The Week in Torts – Cases from the Week of September 9, 2016
FLORIDA LAW WEEKLY
VOLUME 41, NUMBER 36
CASES FROM THE WEEK OF SEPTEMBER 9, 2016
LANGUAGE IN CONSENT DISAVOWING AGENCY RELATIONSHIP BETWEEN DEFENDANT CONTRACTOR AND SHERIFF’S OFFICE, DOES NOT AUTOMATICALLY MEAN NO AGENCY RELATIONSHIP EXISTED IN REALITY; CONTROL THE KEY TO THE INQUIRY.
G4S Secure Solutions, Inc. v. Mowrrow, 41 Fla. L. Weekly D2035 (Fla. 2nd DCA September 2, 2016):
A man died after being severely beaten by a fellow prisoner while being transported to the Pinellas County Sheriff’s Office (PCSO) facility by a contractor’s employee. The plaintiff filed a wrongful death action against the driver and his employer, G4S Secure Solutions, which was handling the prison transport pursuant to an agreement between it and the PCSO. The defendant filed a motion for summary judgment based on limited sovereign immunity arising out of that agreement.
Limited sovereign immunity is available for private parties involved in contractual relationships with the state, if those parties are determined to be acting as agents of the state. The determinative factor is the degree of control retained or exercised by the state agency.
An express intent regarding agency status may be considered in deciding the issue, but it is not dispositive. In this case, the agreement between the defendant and PCSO contained language expressing intent to avoid the creation of an agency relationship. The agreement stated that G4S would remain an independent contractor and was not an agent, etc. with PCSO. The agreement gave the defendant sole responsibility to hire, schedule, direct, control and discharge its employees, and also required it to maintain liability insurance in the amount greater than the sovereign immunity caps. It contained an indemnification and hold harmless provision.
However, PCSO participated in the interviews of the potential G4S hires and had final say over who was hired. The sheriff also had the ability to have the defendant employee fired at will, conducted training of the employees, trained according to its own procedures, and required it to comply with its standards, policies, directives and training.
The records show that PCSO maintained control over the defendant’s budget in relation to the agreement, had the final say on wages and billing rates, and was highly involved in the day-to-day operations of the defendant.
Because the court found that the sheriff’s office maintained a high degree of control over the contractor, there were no questions of fact, and the application of the law to the facts conferred limited immunity upon the independent contractor security provider for these purposes. The court reversed the trial judge’s denial of summary judgment.
EMPLOYEES WORKING FOR DIFFERENT COMPANIES ARE NOT SUBJECT TO THE UNRELATED WORKS EXCEPTION TO WORKERS’ COMPENSATION IMMUNITY.
Wert v. Camacho, 41 Fla. L. Weekly D2042 (Fla. 2nd DCA September 2, 2016):
On rehearing of this workers’ compensation case involving unrelated works exception, the court found that section 440.10(1)(b) did not apply to create an employment relationship between the two subcontractors. While two subcontractors on the job site were both employees of one of the contractors, they were not part of the same employer that worked with that contractor.
Because, there was no vertical relationship between those two entities and therefore, section 440.10(1)(b) did not deem them to be employed in one and the same business or establishment. Thus, because they were not employees of the same employer, the unrelated works exception could not apply. The court reversed the directed verdict entered for the plaintiff on the lack of workers’ compensation immunity for these defendants, and found it did exist.
WHERE A JURY DETERMINED THAT THE TOTAL AMOUNT OF PAST MEDICAL EXPENSES PLAINTIFF CLAIMED WERE ONLY CAUSED IN PART BY THE ACCIDENT, “COMMON SENSE” (“COMMON SENSE” – REALLY?!) LED TO THE CONCLUSION THAT $10,000 PAID BY THE PIP INSURER WAS DUPLICATED IN THE JURY AWARD–ERROR IN FAILING TO AWARD A SET OFF IN THE FULL AMOUNT OF THE PIP BENEFITS PAID.
Carpenter v. Chavez, 41 Fla. L. Weekly D1998 (Fla. 2nd DCA August 31, 2016):
The plaintiff was injured in an automobile accident. The defendant raised the issue that she was entitled to a set off for the full amount of the PIP benefits.
The jury heard that the plaintiff had a pre-existing condition and awarded the plaintiff $47,000 (out of the $203,000 she asked for) for past medical expenses that were caused by the accident. The jury found the plaintiff did not sustain a permanent injury, and awarded no future damages.
There is no dispute that the plaintiff received her full $10,000 in PIP payments for medical expenses related to the accident. The parties agreed the trial court would conduct a hearing on the PIP set off.
The plaintiff argued that because the jury did not award the full amount of her medical expenses, the court could not determine for which bills the jury made its award, and therefore, the defense could not demonstrate a duplication of benefits.
The defendant argued that the set off of the full amount was the appropriate set off under the “common sense” approach (citing, Aetna v. Lengel). Because the elements of damages the jury awarded were the same type that the PIP policy would have paid, defendant argued the full set off was proper.
The trial court, however, ruled that because 20% of the expenses claimed at trial were awarded by the jury, that the court would grant a set off of only $2,000.
Because the plaintiff claimed total damages were subsumed by the damages covered by the PIP benefits, the appellate court ruled that “a common sense analysis” would find that the $10,000 paid for PIP benefits was duplicated in the $47,000 past medical expense award the jury made, and awarded the full set off.
STATUTE REQUIRES THAT QUALIFIED MEDICAL PROVIDER DETERMINE THAT AN EMERGENCY MEDICAL CONDITION EXISTS FOR BENEFITS UNDER FLORIDA’S PIP STATUTE NOT TO EXCEED $2,500–IF THERE IS NO DETERMINATION OF WHETHER INSURED HAS EMERGENCY MEDICAL CONDITION OR THERE HAS BEEN A DETERMINATION THAT THE INSURED DOES NOT HAVE AN EMERGENCY MEDICAL CONDITION, BENEFITS ARE LIMITED TO $2,500.
Medical Center of the Palm Beaches v. USAA Casualty Insurance Co., a/a/o Carmen Santiago, 41 Fla. L. Weekly D2018 (Fla. 4th DCA August 31, 2016):
Section 627.736(1)(a)(4) requires a determination that an emergency medical condition existed, in order for the benefits to be up to $10,000. If there is no determination of whether the insured has an emergency medical condition or there has been a determination that the insured does not have an emergency medical condition, the benefits are limited to $2,500.
In this case, the insured was injured and went to an urgent care center. The doctor referred her for physical therapy. The physical therapy provider submitted for payment to USAA and received $2,500. USAA requested that the plaintiff provide the determination of the plaintiff’s emergency medical condition by an authorized provider so it could make any additional reimbursement decisions.
Instead, the provider sued USAA for breaching the contract. It subsequently sent USAA a note from the plaintiff’s treating physician, stating that she had an emergency medical condition. Upon receipt of that documentation, USAA paid all of the outstanding charges.
The trial court certified a question of great public importance, asking whether an action by an assignee for no-fault benefits under a policy, or if benefits above $2,500 were only available when there has been a determination by a medical provider authorized by statute that an emergency medical condition exists as defined by the no-fault law.
The Fourth District wrote that section 627.736(1)(a)(4) does limit an insurer’s obligation to provide PIP benefits to $2,500 unless one of the medical providers listed in subparagraph (1)(a)(3) has determined that the injured person had an emergency medical condition. Here, there was eventually a determination submitted about the EMC whereas in one of the cases the court was distinguishing, there had never been such a determination submitted.
USAA had requested a written report of the insured’s medical condition to determine whether the injured victim was entitled to a payment exceeding the $2,500 statutory limit. The plaintiff initially failed to respond to the request, instead submitting a demand letter for payment. It was only after suit was filed that the victim sent a doctor’s note of an EMC. USAA then paid.
The Fourth District held that USAA had the right under section 627.736(6)(b) to request a written report of the insured’s condition. Based on the plain language, USAA was entitled to the report and it could have impacted whether the qualified medical provider had determined that the insured’s injury constituted an emergency medical condition.
Thus, the plaintiff’s demand letter was premature, and although plaintiff filed a demand letter, it had failed to respond to USAA’s request for discovery pursuant to the statute, and thus, USAA did not owe more than the $2,500 until it received the evidence of the EMC.