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Disney, SeaWorld accident lawsuits face tough odds

September 13, 2010/in Orlando Sentinel

Disney, SeaWorld accident lawsuits face tough odds

Florida law protects Disney, other theme parks against wrongful death lawsuits.
September 13, 2010 | By Jason Garcia, Orlando Sentinel

They are two of Central Florida’s biggest and best-known employers — and both face the prospect of potentially ugly lawsuits stemming from a worker’s death on the job.

And yet Walt Disney World, which is being sued by the mother of a monorail driver killed in a train collision in July 2009, and SeaWorld Orlando, which is bracing for a similar suit from the husband of a killer-whale trainer drowned by an orca last February, are well insulated.

The reason: Florida law gives employers near-ironclad protection from lawsuits sparked by on-the-job injuries and fatalities. It’s a legacy of a 7-year-old overhaul of the state’s workers’ compensation laws championed by former Republican Gov. Jeb Bush and Florida’s business lobby.

Critics say the system is too heavily slanted in favor of businesses.

The tight clamp on lawsuits is “a horrible burden on the injured worker,” said Matthew Noyes, a personal-injury lawyer who heads the workers’ compensation group at the firm Perenich, Caulfield, Avril & Noyes in Sarasota. “The practical effect is that employers don’t feel the pressure to make their workplace as safe as possible for their workers.”

Boosters of the current laws argue that the system holds down costs by ensuring standardized payments in accidents — and by protecting businesses from the threat of outsized jury awards.

“Workers’ comp is very predictable from the insurance perspective, and workers’ comp carriers can price this product and a business and an employer can figure out what the cost is going to be and go forward and do business,” said William Large, president of the Tallahassee-based Florida Justice Reform Institute, a business-financed group that lobbies for tighter lawsuit restrictions. “Tort is very unpredictable.”

Workers’ compensation was originally established to steer claims arising from on-the-job accidents away from courts altogether.

In Florida, as in most other states, most businesses are required to carry workers’ compensation insurance. And when an employee is injured on the job — regardless of who was at fault in the accident — those policies are supposed to ensure prompt payments covering medical costs and lost wages.

Workers gain the ability to obtain payment without having to go through expensive and protracted litigation. But they also lose their ability to sue their employer for larger sums.

In accidents that lead to the death of an employee, cumulative wage payments are capped at $150,000, plus up to $7,500 to cover funeral expenses and — in the cases of surviving spouses — payment of student fees for as many as 1,800 classroom hours at sanctioned career centers or 80 semester hours at community colleges.

Courts have long held that there are some limited exceptions to employers’ immunity from lawsuits. In 1993, for instance, the Florida Supreme Court ruled that businesses were entitled to protections from suits provided they did not intentionally harm employees or engage in conduct that was “substantially certain” to result in injury or death.

Then in 2000, the court opened the window wider: In a case stemming from an explosion at an Alachua County chemical plant that killed one worker and seriously injured another, the court defined “substantially certain” to mean a situation in which a business should have known — rather than actually knew — its actions were likely to lead to the injury or death of a worker.

That ruling outraged Florida’s business community, which was already complaining of widespread workers’ compensation fraud and skyrocketing insurance costs. Companies felt “the language the Supreme Court had put out could really and significantly erode the protections from tort liability that the employers are paying workers’ comp coverage to have,” said Tamela Perdue, general counsel for Associated Industries of Florida, one of the state’s largest business trade groups.

Industry lobbyists found allies in the state Capitol. In 2003, then-Gov. Bush and the Republican-controlled Legislature approved a 182-page rewrite of the state’s workers’ compensation laws that, among many other provisions, increased some benefits and curtailed others while also imposing strict caps on the fees lawyers could earn in such cases. And it dramatically re-strengthened businesses’ lawsuit shield.

Lawmakers abandoned the Supreme Court’s “should have known” standard, instead deciding that lawsuits in worker injuries could go forward only if an employer engaged in conduct that it “knew” was “virtually certain” to lead to injury or death. And they added a provision that requires any injured employee suing his or her employer to also prove that the risk was not apparent and that the business deliberately concealed the danger.

What’s more, the legislation requires that employees prove it all by “clear and convincing evidence” — a higher bar than another commonly used legal threshold, “preponderance of the evidence.”

It may be the biggest legal hurdles facing the families of Austin Wuennenberg, the 21-year-old Disney monorail driver killed July 5, 2009, and Dawn Brancheau, the 40-year-old SeaWorld killer-whale trainer drowned Feb. 24 of this year. Wuennenberg’s mother has already filed a wrongful-death lawsuit against Disney; Brancheau’s husband has hired lawyers but has so far not sued.

Both parties would appear to have ammunition for suits: Federal regulators investigating the accidents cited Disney with a “serious” safety violation and noted multiple monorail-policy lapses and separately charged SeaWorld with an even-stiffer, “willful” violation and recommended that trainers never again be allowed unprotected contact with the killer whale that killed Brancheau.

But Noyes, the Sarasota personal-injury lawyer, called the lawsuit requirements set by Florida law “nearly impossible” to meet.

Disney and SeaWorld, for their parts, declined to discuss the litigation in detail. “At this point the most appropriate way to respond to this legal matter is through the court process,” said Disney spokeswoman Andrea Finger.

“Florida law concerning workers’ compensation applies to the accident Feb. 24 that resulted in the tragic death of Dawn Brancheau,” added SeaWorld Parks & Entertainment spokesman Fred Jacobs. “Any discussion of litigation outside that context is premature.”

Jason Garcia can be reached at [email protected] or 407-420-5414.

http://articles.orlandosentinel.com/2010-09-13/business/os-cfb-cover-death-suits-091310-20100912_1_accident-payments-compensation-laws/2

Reasons for Optimism About Recovery?

March 26, 2010/in Orlando Sentinel

Reasons for optimism about recovery?

March 26, 2010 | Beth Kassab

Dare I say it? Things are looking up for businesses.

It’s too early to call the economic recovery a solid upturn. The current upward path is still plastered with warning signs: “Beware potential dips ahead.”

Yet three developments during the past week converged to lend new optimism about our financial mending.

Tort Reform

The first is a package of bills that is sailing through the Legislature with blessings from both the business lobby and the trial lawyers.

The foes came together to usher through significant protections for businesses against lawsuits — changes that could save them millions of dollars a year in claims — while the lawyers scored a few wins of their own.

The idea is that businesses would use those savings, however big or small, to steady their balance sheets.

“If you look at most retailers with low margins and high competition, you find that those costs are passed on to customers,” said William Large, president of the business-backed Florida Justice Reform Institute.

It remains to be seen, however, if businesses will now also pass anticipated savings from the legislation on to customers.

Publix Super Markets Inc., which lobbied hard for a bill that makes it more difficult for customers to sue the store if they, say, slip and fall on a banana peel in the produce aisle, wins the tallest tort reform trophy.

The bill, one of four in the package, essentially puts the burden on the customer to prove the store was negligent, a reversal of a 2001 state Supreme Court decision against Publix that retailers say opened up the floodgates for fraudulent slip and fall cases in Florida.

According to Large’s group, Publix’s average payments for slip and fall cases soared 141 percent for its Florida stores after the court ruling compared with an increase of just 59 percent at its stores outside Florida.

Big tourist attractions like Walt Disney World will also benefit from the legislation, but that may be little consolation considering Disney’s loss on another one of its priorities that was heavily watered down in the name of compromise.

That bill sought to allow parents to waive the right to sue when their children are hurt or killed on rides or other activities because of a business’ negligence. The new version only allows parents to sign away their right to sue because of an “inherent risk” — such as a big wave knocking over a jet ski — but leaves companies open to far more troublesome negligence lawsuits.

Overall, though, businesses appeared to exercise improved clout over the trial lawyers with longtime advocates John Thrasher, R-St. Augustine, and Joe Negron, R-Stuart, taking seats in the Senate this year.

Mortgage write-downs

Bank of America last week unveiled a new program in which it will forgive up to 30 percent of the principal on tens of thousands of home loans in which the owners are underwater.

The once unthinkable plan now could be poised to become the new industry standard in dealing with the ongoing foreclosure crisis. With Bank of America coming around to the idea, other lenders are expected to follow.

That could go a long way toward keeping people in their homes and making payments rather than walking away. And, in turn, could help steady the housing market and increase consumer confidence.

More hiring?

On Friday we learned state unemployment crept up slightly to 12.2 percent in February from 12 percent in January. But on the bright side, hiring was also up with a gain of 26,300 jobs from January — the first positive month-over-month job numbers since November 2007.

There’s no guarantee the growth will be sustained, but as we move into the summer, it’s possible that increased seasonal hiring by the tourism industry could help keep the momentum going.

http://articles.orlandosentinel.com/2010-03-26/business/os-cfb-kassab-tort-reform-03292010-20100326_1_tort-reform-jet-ski-businesses

Targeting the Davids as well as the Goliaths

October 17, 2007/in Orlando Sentinel

Targeting the Davids as well as the Goliaths

OTHER VIEWS

MY WORD – William Large

October 15, 2007

We’ve all heard the stories and are all too familiar with the resulting lawsuits: a major restaurant chain is sued for serving scalding hot coffee without a warning; a beverage distributor is sued for flammable alcohol that burnt a woman in a bar where the bartender was pouring “flaming shots.”

These types of personal-injury lawsuits have become so commonplace it’s no longer surprising to read about them.

However, I found myself reading the Orlando Sentinel in disbelief last week, as I struggled to comprehend the details of a lawsuit resulting from a toddler falling in a family’s backyard pool. To my amazement the lawsuit highlighted in the article was not filed by the family as a result of the child’s accident; instead it was filed against the family by one of the emergency responders.

In the article, “Cop Who Fell on the Job Sues Family of Baby Who Almost Drowned,” the Sentinel details the lawsuit targeting the family, which the suit claims was negligent for not cleaning up a puddle of water left on the floor after the infant’s mother pulled his lifeless body from the pool.

While the lawsuit has been dropped, the mere fact it was even filed makes it clear that victims like the Cosmillo family are just as vulnerable as businesses are to be targeted for personal-injury lawsuits.

The lawsuit is outrageous at best in its attempt to place responsibility for the damages sustained by an on-duty officer who was responding to the scene of an accident.

At worst, it exemplifies the exploitation of our civil justice system.

The egregious nature of this lawsuit is worsened by the fact that the city of Casselberry’s workers’ compensation insurance covered the cost of the officer’s medical bills and paid her disability while she was on medical leave as a result of the knee injury she sustained when she slipped in water on the floor near the infant.

Our legal system should ensure that responsible parties are held accountable when they cause damages or injuries. However, this exemplifies how our civil justice system in Florida, and nationwide for that matter, has developed a lucrative, cottage industry whereby some personal-injury attorneys have chipped away at the legal definitions and utilized precarious case law to define what constitutes negligence and file these types of outrageous lawsuits.

It would have been one thing if this had been a leaky faucet the family was aware of that had been leaving puddles on the floor of the home for months and they invited a group of individuals over for a barbeque where someone slipped and hurt himself. But the puddle and injury were the result of a catastrophic response to an emergency situation by all parties, not negligence by any.

William Large is president of the Florida Justice Reform Institute (www.fljustice.org).

https://www.orlandosentinel.com/news/os-xpm-2007-10-15-myword15d-story.html

Reasons for optimism about recovery?

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