1 FLORIDA LAW UPDATE Summer 2007 A Newsletter on Developments in the Law for Clients and Friends of Vernis & Bowling UNITED STATES SUPREME COURT ADDRESSES PUNITIVE DAMAGES G. Jeffrey Vernis Managing Partner Palm Beach Liability Department Punitive damages may only be awarded under very specific circumstances and, and in most states, if specific procedures are followed. Punitive damages, which are not ordinarily covered by insurance policies, may have a significant impact in cases involving large or national corporations. Understanding the significance and the procedural requirements of pursuing a claim for punitive damages is important when defending or preparing to defend such a claim. Whether a punitive damages award, which is based in part on a jury s desire to punish a defendant for harming non-parties, is appropriate and whether there should be any limit to the amount of the award are some of the issues addressed by the United States Supreme Court in the narrowly decided case of Phillip Morris USA v. Williams, which was decided on February 20, In that case, a jury found that Jesse Williams death was caused by smoking and that Phillip Morris, knowingly and falsely led him to believe that smoking was safe. The jury awarded the Estate of Williams $821, in compensatory damages, but also awarded $79.5 million in punitive damages. Phillip Morris appealed, arguing the jury awarded punitive damages for injuries to persons not before the court (other smokers) and that the roughly 100 to 1 ratio the punitive damage award bore to the compensatory damages was grossly excessive. In the original trial, Plaintiff s counsel argued to the jury that Phillip Morris not only cause harm to the Plaintiff in this action, but to many people in Oregon. Specifically, they argued think about how many other Jesse Williams in the last forty years in the state of Oregon there have been... In Oregon, how many people do we see outside driving home...smoking cigarettes. Cigarettes are going to kill ten [of every hundred]. Phillip Morris argued that this, among other arguments, persuaded the jury to consider punishing Phillip Morris not only for their harm to this particular Plaintiff, but for all those other smokers in Oregon. In its opinion, the United States Supreme Court stated in our view, the Constitution s Due Process Clause forbids the state to use a punitive damages award to punish a defendant for injury that it inflicts upon non-parties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation. They reasoned that to permit punishment for injuring a non-party victim would add a near standardless dimension to the punitive damages equation. They noted that there was no legal authority to support the use of punitive damage awards for the purposes of punishing a defendant for harming others not in the litigation. Additionally, the Court discussed the issue of caps or limitations on punitive damages awards. Citing its previous decision of State Farm v. Campbell, the Supreme Court stated that the long-standing historical practice of setting punitive damages at two, three or four times the size of the compensatory damages, while non-binding, is instructive and that single-digit multipliers are more likely to comport with due process. In this opinion, the United States Supreme Court expressed its disfavor of punitive damages award in general, and the importance of proper safe guards to prevent grossly excessive awards and constitutionally protected fairness. Should you have any questions concerning this article, please contact G. Jeffrey Vernis at (561) or via at
2 A PRIMER ON RECENTLY ENACTED LAWS IN FLORIDA AFFECTING THE TRUCKING INDUSTRY Kenneth W. Moffet Palm Beach Trucking Liability Chapter 316, Florida Statutes, entitled state uniform traffic control, adopts the federal motor carrier safety regulations found in chapter 49, Code of Federal Regulations(CFR) in the governance of operation of commercial motor vehicles. Recently, some of the Florida statutes have been amended or modified. This article is but a brief summary of some of these newly enacted provisions. As recently as October, 2006, and specifically effective October 1st, 2006, the legislature changed the hours of service(hos) rules for intrastate commerce. These provisions are found in Florida Statute (2)(b)(1) & (2). Essentially, an operator of a commercial motor vehicle not transporting any hazardous materials in amounts which require placarding may, after 8 hours rest, be permitted to drive any part of the first 15 on-duty hours in any 24-hour period, but may not be permitted to operate a commercial motor vehicle after that until the requirement of another 8 hours rest has been fulfilled. In a statute routinely violated by truckers, no vehicle, including cars; suvs; and all other vehicles, may be driven unless the vehicle is loaded as to prevent any of its load from dropping, shifting, leaking, blowing, or otherwise escaping therefrom... Fla. Stat One of the statutes I believe is noteworthy and important to the safety of law enforcement personnel is section This section is commonly referred to as the move over law and most people think it s a new law. In fact, it has been in effect since July 1st, 2002! It imposes a duty on every driver to vacate the lane closest to a parked emergency vehicle making use of any visual signals or a wrecker displaying amber rotating or flashing lights that is performing a recovery or loading on the roadside as soon as it is safe to do so. Furthermore, a motorist shall slow to a speed that is 20 miles per hour less than the posted speed limit when the posted speed limit is 25 miles per hour or greater (always the case on an interstate highway). Should you have any questions concerning this article, please contact Ken Moffet at (561) or via at KEEP ON TRUCKIN!!! KEEP ON TRUCKIN!!! KEEP ON TRUCKIN!!! KEEP ON TRUCKIN!!! KEEP ON TRUCKIN!!! ANNOUNCEMENTS & SPEAKING ENGAGEMENTS G. Jeffrey Vernis, Managing Partner (Palm Beach) and John Unzicker, Managing Attorney (Pensacola) Have been selected by Law and Politics, Super Lawyer Magazine, as one of Florida s super lawyers in personal injury defense litigation for We are pleased to announce the relocation of our Jacksonville office. Vernis & Bowling of North Florida, P. A. has moved to 4309 Salisbury Road, Jacksonville, Florida Vernis & Bowling is pleased to announce that SIU Attorney Melissa McCullough (DeLand), has been appointed by the National Association of Professional Insurance Investigators (NSPII) to serve as the Florida Delegate to NSPII's National Board. Melissa will represent the interest of the NSPII Florida Chapter at the National Board. We are pleased to announce that John Unzicker (Pensacola) has been appointed to Chairman of the Florida Bar Workers' Compensation Certification Committee. This Committee is responsible for preparing and rating the Board Certification Examination taken by Workers' Compensation Attorneys.
3 We are pleased to announce the addition of the following attorneys to the Vernis & Bowling team: Terrence Lavy Fort Myers Florida-Law.com Cary Woods, II Miami Florida-Law.com Brian Mills Jacksonville Florida-Law.com Terrence L. Lavy was born in Syracuse, NY in He obtained a Bachelor of Science in Criminal Justice with Psychology minor from SUNY College at Buffalo in In 1993, Terry graduated from Rutgers School of Law, Camden, NJ with a Certificate in International Law. Prior to coming to Vernis & Bowling, Terry practiced law in New Jersey and Pennsylvania. For several years, he served as an Assistant City Attorney for Camden NJ where he defended the City at trial and appellate courts. His work included contractual matters, torts, civil rights and employment discrimination. This included trials in both state and federal courts. Terry successfully argued the application of the NJ Tort Claims Act to an accidental police shooting before the NJ Supreme Court. Alston v. City, 168 NJ 170 (2001). In 2003, Terry was recruited by The Philadelphia Contributionship Insurance Company to serve as its in-house counsel. There, he expanded the operations of the legal department and established a record of successful trials and arbitrations. He represented the Contributionship in coverage disputes and its policy holders in defense of negligent and intentional torts, defamation, wrongful death and catastrophic injury cases. Terry moved to Southwest Florida where he joined Vernis & Bowling in His practice is primarily civil defense litigation and insurance issues. Cary Woods, II attended Florida State University and graduated with a Bachelor of Arts degree in Political Science and International Affairs and a minor in Communications. After college, Cary had the valuable opportunity to work for The Honorable Christ Craft in the Shelby County Government, Criminal Division II in Memphis, Tennessee as a courtroom clerk. This court is one of only three major violator courtrooms in Memphis, Tennessee. Cary attended St. Thomas University School of Law and attained a Juris Doctorate degree in During his time in law school he furthered his study of law abroad while studying in El Escorial, Spain. He also earned two book awards for his outstanding participation and knowledge in Constitutional Law II and Trial Advocacy, which was taught by the now retired Honorable Judge Levy of the Third District Court of Florida. While attending law school, Cary worked for Vernis & Bowling as a law clerk for a year and a half before becoming an attorney for Vernis & Bowling in Cary s extra curricular activities in law school extended to being the treasurer for St. Thomas Law School s Business Law Society and volunteering for United Way/Hands on Miami. Cary is a member of North Dade Bar Association, Dade Bar Association and Young Lawyers Division. Brian Mills was born in Live Oak, Florida in He attended the University of West Florida and received his B.A. degree in English in Brian received his Juris Doctorate degree from Florida Coastal School of Law in Brian s professional experience includes litigation in premises and auto liability, construction law, commercial law, employment law and consumer law. His professional associations include Florida Bar Association and American Bar Association (with section membership in Litigation, Business Law with E-Commerce and Intellectual Property subcommittees, and Real Property, Probate and Trust), Phi Delta Phi legal fraternity, and Sigma Alpha Epsilon social fraternity. Brian is licensed to practice in the State of Florida and the Northern and Middle Federal Districts of Florida.
4 FLORIDA LAW UPDATE Summer 2007 VERDICTS & DISPOSITIONS Carl Bober and Jose Font (Ft. Lauderdale) obtained a defense verdict in favor of their client, Citizens Property Insurance Corporation, in a jury trial that took place in Fort Lauderdale, Broward County, and that was styled Adolfo & Estee Gonzalez v. Citizens Property Ins. Corp. Plaintiffs in this case had a homeowner's insurance policy with Citizens covering their five bedroom home. In February 2003, they sustained a total fire loss at their residence. Plaintiffs filed suit against Citizens alleging that it breached the contract by failing to pay them over $218, for substantial damages sustained to the home and their contents. In defense of Citizens, it was argued that the Plaintiffs had made material misrepresentations, false statements, and/or engaged in fraudulent conduct related to their claim, specifically in the submission of allegedly altered and fake documentation. Plaintiff's disputed this defense, however, the jury expressly found that Citizens did not breach the contract of insurance. Final judgment was entered in favor of Defendant Citizens and our motion to tax costs against the Plaintiffs was granted. Carl Bober (Ft. Lauderdale) successfully argued and obtained final summary judgment in the case of Josh Johnson v Jose Burgos, a negligence action brought before the Hon. Ronald Friedman in Miami-Dade County, Florida. Plaintiff was an employee of a major termite fumigation company which was tenting our client's/the Defendant's home. While Plaintiff was physically on the roof of the Defendant's residence during the tenting process, he came into contact with a Florida Power and Light ("FPL") service cable which fed electricity through a mast on the roof and was nearly electrocuted, causing him substantial personal injuries. Plaintiff claimed that the FPL service cable was corroded/defective at the point it entered the mast on our client's roof, and that as the homeowner, the insured owed a duty to keep the premises in a reasonably safe condition and to warn of dangerous conditions. After our filing of a Motion for Summary Judgment which argued that our client/homeowner, despite the fact that the accident occurred on his roof, had no control over the allegedly defective FPL cable that he did not own nor maintain, as well as the fact that the homeowner had no notice actual or constructive of a dangerous condition, the Judge granted our motion and final judgment was entered in favor of the Defendant. The Trial Judge thereafter granted our Motion seeking Attorney's Fees and Costs from the Plaintiff pursuant to the Proposal for Settlement served upon him. Ken Moffet and Jason Blevins, (Palm Beach) obtained a defense verdict on behalf of Enterprise Leasing and Stephen Simone, the renter, in Volusia County, Daytona Beach, after a three day jury trial in January, 2007.The Plaintiff, Larry Weinraub, was rear-ended by the out-of-state renter, Simone, and Larry Weinraub claimed significant injuries. The jury was unpersuaded and returned with a defense verdict after an hour and a half of deliberations. Larry Wang (Jacksonville) obtained a defense verdict in the Workers Compensation claim, Brett Spinning v. State of Florida and Florida Department of Environmental Protection. The Order issued by the Judge of Compensation Claims denied the claimant s claim for compensability for all conditions related to alleged exposure to toxic substances. Claimant claimed that his employment with the Florida Department of Environmental Protection placed him in situations that allowed him to be exposed to toxic substances that caused him to be inflicted with basilar migraines and essential tremors. Claimant s expert witness testified that, based upon the nature of the claimant s employment and contact with potentially toxic chemicals, there could be no other reason for the claimant s condition. The employer/carrier argued that the claimant never came into contact with any chemical that was known to cause basilar migraines or essential tremors. Furthermore, the employer/carrier argued that the claimant failed to prove that he came into contact with chemicals more than the average person. Lastly, the employer/carrier was proved that the claimant s condition was genetic in nature and not a result of his contact with chemical substances while employed with the employer. Curtis W. Mollohan (Florida Keys) obtained summary judgment in an Americans with Disabilities claim in King v. School Board of Monroe County, Florida, a case filed in the United States District Court for the Southern District of Florida. The plaintiff in that case claimed that his employment was terminated because of a disability, but more specifically a condition in the plaintiff's back. The plaintiff was of the position that the School Board knew of his disability and terminated him because he was unable to perform job functions requiring strain on his back. To the contrary, the School Board contended that the plaintiff was not disabled as set forth in the Americans with Disabilities Act, that the School Board did not know the plaintiff had a disability, assuming for argument's sake that he did have a recognized disability, the plaintiff was terminated for other legitimate, nondiscriminatory reasons, and in any event, the plaintiff was a probationary employee that could be terminated from employment with the School Board for any lawful reason or no reason whatsoever. The court found that: (1) that the plaintiff did not meet the standard required for demonstrating a recognized disability; (2) assuming for the purposes of argument that a disability existed that the School Board knew of the disability; and (3) regardless of the foregoing, the plaintiff had failed to meet the nondiscriminatory reasons proffered by the School Board for his termination head on, as required. Judgment as a matter of law was consequently entered in favor of the School Board. Stephanie Alexander (Pensacola), obtained a Workers Compensation Final Order awarding E/C an off-set of compensation benefits, in Robert A. LaNoue V. Office Max and Gallagher Bassett Services, Inc. Claimant assumed the safety ladder would not pass pallets in the storeroom and climbed to the top shelf to retrieve merchandise. After handing it down to a co-worker he fell/jump and fractured both heel bones. Judge Nolan S. Winn held that by not utilizing the ladder, he knowingly refused to use a safety appliance provided by the employer. Therefore, E/C was awarded 25% reduction in compensation benefits, pursuant to FS440.09(5). Henry J. Roman (Ft. Lauderdale) obtained a Per Curium Affirmed decision from the First District Court of Appeals in the matter of Sanchez v. Gold Coast Towing/Unisource. In the underlying workers compensation case, the Defense successfully argued that the claimant did not suffer an accident arising out of work performed in the course and scope of his employment as a tow truck driver while he was in his truck, and uniformed, parked in front of a market. The claimant alleged he went to the market to attend to his "personal comfort". The trial court found he was at the market to cash a personal check and failed to show that this personal mission was of any benefit to his employer. The First DCA agreed. Henry J. Roman (Ft. Lauderdale) obtained a reversal of the lower court's decision that an accident was in the course and scope of employment in the matter of Restoration Technology/NELCO v. Andres Reyes. The claimant alleged that he was injured as a result of an alteraction with a co-worker. The claimant's testimony at trial contradicted deposition testimony when he testified at the former that the struck his hand with on a hard object. The lower court found that an altercation with a co-worker where: (1) the claimant's injury results from the co-workers unprovoked aggression; (2) the claimant's work brings him or her into close proximity with the aggressive co-worker; and (3) the object causing the injury was an implement of the employment. The First District Court of Appeals disagreed with the lower Court and agreed with the Defense in finding the claimant's injury was self-inflicted and thus not compensable. Henry J. Roman (Ft. Lauderdale) successfully argued for the Defense in opposition to a motion to enforce a prior mediation agreement that the mediation was was not enforceable as the contingencies had not been met at the time of the claimant death in the matter of Gilmore v. Cracker Barrel/Gallagher Bassett Services. The parties entered into a mediation agreement with certain contingencies. Prior to the contingencies being met, the claimant died. The trial judge ruled a settlement agreement between a workers compensation Claimant and an employer is not final and enforceable before the claimant dies due to outstanding contingencies. The Florida Law update is published by Vernis & Bowling for the benefits of clients, friends and fellow professionals on matters of interest. The information contained herein is not to be construed as legal advice or opinion. We provide such advice or opinion only after being engaged to do so with respect to particular facts and circumstances. This publication may be considered "advertising material" under the rules of professional conduct governing attorneys in some states. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written inforamtion about our qualifications and experience.
5 Michael A. Meadows (Florida Keys) obtained Summary Judgment in favor of our client, the Defendant School Board in a Negligence action in Krathen vs. The District School Board of Monroe County, in the Circuit Court of Monroe County, Florida. Plaintiff brought suit claiming that the injuries she sustained while participating in cheerleading practice were the result of the Defendant's negligence. We moved for Summary Judgment asserting that the Plaintiff's claims for negligence were barred based upon the Consent and Release from Liability Certificate executed by the Plaintiff and the Plaintiff's parent/guardian which was required to be executed prior to participating in school athletics such as cheerleading. Under the document, the Plaintiff agreed to,"release and hold harmless, my school, the school against which it competes, the contest officials and the FHSAA (Florida High School Athletic Association) because of any accident or mishap involving my participation". Plaintiff argued in part that the release did not apply because the release did not specifically release Defendant from their own negligence. The Defense argued that under Hardage Enterprises Inc. v. Fidesys Corp., N.V., 570 So. 2d 436 (Fla. 5th DCA 1990) that it is an "...erroneous assumption that a release will not bar claims of negligence merely because it does not specifically contain the word 'negligence'. There are no words of art required in a release if the intent of the parties is apparent from the language use." The Court agreed with the cited authority and entered Summary Judgment on behalf of the Defendant. Additionally, prior to filing for Summary Judgment, a notice letter was sent to the Plaintiff's counsel. Based upon the notice letter, Defendant's Motion for Attorneys Fees and costs is pending. Terry Dixon (Central Florida/DeLand) obtained a defense verdict in the case of Vanderschaaf and Nancy Vanderschaaf, his wife v. Waste Services of Florida Inc., Individually or d/b/a/ Daytona Hauling. In May 2004, plaintiff Kevin Vanderschaaf, 40s, an independent lawn care maintenance contractor, was riding his motorcycle in South Daytona behind a dump truck. The truck stopped and Vanderschaaf stopped behind it. The truck then began to back up and he honked to get the truck s attention, to no avail, and the truck struck him as he tried to lay the bike down. He claimed that the motorcycle was jerked out of his hand. Claiming that his arm was injured in the collision, Vanderschaaf sued the company that owned the truck, Waste Services of Florida, Inc. operating as Daytona Hauling, Inc. for its driver s negligence. Vanderschaaf s lawyers contended that he had been driving in a safe and legal manner when the dump truck negligently backed into him. Len Hackett (Jacksonville) obtained a favorable verdict on behalf of the Nassau County School District in a matter brought by the parents of a disabled child pursuant to the Individuals with Disabilities Education Act (IDEA). The parents challenged the school district's decision to place the child in a varying exceptionalities class. The parents argued that the child should be placed in a general kindergarten class and that the child should be assigned a full-time one-on-one paraprofessional/interpreter. The judge was persuaded by the school district's argument and ruled that the placement of the child was proper and that the student was not entitled to a one-on-one paraprofessional/interpreter. Gery Levy (Miami) This is a case where we represent the condominium association. A former unit owner sued the association for declaratory relief, breach of contract, tortious interference with contract, and breach of fiduciary duty. The Plaintiff alleges that the association breached the governing documents by failing to approve the application of a prospective buyer of his unit. The Complaint states that as a result of the alleged delay, the Plaintiff suffered damages in excess of $32,000.00, as he was forced to sell the unit at the time the real estate market began to soften. The Plaintiff sought to have the Court declare that, under the governing documents, the association was obligated to act in a timely manner. The association's position is that the Plaintiff had the right to proceed with the sale if the association failed to approve the prospective buyer within 20 days of the submission of the application for approval. We moved to dismiss the counts for declaratory relief and breach of fiduciary duty. We argued the Plaintiff had no cause of action for declaratory relief under Chapter 86, Florida Statutes, because the Act was intended to declare the rights of the parties with "present and actual" controversy. In this case, the Plaintiff's right to seek a determination of his rights vis-a-vis the association's was at the time he was unit owner. The Plaintiff did not seek to have the parties' respective rights until her was no longer a unit owner, and thus, no longer a member of the association. The Court agreed that there was no "present, actual" controversy, and, in a written opinion, dismissed the declaratory relief claim with prejudice. The Court also agreed with the association that, under the Condominium Act, Section (1)(a), Florida Statues, it is the officers and directors who owe a fiduciary duty to the association's members, such as the Plaintiff. The Plaintiff claimed the association breached its fiduciary duty by failing to act in a timely manner, thereby causing pecuniary damages to the Plaintiff. Because there were no claims of wrongdoing against any individual Board Member, the Plaintiff had no cause of action for breach of fiduciary duty against the association itself. The Court dismissed the claim with prejudice. The defense admitted liability, but argued that Vanderschaaf was partially negligent. They contended that he should have realized that the truck would not notice him to stop in time and that he should have laid down the bike immediately instead of trying to honk and get the trucks attention. Vanderschaaf testified that he did not have time to get out of the way. Vanderschaaf claimed that he wrenched his right, dominant arm when the truck hit the bike as he was laying it down. He also claimed soft-tissue injuries to his neck and back. His treating neurologist, John Orlani, testified that Vanderschaaf was suffering from reflex sympathetic disorder in his right arm annular tear in his neck. Orlani testified that a thermogram showed that the right arm was cold which showed significant lack of blood flow to the arm. The RSD caused his right arm and hand to become virtually useless and made it painful. He treated with pain and medication, physical therapy and calcium channel blockers. He sought past and future medical expenses for continued treatments. Vanderschaaf testified that he was able to continue working, but only 10 to 12 hours a week. He was also forced to modify his equipment to run with his left hand. He sought damages for reduced past income and reduced future income. Vanderschaaf testified that his right arm was almost entirely useless. While he could use it, it had almost no strength and after prolonged use became very painful. He testified that he couldn t do simple things like type on a keyboard, use zippers, put on ties or button shirts. He also testified that the RSD caused his arm and hand to change colors, to red and purple as well as change temperatures. He showed the jury his arm, which was a reddish purple. He sought damages for past and future pain and suffering. In total Vanderschaaf sought more than $1 million. His wife claimed loss consortium. The defense contended that Vanderschaaf did not have RSD. The defense s expert orthopedist, Lawrence Halperin, testified that after performing an IME, he found Vanderschaaf to not have RSD. The defense also argued that Vanderschaaf could have sought work that did not require manual labor which wuld allow him to use his hand. The jury found that Daytona Hauling was 51% liable and Vanderschaaf was 49% liable. It awarded $1551,205, which was reduced to $77,116.
6 ALABAMA LAW UPDATE Summer 2007 A Newsletter on Developments in the Law for Clients and Friends of Vernis & Bowling HEARING LOSS CLAIMS UNDER THE LONG SHORE AND HARBOR WORKERS COMPENSATION ACT James T. Patterson Mobile, AL Long Shore and Harbor Workers Compensation The federal Long Shore and Harbor Workers Compensation Act (LSHWCA), Code of Federal Regulation, Title 33, Chapter 18, 901 et. seq., controls claims for benefits related to maritime employment. LSHWCA claims are heard by federal Administrative Law Judges. Per the Administrative Law Judge s bench book, the statute of limitations on a hearing loss claim begins to run only after the employee becomes aware of the full character, extent, and impact of the claimed injury. Paducah Marine Ways v. Thompson, 82 F.3d 130 (6th Cir. 1996). Accordingly, self serving representations in pleadings and/or testimony as to when the claimant first noticed hearing problems can preserve and prolong the statute of limitations for hearing loss claims. The statute of limitations issue must be addressed in the first responsive pleading using form LS-207, which functions as the answer to the employee s claim. Discovery in LSHWCA hearing loss cases operates under the framework of the Federal Rules of Civil Procedure. Defense counsel has the right and the need to look backward into a hearing loss claimant s medical history to determine whether he or she had any prior notice of hearing loss before the date alleged on the LS-203 form, which functions as the employee s complaint for benefits. Section 908(13) of the Act regarding loss of hearing states that an audiogram is presumptive evidence of the amount of hearing loss sustained. Accordingly, defense counsel should work to determine whether the claimant has ever had an audiogram prior to the date of injury referenced in the LS-203. Interestingly, if the claimant ever served in the military, audiograms are normally performed on both entrance and exit physicals. Generally, for any claim to be covered by the LSHWCA, a claimant must establish that his or her injury occurred in an area covered by Section 3(a) of the Act, and that his or her work constitutes maritime employment under Section 2(3) of the Act. 33 U.S.C. 902(3), 903(a); Director, OWCP v. Perini North River Associates, 459 U.S. 297, 15 BRBS 62(CRT) (1983); P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 11 BRBS 320 (1979); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150 (1977); Stone v. Ingalls Shipbuilding, Inc., 30 BRBS 209 (1996); Kennedy v. American Bridge Co., 30 BRBS 1 (1996). In order to demonstrate that coverage exists, a claimant must satisfy the situs and the status requirements of the Act. Id.; see also Crapanzano v. Rice Mohawk, U.S. Constr. Co., Ltd., 30 BRBS 81 (1996). A claimant satisfies the situs and status requirement as a maritime employee if he or she is an employee engaged in work which is integral to the loading, unloading, constructing, or repairing of vessels. See Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 23 BRBS 96(CRT) (1989). Other types of maritime employment should be examined carefully to see whether they afford defenses under the Act. A claimant need only spend at least some of [his or her] time in indisputably maritime activities. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 6 BRBS 150, 165 (1977). Although an employee is covered if some portion of her activities constitutes covered employment, those activities must be more than episodic, momentary, or incidental to non-maritime work. Stone, 30 BRBS at 209; Coleman v. Atlantic Container Service, Inc., 22 BRBS 309 (1989), aff'd, 904 F.2d 611, 23 BRBS 101(CRT) (11th Cir. 1990). A key factor in determining status is the nature of the activity to which an employee may be assigned. Ford, 444 U.S. at 82, 11 BRBS at 328. Moreover, under 920 of the LSHWCA, in any claim for benefits there are four presumptions in favor of the claimant. They are: (1) that the claim comes under the provisions of the Act; (2) that sufficient notice was given; (3) that the injury was not occasioned solely by the intoxication of the injured party; and (4) that the injury was not occasioned by willful intention of the injured employee. Per the LSHWCA, the employer is liable to a successful claimant s counsel for an attorney s fee for all work performed. Expenses are also authorized. The award of interest on benefits awarded is not statutorily mandated, but has been repeatedly upheld as consistent with the Congressional purpose of fully compensating claimants for their injuries. See Foundation Constructors, Inc. v. Director, OWCP, 950 F.2d 621, 25 BRBS 71 (CRT)(9th Cir. 1991); Quave v. Progress Marine, 912 F.2d 798, 24 BRBS 43 (CRT), on reh'g, 918 F.2d 33, 24 BRBS 55 (CRT) (5th Cir. 1990), cert. denied, 500 U.S. 916 (1991); Strachan Shipping Co. v. Wedemeyer, 452 F.2d 1225 (5th Cir. 1971), cert. denied, 406 U.S. 958 (1972). Interest in hearing loss cases is generally awarded starting fourteen days after the employer is first notified of the injury or has knowledge of the injury. See Wilkerson v. Ingalls Shipbuilding, Inc., F.3d, No (5th Cir. Oct. 23, 1997); Renfroe v. Ingalls Shipbuilding, Inc., 30 BRBS 101 (1996)(en banc).
7 Due to the presumptions afforded by the act, the character of a claimant s employment will be considered maritime by merely pleading so--unless rebutted by the employer. LSHWCA hearing loss claims are common among those who spent a lifetime loading and unloading ships or working around the water, especially those older workers who spent the majority of their working life without the hearing protection now required by the U. S. Occupational Safety and Health Administration (OSHA). Because of the lucrative nature of these claims as related to the actual amount of work involved in prosecuting them, there are many claimant s attorneys who advertise for and specialize in hearing loss claims involving older and retired workers. Per 908(13)(B) of the LSHWCA, compensation for loss of hearing in both ears is calculated at 200 weeks of benefits. Benefits awarded to successful claimants for hearing loss will also include future medical expenses. If the claimant has passed retirement age, a Medicare Set Aside may be required to close out all liability in conjunction with any settlement. See 42 U.S.C. 1395y(b)(2)(A) (1980). Should you have any questions regarding hearing loss cases brought under the Long Shore Harbor Workers Compensation Act, please contact Jim Patterson at (251) , or via at ANNOUNCEMENT: We are pleased to announce that Vernis & Bowling of Southern Alabama, LLC has moved to 204 South Royal Street, Mobile, Alabama. James T. Patterson (Mobile) obtained summary judgment in a workers compensation claim in Cunningham v. Sea Breeze Nursing Home, et. al., in the Circuit Court of Mobile County, Alabama. There, the claimant filed a verified complaint alleging that she was permanently and totally disabled as a result of two different injuries to different parts of her body sustained on different dates. The claimant s attorney later created a favorable window of opportunity when he filed a motion to compel payment of temporary total disability and medical benefits, averring that the claimant had been ready, willing, and able to return to light duty work since the month prior to when he filed her verified complaint. The inconsistency in alleging on the one hand that she was permanently and totally disabled, and on the other hand claiming that she had been ready, willing, and able to return to work since before her complaint was filed was only one factor in the Court s decision to grant summary judgment. Other factors included arguable job abandonment, and the fact that the claimant was released from her first injury with a zero percent impairment rating from her doctor. Because a different insurance policy from a subsequent carrier was involved in the second injury, Alabama s last injurious exposure rule was used to show the Court that the burden for all indemnity and future medical expenses was owed by the second carrier and not the first. Jon Green Mobile, Alabama Law-Alabama.com Jon Green was born in Tyler, Texas and raised in El Paso, Texas. He graduated from Spring Hill College in Mobile, Alabama in 1974 with a Bachelor of Science in Political Science. After college, he returned to Texas to study law at the University of Texas at Austin, where he received his Juris Doctorate in Jon began his legal career as a Hearings Examiner for the State of Texas. In 1982, Jon was licensed to practice in Alabama and VERDICTS & DISPOSITIONS moved to Mobile to work with an insurance defense firm. He later became heavily involved in asbestos defense litigation, and was admitted to practice in Mississippi in Jon is admitted to practice in Alabama, Mississippi, and Texas, as well as Federal Courts in the Eastern and Western Districts of Texas, the Northern and Southern Districts of Mississippi, the Southern District of Alabama, the 5th and 11th Circuit Courts of Appeal, and the United States Supreme Court. Jon has a long history of experience in defense litigation, ranging from mass tort litigation to State Worker s Compensation, Longshore and Harbor Worker litigation, construction defect litigation, arson, Errors and Omissions (E&O) coverage and general liability. In addition, Jon has developed a James T. Patterson (Mobile) obtained a favorable recovery for clients St. Paul/Travelers and Caddell Construction Company, Inc. of Montgomery Alabama in a subrogation case alleging breach of contract, contractual and common law indemnification, negligent failure to procure insurance, and veil piercing claims against a subcontractor and its insurance agent. The underlying claims involved the construction of a federal courthouse in Tennessee in year There, an employee of the subcontractor was injured at work and was eventually awarded a permanent total disability. When it became clear the subcontractor did not have the correct statutory workers compensation insurance--notwithstanding the fact that the subcontractor s insurance agent produced certificates of insurance that clearly referenced the Tennessee project-- Caddell became liable for the disability award under Tennessee law. The instant subrogation lawsuit was brought in the United States District Court for the Northern District of Florida. Caddell is among the 200 largest U. S. contractors, and is the 26th largest U.S. General Contractor working abroad and the nation s 68th largest design/build firm. The majority of Caddell s volume consists of work for federal clients including the U. S. State Department, the General Services Administration (GSA), the Federal Bureau of Prisons, the U. S. Department of Energy, and all branches of the U. S. military. We are pleased to announce the addition of the following attorney to the Vernis & Bowling team: Probate practice involving estate administration, guardianships, conservatorships, and commitments. He has over twenty published Appellate opinions including cases of first impression such as Amerada Hess v. Owens-Corning, 627 So. 2d 367 (Ala. 1993), Sheffield v. Owens- Corning, 595 So.2d 443 (Ala. 1992), and Gilmore v. M&B Realty Co., 895 So. 2d 200 (Ala. 2004). Jon was also Appellee s counsel in the first case to uphold the constitutionality of the workers compensation Act amendment in Alabama granting co-employee immunity for negligence actions, Reed v. Brunson, 527 So.2d 102 (Ala. 1988). PUBLISHED APPELLATE DECISIONS: Amerada Hess v. Owens-Corning, 627 So. 2d 367 (Ala. 1993), Sheffield v. Owens-Corning, 595 So.2d 443 (Ala. 1992); and Gilmore v. M&B Realty Co., 895 So. 2d 200 (Ala. 2004). The Alabama Law update is published by Vernis & Bowling for the benefits of clients, friends and fellow professionals on matters of interest. The information contained herein is not to be construed as legal advice or opinion. We provide such advice or opinion only after being engaged to do so with respect to particular facts and circumstances. This publication may be considered "advertising material" under the rules of professional conduct governing attorneys in some states. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written inforamtion about our qualifications and experience.
8 GEORGIA LAW UPDATE Summer 2007 A Newsletter on Developments in the Law for Clients and Friends of Vernis & Bowling OTHER AVAILABLE WORK IN GEORGIA WORKERS COMPENSATION: CHANGE IN CONDITION FOR THE BETTER WITHOUT A JOB OFFER James G. Jackson Atlanta Workers' Compensation Department In Georgia, once a claim for workers compensation disability benefits has been accepted, or an all issues determination of compensability and disability has been made, much of the subsequent litigation may involve attempts by the employer/insurer to establish a change in condition for the better, so as to decrease or suspend in their entirety the disability benefits owed. This is most difficult in those cases where the claimant is given continuing work restrictions related to the job injury, and the employer cannot offer light duty work. It is the intent to this article to discuss a way in which employers, insurers and servicing agents can lawfully seek a termination of disability benefits in these costly cases. Generally, the case law in Georgia states the employer can establish a change in condition for the better, where evidence shows: (1) the employee has undergone a physical change for the better; (2) as a result of the improvement, the employee is capable of working; and (3) work is available to decrease or terminate the loss of income caused by the job injury. See ABB Risk Management Service v. Lord, 254 Ga. App. 88, 561 S.E.2d 225(2002). However, the cases primarily emphasize the third requirement - that evidence show the availability of suitable work - and in at least one case, the Court of Appeals did not mention a requirement for the employer to prove a physical change for the better, but instead merely stated the employer must show that the employee is able to return to work and that suitable work is available. Freeman v. Continental Baking Company, 212 Ga. App. 855, 443 S.E.2d 520 (1994). One of the more frequent, frustrating and expensive workers compensation fact situations encountered virtually everyday in the handling of compensable, disabling injuries is that situation in which a claimant can work, with restrictions, but the employer cannot provide light duty employment, for any one of a variety of reasons. However, in many of these cases there are jobs available in the local economic community, particularly in urban areas, which the claimant could perform within restrictions and - where the claimant refuses to avail himself/herself of relevant employment opportunities within the community - there is a process by which an employer can effect a change in condition for the better, on the basis that the proximate cause of the claimant s unemployment is the claimant s unwillingness to work, rather than the unavailability of suitable employment. Under a specific line of case decisions, the employer can establish a change in condition by proving that available, suitable employment exists in the general, local economy; the proof can be offered through the testimony of a vocational expert, usually a qualified rehabilitation supplier. In Mountainside Medical v. Tanner, 225 Ga. App. 722, 484 S.E.2d 706 (1997), the claimant Tanner had qualified for temporary total disability benefits. The claimant made no actual or attempted return to work. Nonetheless, the Court of Appeals allowed the employer to utilize O.C.G.A and to decrease benefits to temporary partial levels by theorizing as to the amounts Tanner could earn if he did take advantage of available, suitable work. Significantly, the Court of Appeals reversed the State Board s decision preserving TTD benefits, while announcing that the legislature did not intend claimants to not work and thereby avoid a reduced benefit. As the Court of Appeals stated: according to the statutory scheme, the ability to earn not the propensity to earn controls the issue... The implications of this distinction have been highlighted and further defined in subsequent decisions. Most significantly, in Jones County Board of Education v. Patterson, 255 Ga. App. 166, 564 S.E.2d 777 (2002), the Court specifically allowed expert evidence that a claimant qualified for suitable jobs currently available in the local economy to justify a finding of change in
9 condition for the better. Also see ABB Risk Management Services v. Lord, 254 Ga. App. 88, 561 S.E.2d 225 (2002) and Shaw Industries, Inc. v. Shaw, 262 Ga. App. 586, 586 S.E.2d 80 (2003). These cases show that, even where the employer can offer no light duty work and the claimant is drawing disability benefits while given valid work restrictions - but the VERDICTS & DISPOSITIONS James G. Jackson (Atlanta) obtained a decision of the Georgia Court of Appeals reversing the State Board of Workers Compensation s award of catastrophic designation to the claim of Reid v. Georgia Building Authority, et al. Ms. Reid had previously sustained a work-related injury while an employee of the Georgia Building Authority. She asserted the injury was catastrophic pursuant to O.C.G.A (g) (6). At trial, on behalf of the employer, Mr. Jackson contended that Reid had provided no competent evidence showing a lack of available work in substantial numbers within the national economy, an essential element of the statutory requirements. The Administrative Law Judge and the Appellate Division of the State Board rejected the defense and entered Orders designating the claim as catastrophic, and awarding the significantly increased benefits attendant with such designation. Appeals were taken and, ultimately, the Court of Appeals determined "the State Board concluded that Reid was essentially unemployable based upon her age, skill level, training, education, and work limitations. However, the record contains no competent evidence regarding Reid s training, skill level, or education. There is no evidence of a lack of available work in the national economy for which Reid is otherwise qualified. In other words, the Board determined that the injury was catastrophic based solely on its own experience. Thus, the issue is whether the Board may reach such a conclusion in the absence of competent evidence that the employee is unable to perform any work available in substantial numbers within the economy. We hold that it cannot." Accordingly, the Court of Appeals denied the claimant s request for catastrophic designation. Ian Neil Matthes (Atlanta) obtained a defense judgment in an auto liability case, Belinda Hunt v. Tangenek McDonald, et. al., in Lowndes County, Georgia. In this matter, the plaintiff claimed that the defendant disregarded a John Willis Hurst, III is a native of Atlanta. John graduated from Auburn claimant refuses to return to suitable work available in the local economy - the employer can prove a change in condition for the better, by establishing the existence of available, suitable work through the testimony of a vocational expert. Indeed, if suitable work is available within the local economy, the proximate cause of the claimants unemployment is the claimant s unwillingness to work, not the job University with a Political Science degree (Cum Laude) in He earned his J.D. from Emory University Law School in 2005 and was admitted to the Georgia Bar that same year. While in law school, he clerked for two insurance defense firms in Atlanta. Prior to joining of Atlanta, John practiced law in Savannah, where he represented insurance carriers and their insureds. John practices primarily in automobile liability, uninsured/underinsured injury-related restrictions. Aggressive litigation of such change in condition defenses can cut the costs of these cases. Should you have any questions regarding this article, please contact James Jackson at (404) or via at ANNOUNCEMENT: Vernis & Bowling will be presenting its Atlanta Legal Educational Seminar on Friday, September 21, 2007 at the Marriott Atlanta Gwinnett Place. For further information please visit our website at or Online registration is also available. traffic control device, striking her vehicle and causing bodily injuries. Through investigation of incident, use of police dashboard camera tapes, trial testimony and cross-examination of the plaintiff, we were able to show that the plaintiff was unable to meet her burden of proof regarding liability. Damages, were liability to be found against the defendant, were also addressed and portions of the plaintiff's medical record narratives were removed from consideration. We were also able to get the defendant's mother dismissed from the suit, in which she has been named under the Family Purpose Doctrine. Ultimately, a defense judgment was entered in favor of the defendant. Jeff Raasch (Atlanta) obtained a defense judgment in Carmen Johnson v. Hardee s, in Muscogee County, Georgia. In this matter, the plaintiff claimed that she had broken her tooth on a foreign object in a Hardee s sandwich. A defense judgment was entered in favor of the defendant, since we were able to show the court that the plaintiff was unable to meet her burden of proof. Jeff Raasch (Atlanta) obtained a defense judgment in Lynda Kapsch and Michael Craig v. Today Management & Norgate Manor Condo Assoc., DeKalb County, Georgia. In this matter, the plaintiffs claimed water leak related property damage in her condominium unit, alleging responsibility for the condominium association. The court ruled in favor of the condominium association on the grounds that the association s by-laws provided that the condominium association could assist individual unit owners with repairs, but it was not obligated to do so. Therefore, based upon the same condominium by-laws that were signed by the plaintiffs, the court ruled that no duty was owed to the plaintiffs, and a defense judgment was entered in favor of the defendants. We are pleased to announce the addition of the following attorney to the Vernis & Bowling team: John W. Hurst, III Atlanta, Georgia motorist liability, general liability, premises liability, products liability, insurance coverage and subrogation cases. Currently, John is admitted to the Court of Appeals of Georgia, the U.S. District Court for the Southern District of Georgia, and is licensed to practice in all Georgia trial courts. The Georgia Law update is published by Vernis & Bowling for the benefits of clients, friends and fellow professionals on matters of interest. The information contained herein is not to be construed as legal advice or opinion. We provide such advice or opinion only after being engaged to do so with respect to particular facts and circumstances. This publication may be considered "advertising material" under the rules of professional conduct governing attorneys in some states. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written inforamtion about our qualifications and experience.
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