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FLORIDA JUSTICE REFORM INSTITUTE AMICUS CASES

Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla. 2016)

Westphal involved a challenge to the constitutionality of Florida’s workers’ compensation scheme.  The underlying issue was whether a workers’ compensation claimant who remains totally disabled at the end of the period of eligibility for temporary total disability benefits is effectively at maximum medical improvement and thus eligible to bring a permanent total disability claim.  The en banc First District Court of Appeal reversed a prior panel’s decision declaring Florida’s limit for temporary total disability benefits unconstitutional.  Rehearing the case en banc, the court upheld the limit in section 440.15, Florida Statutes, and determined that a worker who exhausted his temporary total disability benefits has reached maximum medical improvement and is therefore eligible to apply for permanent and total benefits.  Despite this seemingly favorable result to the workers’ compensation claimant, the claimant used the opportunity to appeal to the Florida Supreme Court to argue about the constitutionality of the statute.  In conjunction with numerous other amici, the Florida Justice Reform Institute filed a brief in support of the scheme’s constitutionality.  In spite of those efforts, the Florida Supreme Court held that the statute ending disability benefits prior to a worker attaining maximum medical improvement was unconstitutional as a denial of the right of access to courts.

FJRI represented by William H. Rogner

Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016)

This case concerned the constitutionality of the statutory formula for calculating the attorney’s fee award for a prevailing claimant in a workers’ compensation case.  The First District Court of Appeal rejected the claimant’s arguments that the statutory formula runs afoul of the constitutional principles of equal protection, due process, and access to the courts.  On appeal to the Florida Supreme Court, the Florida Justice Reform Institute filed an amicus curiae brief in which it argued that the attorney fee formula does not violate the constitution and instead promotes the objective of providing an efficient system of delivering benefits to injured workers that can be maintained at a reasonable cost to employers.  However, the Florida Supreme Court disagreed, and held that the statutory formula violated due process because it created an “irrebuttable presumption” that precludes any consideration of whether the fee award is “reasonable.”  In dissent, Justice Canady said that the majority had ignored that the statutory formula embodies a legislative policy determination that there should be a reasonable relationship between the value of the benefits obtained in litigating a workers’ compensation claim and the amount of attorney’s fees the employer/carrier is required to pay to the claimant. 

FJRI represented by Mark K. Delegal and Matthew H. Mears of Holland & Knight LLP, and William W. Large.

                      


Stahl v. Hialeah Hosp., 191 So. 3d 883 (Fla. 2016)

This was an appeal from a First District Court of Appeal decision rejecting a petitioner’s challenges to amendments to the workers’ compensation law that: (1) added a $10 copay to medical visits after a claimant attains maximum medical improvement; and (2) eliminated permanent partial disability benefits.  On appeal to the Florida Supreme Court, the Florida Justice Reform Institute argued that the district court of appeal lacked jurisdiction to consider the constitutionality of the challenged statutes, and consequently the Florida Supreme Court should not entertain review.  The petitioner had failed to litigate his constitutional claims and failed to establish he had standing to raise them.  After hearing oral argument, the Court agreed with the Institute’s view, discharging jurisdiction and dismissing review.

FJRI represented by Katherine E. Giddings and Diane G. DeWolf of Akerman LLP, and William W. Large.

                            

Fla. Dep’t of Transp. v. Schwefringhaus, 188 So. 3d 840 (Fla. 2016)

In this case, CSX Transportation (“CSX”) settled a negligence action brought by plaintiffs who were injured in an accident at a railroad crossing.  Following settlement with the plaintiffs, the trial court entered a judgment requiring the Florida Department of Transportation (“FDOT”) to indemnify CSX pursuant to a crossing agreement which had allowed the state to construct and maintain a road over CSX’s tracks.  FDOT defended on the basis of sovereign immunity, despite the clear language of the indemnity provision in the crossing agreement with CSX and despite accepting the benefits of that agreement for nearly 80 years.  The Second District Court of Appeal agreed with CSX, but certified the issue to the Florida Supreme Court as presenting a question of great public importance.  The Florida Justice Reform Institute wrote an amicus curiae brief in support of CSX, contending that FDOT should be bound by the agreement and that, in any event, FDOT was estopped from now repudiating its express promise to indemnify CSX for FDOT’s own negligence.  The Florida Supreme Court agreed that FDOT was bound to the indemnity agreement.  The Court held that FDOT’s predecessor was authorized to enter into the crossing agreement including the indemnity provision, and consequently, FDOT could not invoke sovereign immunity to defeat its obligations under the crossing agreement.  The Court also explicitly acknowledged the Institute’s participation as amicus curiae in support of CSX in the written opinion.

FJRI represented by Stephen H. Grimes and Matthew H. Mears of Holland & Knight LLP, and William W. Large.

Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d 1247 (Fla. 2015)

Joerg presented the question of what evidence a jury should be allowed to consider when determining the future health care expenses of a disabled Medicare beneficiary.  The trial court excluded from the jury all evidence about future health care expenses except for the projected “sticker price” (the full amount billed) for the services.  On appeal to the Florida Supreme Court, the Florida Justice Reform Institute argued that limiting the jury to evidence of the amount billed by providers would violate settled principles of compensatory damages, in that the “sticker price” is often much greater than the amount Medicare allows as payment in full for medical services and thus does not represent the loss the injured plaintiff actually incurs.  Unfortunately, the Florida Supreme Court disagreed, holding that evidence of eligibility for future benefits, including from Medicare, Medicaid, and other social legislation, is inadmissible as collateral sources.

FJRI represented by Mark K. Delegal and Matthew H. Mears of Holland & Knight LLP, and William W. Large.

 

N. Broward Hosp. Dist. v. Kalitan, Case No. SC15-1858 (Fla. 2016), reviewing 174 So. 3d 403 (Fla. 4th DCA 2015)

Kalitan concerns the constitutionality of the per-claimant noneconomic damages caps in personal injury medical malpractice cases.  The Fourth District reversed the trial court and held that the caps were unconstitutional under the Equal Protection Clause.  On appeal to the Florida Supreme Court, the Florida Justice Reform Institute argued that the caps are constitutional, and that any decision that a per-claimant statutory damages cap violates equal protection would tie the hands of the Legislature and render the constitutionality of other damages caps uncertain.  The case awaits a decision by the Florida Supreme Court.

FJRI represented by Mark K. Delegal and Tiffany A. Roddenbury of Holland & Knight LLP, and William W. Large.

Weaver v. Myers, 170 So. 3d 873 (Fla. 1st DCA 2015) (appeal to the Florida Supreme Court remains pending, see Case No. SC15-1538)

In Weaver, a plaintiff lodged constitutional challenges to 2013 amendments to the medical malpractice presuit notice statute, specifically amendments (1) allowing for ex parte interviews between potential defendants and the potential claimant’s treating health care providers, and (2) requiring the potential claimant to sign a waiver of federal privacy protection for certain medical information prior to initiating a medical malpractice suit.  The Florida Justice Reform Institute and the Florida Medical Association filed a joint amicus curiae brief, arguing that these provisions promote the statute’s overall objective of encouraging the settlement of meritorious medical malpractice claims without resort to litigation, and that these provisions do not violate the constitution.  The First District Court of Appeal rejected all the plaintiff’s arguments and upheld the amendments.  An appeal to the Florida Supreme Court is currently pending.

FJRI represented by Mark K. Delegal and Stephen H. Grimes of Holland & Knight LLP, and William W. Large.

                             

Cammarata v. State Farm Fla. Ins. Co., 152 So. 3d 606 (Fla. 4th DCA 2014), review denied, 171 So. 3d 120 (Fla. 2015)

In Cammarata, the Fourth District Court of Appeal held that an insurer’s liability for coverage and the extent of damages, and not an insurer’s liability for breach of contract, must be determined before a bad faith action becomes ripe.  That decision conflicted with a decision of the Third District Court of Appeal that had found that an insurer’s liability for breach of contract is necessary before a bad faith action accrues.  In an amicus curiae brief, the Florida Justice Reform Institute urged the Fourth District to certify the conflict with the Third District to the Florida Supreme Court for resolution.  The Fourth District did so, but the Florida Supreme Court declined to hear the case.

FJRI represented by Mark K. Delegal and Matthew H. Mears of Holland & Knight LLP, and William W. Large.

 

State of Florida v. Fla. Workers’ Advocates, 167 So. 3d 500 (Fla. 3d DCA 2015) 

In this case several advocacy groups exploited an ordinary workers’ compensation case to advance a challenge to the exclusive remedy provision of Florida’s Workers’ Compensation Law.  The Florida Justice Reform Institute, in conjunction with the Florida Chamber of Commerce, filed an amicus curiae brief in support of upholding the provision.  The Third District Court of Appeal reversed the trial court’s decision that the law was unconstitutional.  When the defendant employer dismissed its affirmative defense of workers’ compensation immunity, the court held, the workers’ compensation law issues were removed from the case and the challenge to the constitutionality of the provision of the workers’ compensation law became moot. The advocacy groups sought review by the Florida Supreme Court, which the Court denied.  Consequently, the Third District's decision was allowed to stand. 

FJRI represented by Katherine E. Giddings, Kristen M. Fiore, and Gerald B. Cope, Jr. of Akerman LLP, and William W. Large.

                             

Murphy v. Dulay, 768 F.3d 1360 (11th Cir. 2014)

This case involved a federal preemption challenge to the Florida statute requiring that a potential medical malpractice plaintiff execute a written authorization form as a prerequisite to filing suit.  That authorization form allows the prospective defendant to obtain documents and conduct ex parte interviews of the prospective plaintiff’s medical providers on matters related to the medical malpractice claim.  On appeal to the U.S. Court of Appeals for the Eleventh Circuit, the Florida Justice Reform Institute submitted an amicus brief in which it argued that the presuit authorization form requirement is not contrary to or preempted by the Health Insurance Portability and Accountability Act (“HIPAA”).  The Eleventh Circuit agreed, finding that the Florida statute is entirely consistent with HIPAA and that HIPAA authorizations do not need to be signed voluntarily to be valid.

FJRI represented by Gigi Rollini of Messer Caparello, P.A. and William W. Large.

 

Morales v. Zenith Ins. Co., 152 So. 3d 557 (Fla. 2014)

The case tested Florida’s workers’ compensation exclusive remedy provision which immunizes an employer and its employees from tort liability for covered, work-related injuries.  A worker’s estate sued the worker’s employer for wrongful death after securing an approved settlement for workers’ compensation death benefits.  When the insurer refused to pay the $9.5 million wrongful death judgment, the estate filed an action in state court, claiming that the insurer had breached its insurance policy with the employer.  The insurer removed the case to federal court and sought summary judgment on numerous bases, including that the estate had elected workers’ compensation benefits as its exclusive remedy and the insurance policy itself excluded coverage of such a tort judgment.  A federal appellate court certified questions of unsettled Florida law to the Florida Supreme Court.  The Florida Justice Reform Institute and the Florida Chamber of Commerce filed an amicus curiae brief in support of the insurer, arguing that permitting the estate to recover the wrongful death judgment would defeat the purpose of the workers’ compensation system and encourage non-meritorious civil suits by injured employees.  The Florida Supreme Court held that the workers’ compensation exclusion in the policy excluded coverage of the estate’s tort judgment against the employer, and that the estate had elected workers’ compensation benefits as its exclusive remedy.

FJRI represented by Katherine E. Giddings and Nancy Mason Wallace of Akerman LLP, and William W. Large.

Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014)

In this case the Florida Supreme Court was called upon to decide whether the statutory cap on noneconomic damages in medical malpractice claims violated the equal protection clause of the Florida constitution.  The Florida Justice Reform Institute filed an amicus brief in support of upholding the statutory cap as constitutional under equal protection, which demands only a rational basis for the cap.  Here, that rational basis was to address the medical malpractice insurance crisis based on findings that medical malpractice liability insurance premiums had skyrocketed as the result of increased payments to claimants in medical malpractice lawsuits.  The Florida Supreme Court rephrased the question as whether the statutory cap on wrongful death noneconomic damages violates the right to equal protection, which the Court answered in the affirmative, concluding that no medical malpractice crisis exists to justify the differential treatment of medical malpractice plaintiffs.

FJRI represented by William W. Large.

 

State v. Barati, 150 So. 3d 810 (Fla. 1st DCA 2014)

The issue before the First District Court of Appeal in Barati was whether the State of Florida, through the state’s Attorney General, has the authority to dismiss a False Claims Act (“FCA”) lawsuit the State deems frivolous without the relator’s consent.  The relator filed a motion to strike the Attorney General’s notice of dismissal, arguing that the Attorney General only has the power to dismiss whistleblower suits where she has intervened.  The Florida Justice Reform Institute filed an amicus curiae brief supporting the State’s authority to voluntarily dismiss frivolous suits brought in the name of the State.  Ultimately the First District Court of Appeal decided that it could not rule on whether the State has the authority to unilaterally dismiss a FCA suit because the trial court had not ruled on its jurisdiction to consider the case in the first instance.

FJRI represented by William W. Large, and John T. Boese and Kayla Stachniak Kaplan of Fried, Frank, Harris, Shriver & Jacobson, LLP.

 

Franks v. Bowers, 116 So. 3d 1240 (Fla. 2013)

In Franks, the estate of a patient filed a lawsuit against a physician and medical practice for alleged medical malpractice resulting in the patient’s death.  The physician and medical malpractice moved to compel arbitration based on the financial agreement the patient signed prior to his surgery.  The estate alleged that the financial agreement was void under the public policy enunciated in Florida’s medical malpractice law, as the agreement did not provide the same remedies as provided by the law.  The Florida Justice Reform Institute, in conjunction with the Florida Medical Association and the Florida Osteopathic Medical Association, filed an amicus curiae brief arguing that nothing in the law prohibits voluntary agreements outside the statutory framework to arbitrate disputes or to impose limits on damages.  Unfortunately, the Florida Supreme Court disagreed, and held that the damages clause of the arbitration provision violates the public policy evinced in the medical malpractice law and could not be enforced because the agreement did not include the law’s “substantial incentives” for claimants to submit to arbitration.

FJRI represented by Cynthia S. Tunnicliff and Gerald Don Nelson Bryant IV of Pennington, Moore, Wilkinson, Bell, and Dunbar, P.A.

 

Franks v. Bowers, 116 So. 3d 1240 (Fla. 2013)

In Franks, the estate of a patient filed a lawsuit against a physician and medical practice for alleged medical malpractice resulting in the patient’s death.  The physician and medical malpractice moved to compel arbitration based on the financial agreement the patient signed prior to his surgery.  The estate alleged that the financial agreement was void under the public policy enunciated in Florida’s medical malpractice law, as the agreement did not provide the same remedies as provided by the law.  The Florida Justice Reform Institute, in conjunction with the Florida Medical Association and the Florida Osteopathic Medical Association, filed an amicus curiae brief arguing that nothing in the law prohibits voluntary agreements outside the statutory framework to arbitrate disputes or to impose limits on damages.  Unfortunately, the Florida Supreme Court disagreed, and held that the damages clause of the arbitration provision violates the public policy evinced in the medical malpractice law and could not be enforced because the agreement did not include the law’s “substantial incentives” for claimants to submit to arbitration.

FJRI represented by Cynthia S. Tunnicliff and Gerald Don Nelson Bryant IV of Pennington, Moore, Wilkinson, Bell, and Dunbar, P.A.

Nuñez v. GEICO Gen. Ins. Co., 117 So. 3d 388 (Fla. 2013)

On questions of unsettled Florida law certified by a federal appellate court, the Florida Supreme Court was asked to decide whether an insurer can require an insured to attend an examination under oath (an “EUO”) as a condition precedent to recovery of personal injury protection (“PIP”) benefits.  The Florida Justice Reform Institute wrote an amicus brief arguing that the legislative history of section 627.736, Florida Statutes, evinced a clear intent to permit insurers to require just that.  The Florida Supreme Court held that EUO conditions are invalid under the law that existed prior to January 1, 2013, but acknowledged that the statute had been amended to allow insurers to require EUOs as a prerequisite to receiving PIP benefits going forward.

FJRI represented by Cynthia S. Tunnicliff and Gerald Don Nelson Bryant IV of Pennington, Moore, Wilkinson, Bell, and Dunbar, P.A.

GEICO Gen. Ins. Co. v. Virtual Imaging Servs., 141 So. 3d 147 (Fla. 2013)

In this case the Florida Supreme Court was tasked with deciding whether the fee schedules set forth in section  627.736(5)(a), Florida Statutes, authorize an insurer to limit reimbursements for medical services rendered to an insured without giving notice in the insurance policy of the insurer’s election to use the schedules for calculating reimbursements.  As amicus curiae, the Florida Justice Reform Institute argued that the intent of the Legislature’s enactment of a comprehensive fee schedule was to definitively cap reimbursement of reasonable medical expenses—not to establish an alternative reimbursement methodology.  Despite the Legislature’s clear intent, the Florida Supreme Court held that an insurer must explicitly notice its election to use the schedules for calculating reimbursements in the policy because the personal injury protection benefits statute permits but does not require the insurer to use the fee schedules for calculating reimbursements.

FJRI represented by Cynthia S. Tunnicliff and Gerald Don Nelson Bryant IV of Pennington, Moore, Wilkinson, Bell, and Dunbar, P.A.

Goheagan v. Am. Vehicle Ins. Co., 107 So. 3d 433 (Fla. 4th DCA 2012), review denied, 130 So. 3d 1275 (Fla. 2013)

In Goheagan, the Fourth District Court of Appeal examined a bad faith claim alleging that an insurer had failed to protect its insured from an excess judgment by not making a timely offer of settlement to the party injured by the insured.  The insurer defended on the basis that, during the relevant time, the injured party was in a coma, and despite many attempts to obtain essential information to make an offer of settlement, the injured party’s family would not provide the injured party’s attorney’s name or the information necessary to make the offer of settlement.  Consequently it was unclear to whom the insurer should make an offer of settlement.  The trial court granted summary judgment to the insurer.  On appeal, the Florida Justice Reform Institute appeared as amicus curiae in support of the insurer, arguing that these facts do not give rise to bad faith given the challenging circumstances the insurer faced and the insurer’s formidable efforts to make a timely offer of settlement.  In spite of these efforts, the Fourth District Court of Appeal held that there was a disputed issue of fact regarding whether the insurer committed bad faith, precluding summary judgment.

FJRI represented by George N. Meros, Jr. and Andy V. Bardos of GrayRobinson, P.A.

 

Gessa v. Manor Care of Fla., Inc., 86 So. 3d 484 (Fla. 2011)

In Gessa, a nursing home resident challenged her agreement with the nursing home which compelled arbitration, capped noneconomic damages at $250,000, and waived punitive damages.  The Florida Justice Reform Institute and the Florida Medical Association appeared as amici in support of the nursing home, and argued that public policy favors both arbitration and the limitation of remedies through arbitration agreements as a more effective and less costly means of dispute resolution.  Despite the strong public policy in favor of arbitration, the Florida Supreme Court found that the limitation of liability provisions were unconscionable, holding that any arbitration agreement that diminishes the statutory remedies afforded to a nursing home resident is unenforceable as against public policy.

FJRI represented by Cynthia S. Tunnicliff and Ashley P. Mayer of Pennington, Moore, Wilkinson, Bell, and Dunbar, P.A.

Perera v. U.S. Fid. & Guar. Co., 35 So. 3d 893 (Fla. 2010)

In Perera, the issue was whether a cause of action for third-party bad faith is stated against an indemnity insurer when the insurer’s actions did not cause the damages to the insured and the insured faced no liability in excess of the insured’s policy limits.  In conjunction with the U.S. Chamber of Commerce, the Florida Justice Reform Institute filed an amicus curiae brief urging the Florida Supreme Court to not extend the cause of action for bad faith to insureds who suffer no actual damages through an excess verdict.  The Florida Supreme Court agreed, holding that a bad faith claim against an insurer requires a causal connection between the alleged bad faith and the exposure of the insured to liability in excess of the insured’s policy limit.

FJRI represented by George N. Meros, Jr. and Andy V. Bardos of GrayRobinson, P.A., and Robin S. Conrad.

 

Weingrad v. Miles, 29 So. 3d 406 (Fla. 3d DCA 2010), overruled by Miles v. Weingrad, 164 So. 3d 1208 (Fla. 2015)

The plaintiff contended that the statutory cap on noneconomic damages could not apply retroactively to her medical malpractice claim, which resulted from an alleged incident that occurred a few months before the statutory cap’s effective date.  The Florida Justice Reform Institute filed an amicus curiae brief in support of the retroactive application of the statutory cap.  Here, the Third District Court of Appeal agreed with the defendant doctor and FJRI, holding that the statutory cap barred part of the plaintiff’s claim.  The plaintiff had no vested right to a particular damage award and thus suffered no due process violation with retroactive application of the statutory cap to her cause of action.  However, the Florida Supreme Court held in a subsequent, related appeal that the cap on noneconomic damages cannot be applied retroactively.

FJRI represented by William W. Large.

Raphael v. Schechter, 18 So. 3d 1152 (Fla. 4th DCA 2009)

In Raphael a patient fought the retroactive application of the statutory cap on noneconomic damages to his medical malpractice claim arising from an incident that occurred before the cap’s effective date.  The Florida Justice Reform Institute filed an amicus curiae brief in support of retroactive application of the statutory cap. The Fourth District Court of Appeal held that the statutory cap on noneconomic damages in medical malpractice cases did not apply retroactively to the patient’s action because the action had “accrued” prior to the effective date of the statute.

FJRI represented by William W. Large.

 

BDO Seidman, LLP v. Banco Espirito Santo Int’l, Ltd., 998 So. 2d 1 (Fla. 3d DCA), review denied, 996 So. 2d 211 (Fla. 2008)

When a trial court allowed a judgment debtor to post a $50 million bond to stay execution of a judgment as permitted by section 45.045, Florida Statutes, the judgment creditor challenged the entry of a stay, arguing that the statute unconstitutionally infringed upon the Florida Supreme Court’s rulemaking authority over procedural matters.  The Florida Justice Reform Institute filed an amicus curiae brief in support of the statute’s constitutionality, contending that the bond cap appropriately limited the amount required to secure a stay in order to protect the right to appeal.  The Third District Court of Appeal agreed.  Rather than an impermissible intrusion into the practice and procedure of the judiciary, the court found that section 45.045 concerned substantive rights to property and to appeal.

FJRI represented by William W. Large.

Murray v. Mariner Health/ACE USA, 994 So. 2d 1051 (Fla. 2008)

This case concerned whether Florida’s Workers’ Compensation Law sets forth the sole standard for determining a claimant’s attorney’s fees in workers’ compensation cases, or whether courts may still use the criteria set forth in case law for determining a “reasonable attorney’s fee.”  The Florida Justice Reform Institute and several other amici filed an amicus brief in which they argued that the intent was to wholly replace the discretionary “reasonable attorney’s fee” standard in order to curb the unsustainable growth in workers’ compensation litigation.  The Florida Supreme Court disagreed, holding that the claimant is entitled to a “reasonable attorney’s fee” as defined in case law.  In reaction to this case, the Florida Legislature amended the statute to remove any ambiguity that it was intended to replace the standard found in case law.

FJRI represented by George N. Meros, Jr. and Andy V. Bardos of GrayRobinson, P.A.