.LawlorWinston.com

For a session that wasn’t supposed to be focused on “Tort Reform”, there were an alarming number of such Bills before the legislature this year.  Our battles in Tallahassee are far from over. We can all consider this past session a victory, thanks to the hard work of our brethren at the Florida Justice Association.  Click on this link to find a brief legislative update from the FJA’s website (www.floridajusticeassociation.org), where additional information is available.

Looking back over the “Bad Bills” should give us all pause—Insurance Company Bad Faith Immunity?  Really?  That was on the table?  I’m being flippant, of course, but I can’t believe this didn’t cause more concern within our profession. 

It’s also important to note that we were not just on the defensive in Tallahassee this year.  Our lobby supported many Bills that, had they passed, would have greatly benefited the citizens of Florida. 

One of the hot-button issues this past session was the legislative rejection of the Florida Supreme Court’s opinion in Murray v. Mariners Health/ACE USA., which reinstated hourly attorney fees payable by the Employer/Carrier.  House Bill 903, which negates the Murray Court’s ruling and reinstates the 2003 caps on attorney fees, passed after a battle between House and Senate leadership during the final days of the session, despite the coordinated efforts of the FJA and the Florida Worker’s Advocates.  The FJA effort to urge Governor Crist to veto that Bill is underway.  If you’d like to get involved, contact Jacqui Sisto at jsisto@floridajusticeassociation.org for more information.

Our fight is never over.  It is incumbent upon us to protect our clients, the independence of our Judiciary and our practices.  The Board of Directors of the Broward County Justice Association has recently created a “Legislative Committee” dedicated to coordinating our local efforts with the FJA. 

Next session, the BCJA will be represented in Tallahassee.

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It seems that every time I think we have a bit of time to relax our vigilance and focus exclusively on our practices, the enemies of Justice launch another attack.  John Thrasher is running for the open seat in State Senate District 8 (Jacksonville). What does a Jacksonville State Senate race mean to us down here in Broward County? 
 
For those of you who are unfamiliar with State politics, James Thrasher may be an unknown to you.  As Speaker of the House, Thrasher joined forces with Jeb Bush on a mission to destroy Florida’s civil justice system.  In my opinion, no one has done more harm to your client’s rights and Florida’s consumers than John Thrasher.  After leaving the Florida House of Representatives, he joined a well-connected lobbying group and has spent the last eight years lobbying against Florida’s consumers on behalf of special interests the likes of the big tobacco, big petroleum and big insurance. 
 
Make no mistake about it. John Thrasher is no friend of Florida consumers or our clients.  As Speaker of the House in 1999, he began his assault on consumer’s rights by creating a sliding scale where Joint & Several does not apply, dismantling of punitive damages with immunization of employers for acts of employees and severe limitations on damages awardable, creating a 12-year statute of repose in products cases. enacting a Government Rules Defense in product liability cases, and limiting the dangerous instrumentality doctrine, including caps on rental car liability.
 
The fight for justice for consumers has been moved up this year.  If we do not pitch in and do our part to oppose John Thrasher now, Florida consumers and your clients will be facing a grim decade.  We need to move now, folks.  The primary is scheduled for September 15th.  Let’s take this opportunity to get involved and take steps to preemptively protect our clients and the consumers of this state.

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