Did you know?
Happenings around our firm:
Maria Elena (paralegal) celebrated the arrival of her second grandchild, Sabrina. Her first, Michael will be turning 3 in November.
Ross Gampel (partner) celebrated two graduations this past spring. His son, Bradley Gampel, received a Bachelor's degree from M.I.T. and his son, Brian Gampel, received his Juris Doctor from the University of Miami School of Law.
Herman M. Klemick (partner) also celebrated a graduation. His younger daughter, Samantha Klemick, graduated from the Fashion Institute of Design and Merchandising in Los Angeles in the spring. His oldest daughter, Heather Klemick, is an economist with the E.P.A. in Washington, D.C.
At Klemick and Gampel we have seen several clients who have sufferred serious infections as a result of the negligence of nail salons.If you suffer an injury or infection which disfigures you or requires in patient hospitalization call Klemick and Gampel at 305-856-4577.
The dangers of the local salon were set out in an online article on Health.com.
Read More About Infections from the negligence of nail salons....
Cooking Oil Fire: Our firm is presently representing a client was severely burned in cooking oil fire. The client was heating vegetable oil on the stove in order to fry some food. The oil caught fire and the fire extinguisher did not work. The client picked up the pan to throw the burning oil outside and suffered severe third degree burns. We are suing the condo association.
Changing Tire: One of our clients suffered a severe brain injury and fractured arm when the locking ring on a split rim commercial tire exploded while he was changing the tire. We are suing the forklift manufacturer and the marina who owned the boat lift.
Hatch Door: One of our clients was working in a side pump/lift station when the lid fell on him, striking his head. He is now suffering severe memory loss and brain damage. We are suing the manufacturer of the hatch door.
Remember if you, your family or a friend are ever severely injured in any way you may have a case. Please call us immediately and we will discuss the case with you free of charge.
For years our firm has represented hundreds of children injured in playgrounds, on playground equipment in public parks and in our schools. The playground equipment is like a magnet to children. Unfortunately, dangers are lurking. The most widely seen danger is that the surface under climbing and sliding equipment are not adequately padded so as to prevent serious head injuries and broken bones.
Recently a young man was awarded $25 million dollars for brain damage he received in the indoor playground of a Burger King. The support poles were unguarded and the surface was also too hard.
Remember, if you, your child, or a friend ar einjured in a local park, at school or even on at home play equipment you may have a case. We will handle the case for you on a contingency basis. If there is no recovery you pay nothing to us.
Every year many manufactureres of products and medicines recall their products because of damgerous defects. There recalls usually come after many people have already suffered serious and sometimes catastrophic losses as a result of the defects the manufacturer already knew about or should have known about. Two of the most recent are the Yamaha Rhino (all terrain vehicle) and the Suzuki GSX R1000 motorcycle.
In the Yamaha Rhino case the U.S. governemnt statistics show that the Rhino has been responsible for 30 deaths and hundreds of serious injuries.
In the Suzuki case Suzuki initiated a recall to retrofit the motorcycle's frame with a brace. Without the brace the frames were susceptible to cracking and breaking behind and below the steering neck causing even the most experienced rider to lose control, suffer serious injuries or even die.
If you, your family or a friend has been seriously injured as a result of the Suzuki GSX R1000, the Yamaha Rhino or any othe product call Klemick and Gampel, P.A. at 305-856-4577.
Several years ago Klemick and Gampel successfully represented the estate of a person killed when the brakes on a chartered bus failed because the charter company failed to maintain the bus and the brakes.
In February 2009 Trial Journal, Rob Ammons wrote an article chronicalling how dangerous America's buses are.
If you, your family or a friend are seriously injuried in a bus accident call us at 305-856-4577 for a free consultation.
Read More About Dangerous buses...
Courts Find That Some Employers Are Risking the Safety of Their Employees
It appears that the Courts in Florida have finally recognized that some employers are risking the safety and even the lives of their workers by failing to meet the OSHA standards allowing workers to remove safety guards and failing to properly train workers in the safe way to use dangerous tools and equipment. It is about time! The employers in Florida have been allowed to jeopardize the lives and limbs of their workers without accountability.
In the latest such case the Court found that a worker could sue his employer when his arm was crushed in a punch press machine when the guard was removed and he was instructed to dislodge a piece of metal in the press while it was still on.
It appears that the Courts in Florida have finally recognized that some employers are risking the safety and even the lives of their workers by failing to meet the OSHA standards allowing workers to remove safety guards and failing to properly train workers in the safe way to use dangerous tools and equipment. It is about time! The employers in Florida have been allowed to jeopardize the lives and limbs of their workers without accountability.
In the latest such case the Court found that a worker could sue his employer when his arm was crushed in a punch press machine when the guard was removed and he was instructed to dislodge a piece of metal in the press while it was still on.
Casas v. Siemens Energy and Automation, Inc. 34 Fla.L.Weekly D151 (3 ist.,2008)
Whenever you are hurt on the job and you think that it was your employer’s fault you should contact an attorney to see if you can sue the employer. Generally, you cannot but in a rare exception to this general rule. The estate of a worker who was killed when a trench collapsed on him was allowed to sue the employer. The employer was cited for violating the OSHA regulations requiring trench protection. The Court said that it was a jury question as to whether the employer knew or should have known that the employee was “substantially certain” to be injured or killed while working a five foot deep trench without OSHA trench protections. Cabrera v. T.J. Pavement Corp., 33 FLW D268D (3 Dist., 2008).
Caridad Cabrera, as personal representative of the Estate of Victor Acosta, for the use and benefit of the Estate of Victor Acosta and Victor Abrahan Acosta Ventura,
Appellant,
vs.
T.J. Pavement Corp.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Maria Espinosa Dennis, Judge.
Beckham & Beckham, and Pamela Beckham, for appellant.
Angones McClure & Garcia; Hersch & Talisman and Patrice A. Talisman, for appellee.
Before GERSTEN, C.J., and WELLS and LAGOA, JJ.
WELLS, J.
Caridad Cabrera, as personal representative of the Estate of Victor Acosta, appeals from a final summary judgment determining that T.J. Pavement Corp., Acosta’s employer, is entitled to workers’ compensation immunity. Because Cabrera demonstrated the existence of genuine issues of material fact that would except T.J. Pavement’s conduct from workers’ compensation immunity, we reverse.
Acosta was killed when the eight foot deep trench in which he was working collapsed while he was installing drainage pipe for T.J. Pavement at the Green Briar Acres Drainage Improvement Project. At the time of this incident, T.J. Pavement had already installed—without incident—6,400 of the 8,000 feet of drainage pipe that it had contracted to install at the Green Briar site. Although trench protection boxes were available for use by T.J. Pavement employees working on this project, none had been used and none was in use in the trench in which Acosta died. The trench in which Acosta died had been dug about an hour before it collapsed. It had been dug with 90 degree sides in unstable layered soil, rock, and fill, and had about a foot to a foot and a half of water accumulated at its bottom at the time of its collapse.
In June of 2004, Acosta’s estate filed a wrongful death action against T.J. Pavement primarily claiming that T.J. Pavement’s conduct “exhibited a deliberate intent to deliver or engage in conduct which was virtually and/or substantially certain to result in injury or death.” This claim was supported, in significant part, and testimony to the effect that T.J. Pavement’s conduct was criminal.by citations issued by the Occupational and Safety and Health Administration (OSHA) finding that T.J. Pavement had violated regulations governing trenching1 2 T.J. Pavement moved for summary judgment claiming workers’ compensation immunity primarily because approximately 80% of this job had been completed without incident before Acosta’s death; no evidence existed that T.J. Pavement had previously experienced a trench collapse; and, Miami-Dade County inspectors, who were at the site daily, had never requested that trench boxes be used. This motion was denied because the trial court found that disputed issues of material fact existed.
A little over five months later, T.J. Pavement, relying on Pendergrass v. R.D. Michaels, Inc., 936 So. 2d 684 (Fla. 4th DCA 2006), filed a motion for partial summary judgment on the ground that the criminal acts exception to the workers’ OSHA’s investigation of this incident resulted in issuance of a citation for four safety violations, which it deemed “serious”: (1) failure to instruct employees on applicable safety regulations and how to recognize and avoid unsafe conditions in violation of 29 C.F.R. § 1926.2 1(b)(2); (2) ordering employees to work in an excavation in which water was accumulating without taking adequate precautions in violation of 29 C.F.R. § 1926.65 1(h)(i); (3) failure to conduct daily excavation site inspections by properly trained personnel in violation of 29 C.F.R. § 1926.65 1(k)(1); and, (4) failure to provide adequate cave-in protection in violation of 29 C.F.R. § 1926.652(a)(1).
2 This testimony came from the affidavit of a former federal prosecutor who averred that sufficient probable cause existed to support criminal charges for manslaughter, culpable negligence, and willful OSHA violations. compensation laws did not apply to this corporate defendant. See § 440.11(1) Fla. Stat. (2002) (excepting from immunity two groups of individuals immunized by section 440.11(1) along with employers: (1) fellow employees who act “with willful or wanton disregard or unprovoked physical aggression or with gross negligence;” and, (2) sole proprietors, partners, officers, directors, and managing agents whose acts constitute a violation of law carrying a jail term of sixty days or longer).
Some five days later, T.J. Pavement filed an “Amended Motion for Reconsideration and/or Renewed Motion for Summary Judgment,” reiterating its argument regarding the criminal acts exception and adding an argument that Pendergrass was “directly on point and controlling” and held the OSHA violations are insufficient “as a matter of law” to establish that T.J. Pavement had “exhibited a deliberate intent to injure or engage[] in conduct which is substantially certain to result in injury or death.” This time the motion was granted and judgment in T.J. Pavement’s favor was entered.
While we agree with T.J. Pavement that the criminal acts exception has no application to this case, we do not agree that the Pendergrass court’s conclusion that the OSHA violations at issue in that case would not support application of the intentional tort exception is dispositive here.
Florida’s workers’ compensation act sets forth a comprehensive scheme that provides benefits to workers injured during employment. See Bakerman v. Bombay
4
3 We cite to and apply this version of the workers’ compensation law because it was in effect at the time of Acosta’s death. See Bakerman, 961 So. 2d at 262 n.3.
Co., 961 So. 2d 259, 261-62 (Fla. 2007). This system, which is based on mutual renunciation of common law rights and defenses by employers and employees, ensures that injured employees who fall within its scope receive swift compensation and medical benefits from the employer irrespective of fault or cause of injury. Id. at 261. In exchange, employers who comply with the workers’ compensation act receive immunity from suit except in limited circumstances. Id. at 262.
One such exception from workers’ compensation immunity, as T.J. Pavement correctly argues, is the criminal acts exception recognized in section 440.11(1) of the Florida Statutes. § 440.11(1), Fla. Stat. (2002).3 This exception from immunity does not, as Pendergrass confirms, apply to corporate defendants such as T.J. Pavement:
Based upon the clear and unambiguous language of the statute, the criminal acts exception does not apply to . . . corporate defendants.
Pendergrass, 936 So. 2d at 689.
Another exception from workers’ compensation immunity is the intentional tort exception which comes into play when the employer exhibits either “a deliberate intent to injure or engage[s] in conduct which is substantially certain to result in injury.” Bakerman, 961 So. 2d at 262. There is no evidence that T.J. Pavement intended to injure or kill Acosta. Indeed, the individual with whom Acosta was
5
4 We employ the “substantial certainty” standard because Acosta was killed in July 2003 before section 440.11 of the Florida Statutes was amended to replace the substantial certainty standard with the virtually certain standard, and because this amendment does not apply retroactively. See § 440.11(1)(b), Fla. Stat. (2002) (providing for a virtual certainty test to be applied to the intentional tort exception to workers’ compensation immunity which must be established by clear and convincing evidence that “the employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee”); Bakerman, 961 So. 2d at 262 n.3 (confirming that the new standard does not apply retroactively).
working, and who dug the trench, was Acosta’s life-long friend. Thus the issue here, as it was in Pendergrass, is whether T.J. Pavement’s conduct was substantially certain to result in his injury or death.4 This determination requires application of an objective analysis to decide whether the employer either knew or should have known that its conduct was substantially certain to result in injury or death. Bakerman, 961 So. 2d at 262 (quoting Turner v. PCR, Inc., 754 So. 2d 683, 691 (Fla. 2000)); Sierra v. Associated Marine Insts., Inc., 850 So. 2d 582, 587 (Fla. 2d DCA 2003) (quoting Turner, 754 So. 2d at 688-89).
In Pendergrass, the court applied this objective analysis test and determined that a contractor and its mason subcontractor were not excepted from workers’ compensation immunity based on their conduct in failing to brace a newly-constructed concrete block wall which collapsed killing an unskilled worker who was in a restricted access area preparing the site for installation of new bracing. This determination turned not on whether the failure to follow OSHA guidelines
6
5 Following Pendergrass’ death, OSHA cited the contractor for failing to establish a limited access zone around the masonry wall and for failure to adequately brace masonry walls over eight feet high to prevent collapse. OSHA also issued violations to the mason subcontractor for failure to have a safety program for its employees, failure to instruct each employee in recognizing and avoiding unsafe conditions, failing to establish a limited access zone around the masonry wall, and failing to adequately brace masonry walls over eight feet high.
constitutes an intentional tort5—which, as the court confirmed, it does not—but on the conclusion that where the employee had failed to demonstrate either prior warning or knowledge of similar incidents or concealment of a known danger, and the employee’s sole expert had characterized the employers’ conduct as merely “negligent,” on the facts presented, the substantial certainty test had not been met. See Pendergrass, 936 So. 2d at 691, 693.
Here, as in Pendergrass, our task is to determine whether, if true, the facts as alleged were insufficient to establish that the employer’s conduct was substantially certain to result in injury to an employee. One of those facts was that OSHA issued citations faulting T.J. Pavement for failing to follow OSHA guidelines. Additionally, Cabrera alleged that T.J. Pavement knew or should have known that it was fundamentally unsafe to permit Acosta to work in a trench greater than five feet in depth without trench protection, that Acosta and his co-workers were not properly trained, that soil conditions existed at the site which made collapse of the
7
6 Considering existing conditions, one of Cabrera’s experts estimated the likelihood of a collapse at 90% to 95%, the other estimated the likelihood at 85% to 90%.
trench highly likely,6 and that several experts concluded that T.J. Pavement’s actions were substantially certain to result in injury to an employee. If proved, the facts alleged could convince a jury that when Acosta was sent to work in the trench his employer should have known there was a substantial certainty that doing so would result in his injury or death. Therefore, the circuit court should not have dismissed the action based on workers' compensation immunity. See Sierra, 850 So. 2d at 589.
While digging a hole in the ground appears to be simple work mandating no particular thought, training or skill, the danger inherent in trench work is so great that in 1990 the Florida legislature adopted the Trench Safety Act to govern this work. See §§ 553.60-64, Fla. Stat. (2007). This Act expressly requires all contract bids for excavating trenches exceeding five feet in depth to refer to the trench safety standards that will be in effect during the work; to state in writing that the contractor performing the work “will comply with the applicable trench safety standards;” and to identify “the cost of compliance with the applicable trench safety standards.” § 553.63(1)(c), Fla. Stat. (2007).
The Act also adopts the excavation safety standards promulgated by OSHA as this state’s excavation standards and requires contractors performing trench
8
7 Appellees assert that reversal based in part on violation of the Florida Trench Act amounts to a holding that violation of the Act is per se, an intentional tort. We disagree. We do not see our resolution of the instant case as establishing or observing any such per se rule. Rather, we are concluding that the evidence presented herein, including the undisputed violations of the Act, was sufficient to present material issues of fact.
8 Unlike the general training and warnings to be alert for falling objects while working at a construction site, which were found to be adequate in Pendergrass, the dangers inherent in working in a trench less than five feet deep as opposed to working in one six, seven or eight feet deep, or in a trench dug in soft soils, or with vertical walls or water intrusion are not so readily apparent.
excavations in excess of five feet deep to comply with applicable OSHA excavation safety standards. See § 553.62, Fla. Stat. (2007); § 553.63(2)(a), Fla. Stat. (2007); 8 Fla. Prac., Constr. § 3:8 (2008-2009 ed.).
Here, Cabrera submitted the affidavit of a licensed general contractor who identified both the safety precautions that Florida law and OSHA required for the work being performed by T.J. Pavement and which of those safety precautions T.J. Pavement failed to perform.7 Specifically, the contractor found that T.J. Pavement did not train its employees to recognize and avoid the hazards associated with trenching or the standards applicable to this job as required by Florida law and OSHA standards and that T.J. Pavement had no written safety and health program or safety training program.8 The contractor additionally testified that T.J. Pavement allowed water to remain in the trench which affected soil cohesion, and that T.J. Pavement’s principal was not present on the job site when the trench was dug to assure that proper safety precautions were implemented as conditions changed.
9
There was also expert testimony that when deciding which safety precautions to employ during a trench excavation, determining soil type is critical. While there was some dispute as to exactly how to classify the soil at the excavation site where Acosta was killed, thereby determining the employer’s concomitant safeguarding responsibilities, the evidence was that neither T.J. Pavement’s principal nor its foreman were even aware of OSHA soil type classifications and the precautionary measures mandated by each.
There also was testimony that the vertical walls of the trench in which Acosta was killed were at a “high-risk angle” for the type of soil at the excavation site. The testimony was that the soil at the excavation site was composed of layers of different materials with fissures in it and that these layers and fissures were observable before the trench collapsed and that T.J. Pavement should have tested the soil on-site and either sloped the trench or used trench protection because of that soil composition. And although T.J. Pavement’s principal conceded that a trench box should be used for protection in excavations that are not rock, he admitted that T.J. Pavement never used any cave-in protection on this job.
Also, testimony established that the trench crossed an intersection with “considerable vehicular traffic” which caused mechanical vibrations that also played a part in determining whether precautionary measures should have been
10
taken. Finally, contrary to the expert in Pendergrass who observed negligence, Cabrera’s two experts concluded that conditions were such in this case that injury or death was a substantial certainty.
Applying the objective standard, we find that genuine issues of material fact exist, and although Cabrera carries the ultimate burden of demonstrating to a jury that T.J. Pavement engaged in conduct that was substantially certain to result in injury, on this record, summary judgment should not have been granted.
Accordingly, the order under review is reversed.
Our firm has recently handled two legal malpractice cases. Both of the cases involved an attorney letting the statute of limitations for an accident or injury case run. In Florida the statutes are four (4) years for normal accident, two (2) years for medical malpractice and two (2) years for death claims.
Lawyers can get in trouble when the accident happens in another state or country or the insurance company is taken over by the Florida Insurance Guarantee Association (FIGA). FIGA reduces the statute for Florida cases to one (1) year from a specific date. The lawyer may not realize that the statutes of limitations of the State where the accident took place is the one that applies. For example, the statute of limitations in California is two years for an injury/accident case. If a suit is not filed within these shorter time limits an attorney can be made to pay for a client’s injuries and damages.
If you live in Florida but you have an accident outside of Florida always ask your attorney what the statute of limitations is for filing suit in the place where your accident took place.
If you suspect your attorney has let the statute of limitations run please call our office and we will investigate your legal malpractice case and attempt to get your attorney to pay you for your injuries and damages.
If you are successful in a legal malpractice case you do not have to pay back a worker’s compensation carrier any money they paid to you. The Court recently held that a legal malpractice case is not a third party liability case under Florida State 440.39 and therefore the workers compensation insurance company does not have any subrogation rights against the legal malpractice settlement.
Columbia and FCCI Insurance Company v. Eddie Brewer Jr., 33 FLW D2473 (1 Dist., 2008)
CASE NO. 1D07-5658
Opinion filed October 22, 2008.
An appeal from the Circuit Court for Leon County.
William L. Gary, Judge.
Christopher P. Boyd, Latasha Garrison-Fullwood, David M. Gagnon, and Rhonda B.
Boggess of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellants.
Paul M. Meredith, St. Augustine; and Robert C. Crabtree, Tallahassee, for Appellees.
LEWIS, J.
Appellants, Anderson Columbia, Inc. (“Anderson Columbia”) and FCCI
Insurance Co. (“FCCI”), seek review of an Order Denying Entitlement to Lien and Discharging Lien. Eddie Brewer, Jr., Appellee, was injured by a paving machine within the course and scope of his employment with Anderson Columbia. Appellants claim that because they have been paying workers’ compensation benefits to Appellee for the paving machine injury, they are entitled, under section 440.39, Florida Statutes (1989), to a portion of the funds he received in a legal malpractice settlement with the
attorneys who mishandled his claim against the paving machine manufacturer. Because section 440.39 does not grant employers and their insurance carriers such a right, we affirm.
Shortly after his on-the-job injury, Appellee retained representation to pursue a products-liability action against the paving machine manufacturer. Appellee’s attorneys for the products-liability action neglected to file suit before the four-year statute of limitations ran on that claim. As a result, Appellee initiated an action against them for legal malpractice and breach of contract. During the pendency of that action, Appellants filed a Notice of Payment of Workers’ Compensation Benefits & Claim of Lien, pursuant to section 440.39, Florida Statutes (1989). After settling the action
against his former attorneys, Appellee filed a motion to discharge the lien, which was granted. In discharging Appellants’ lien, the trial court held that the defendants in the legal malpractice action were not third-party tortfeasors within the meaning of section 440.39(2). We agree.
This appeal presents a question of statutory interpretation. Employers and their workers’ compensation insurers have no common law right to subrogation of claims brought by injured employees against third-party tortfeasors. Shaw v. Cambridge Integrated Serv. Group, Inc., 888 So. 2d 58, 62 (Fla. 4th DCA 2004). Their right to subrogation is recognized solely as a creature of statute, and as such, is limited by the terms and conditions set forth in the Workers’ Compensation Act. Id. As in any case involving application of a statute, we are bound to give effect to the legislative intent
as expressed through the plain statutory language. Borden v. East-European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006). Only when that language is ambiguous or “of doubtful meaning” should other considerations enter into the analysis. See Vegas v. Globe Sec., 627 So. 2d 76, 85 (Fla. 1st DCA 1993). In any event, courts are not to “add, subtract, [or] distort the words” the Legislature has written. State v. Byars, 804 So. 2d 336, 338 (Fla. 4th DCA 2001). Section 440.39 governs the rights and duties of an employer or its insurance carrier (“E/C”) and a claimant in the event that the claimant’s injuries are attributable to the negligence or wrongdoing of another. Section 440.39(1) provides as follows:
If an employee, subject to the provisions of the Workers’ Compensation Law, is injured or killed in the course of his employment by the negligence or wrongful act of a third-party tortfeasor, such injured employee . . . may accept compensation benefits under the provisions of this law, and at the same time such injured employee . . . may pursue his remedy by action at law or otherwise against such third-party tortfeasor.
However, if the E/C has paid or is paying workers’ compensation benefits to the injured employee, it “shall be subrogated to the rights of the employee . . . to the extent of the amount of compensation benefits paid or to be paid . . . .” § 440.39(2).
In this situation, any legal action maintained against the third-party tortfeasor by the employee is maintained, in part, for the benefit of the E/C. § 440.39(3)(a). Even so, the right to share in the proceeds from the claimant’s action against the third-party tortfeasor does not automatically inure to the E/C; the E/C must take action to claim this right by filing a notice of payment of compensation and medical benefits. Id. That notice constitutes a lien “upon any judgment or settlement recovered” by the employee in the action against the third-party tortfeasor. Id. If the employee fails to bring action against the third-party tortfeasor within one year after the cause of action has accrued, the employer/carrier may itself initiate the action. § 440.39(4)(a).
There is no provision in section 440.39 specifically addressing any interest an E/C may have in a legal malpractice action arising out of the employee’s claim against a third-party tortfeasor who causes or contributes to the initial workplace injury. Therefore, we must decide whether this appeal by determining whether the type of injury suffered from legal malpractice is the type of injury envisioned by section 440.39(1) and whether the defendants in a claimant’s legal malpractice action are third-party tortfeasors within the meaning of that section. We hold that an injury suffered from legal malpractice does not occur “in the course of [a claimant’s] employment”and that the defendants in a legal malpractice action are not third-party tortfeasors within the meaning of section 440.39.
The Florida Supreme Court has offered the following interpretation of the meaning of an injury “arising out of and in the course of employment,” as used in a prior version of the Workers’ Compensation Act:
(F)or an injury to arise out of and in the course of one's employment, (1) there must be some causal connection between the injury and the employment [o]r (2) it must have had its origin in some risk incidental to or connected with the employment [o]r that (3) it flowed from it as a natural consequence. Another definition widely approved is that (4) the injury must occur within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.
Hill v. Gregg, Gibson & Gregg, Inc., 260 So. 2d 193, 195 (Fla. 1972) (quoting Fidelity & Cas. Co. of N.Y. v. Moore, 196 So. 495 (Fla. 1940)). When a workers’ compensation claimant’s attorney commits malpractice in pursuing a claim against a typical third-party tortfeasor, the resulting injury to the claimant is unrelated to the claimant’s job duties, occurs after the initial injury giving rise to the workers’ compensation claim, and does not affect that original injury. Any attempt on our part to consider a legal malpractice injury as occurring in the course of employment would improperly strain the statutory text beyond its plain meaning.
Nonetheless, Appellants argue that legal malpractice actions should be treated like medical malpractice actions, in which E/Cs are permitted to impose liens. To support the analogy between legal malpractice injuries and medical malpractice injuries, Appellants point out that both of these types of injuries occur subsequent to, and distinct from, the original compensable injury. In our view, this is where the similarities between the two types of injuries end. Injuries flowing from medical malpractice have, for decades, been considered compensable under the Workers’ Compensation Act because they prolong or exacerbate the underlying compensable injury. Am. Mut. Ins. Co. v. Decker, 518 So. 2d 315, 318 (Fla. 2d DCA 1987). Unlike the injury suffered from medical malpractice, the injury suffered from legal malpractice does not exacerbate or prolong the underlying workplace injury. Consequently, unlike medical malpractice, legal malpractice does not increase an E/C’s liability under the Workers’ Compensation Act. Accordingly, we are not persuaded by the analogy Appellants draw between legal malpractice and medical malpractice.
Appellee draws a more fitting analogy, arguing that a legal malpractice injury is akin to the injury suffered from spoliation of evidence. We accept this approach, as the injury suffered from both of these torts is the same–the loss of probable expectancy of damages from an underlying claim. See Shaw v. Cambridge Integrated Serv. Group, Inc., 888 So. 2d 58, 63 (Fla. 4th DCA 2004) (defining the type of injury suffered from spoliation of the evidence); Kay v. Bricker, 485 So. 2d 486, 487 (Fla. 1986) (noting that, in a legal malpractice action, “the measure of damages is the amount which the client would have recovered but for the attorney’s negligence”).
In Shaw, the Fourth District had the opportunity to consider whether such an injury arose out of and in the course of employment within the meaning of section 440.39. See 888 So. 2d at 63-64. There, the employer’s insurance carrier sought to recover a portion of the damages the claimant received from the employer in an action for spoliation of evidence. Id. at 60-61. The spoliation action was based on the fact that the employer destroyed a defective ladder that had caused the claimant’s injury, causing the claimant to settle his action against the manufacturer for less than the full measure of damages. Id. The Shaw court held that section 440.39 did not give the carrier a right to any of the damages recovered in the spoliation action, as the injury giving rise to the spoliation action was not the original work-related bodily injury, but rather, “the plaintiff’s inability to prove the case because of the lost or destroyed evidence.” Id. at 63. The Shaw court noted that the claimant’s fall from the ladder did not give rise to the spoliation claim and that the actual injury giving rise to that claim was his “loss of probable expectancy of recovery in the underlying suit.” Id. (citing Humana Worker’s Comp. Serv. v. Home Emergency Serv., Inc., 842 So. 2d 778, 781 (Fla. 2003), which resolved a similar issue in interpreting an insurance policy). Applying the Shaw court’s reasoning, we conclude that Appellee’s accident with the paving machine did not give rise to the legal malpractice claim such that the legal malpractice injury could be considered an extension of Appellee’s original workplace injury. By the same token, because Appellee’s attorneys did not cause any injury Appellee suffered in the course of his employment, they cannot be considered thirdparty tortfeasors within the meaning of section 440.39(1).
A contrary holding would violate the principle that, in deciphering statutory language, courts must strive to harmonize the various subsections of a statute, such that a term used on one subsection has the same meaning as the same term used in another. See Hobbs v. Don Mealey Chevrolet, Inc., 642 So. 2d 1149, 1158 (Fla. 5th DCA 1994). Section 440.39(4)(b) permits an E/C to initiate legal action against third party tortfeasors when a claimant has failed to do so within two years following the accrual of the cause of action. Yet there is no question that Appellants would not have been permitted to pursue a legal malpractice action on Appellee’s behalf. Appellants do not contend that they should have been able to do so, and even if they had made such a contention, Florida law is clear that legal malpractice actions are personal to the client and cannot be asserted by another person. See, e.g., Weiss v. Leatherberry, 863 So. 2d 368, 371 (Fla. 1st DCA 2003). If the Legislature intended to abrogate this settled principle of common law, it needed to state this intention directly. See Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003) (holding that statutes in derogation of the common law are strictly construed). Thus, to interpret “third-party tortfeasor” as including the legal malpractice defendants for the purpose of allowing a lien under section 440.39(3) would render the definition of the term for that subsection inconsistent with its meaning in section 440.39(4)(b). This result is untenable. Appellants contend that our narrow construction of the terms “injury” and “third-party tortfeasor” yields an unreasonable result. We disagree. Section 440.39 requires action on the part of E/Cs who wish to recoup their expenses. There are two options for such action: if the claimant files suit against a third-party tortfeasor, the E/C may file a notice in that action; on the other hand, if the claimant fails to do so, the E/C has a right to initiate the action against the third-party tortfeasor. It is not unreasonable to expect the E/C to take appropriate action to protect its own rights. In this case, the E/C could have prevented the effect of Appellee’s attorneys’ malpractice by filing suit pursuant to section 440.39(4). This option may be one reason that the Legislature chose not to provide for the right Appellants seek.
The trial court’s order is AFFIRMED.
Our firm has been recently asked to represent two separate clients who suffered third degree burns in two separate cooking fires. In both cases our clients were attempting to heat cooking oil on the stove to a temperature which would allow them to fry croquetas and French fries. In these cases the smoke alarms did not go off and the pan burst into flames. Both clients attempted to carry the flaming oil and pan outside to prevent the house from catching fire. Instead the flaming oil spilled on them which resulted in third degree burns, hospitalization, multiple surgeries, skin grafts, and rehabilitation. In one of the cases the fire extinguisher provided by the homeowner’s association did not work.
Our firm is suing the homeowner and homeowner association for our clients severe injuries and damages.
To prevent these types of fires make sure your smoke detectors work, have a working fire extinguisher in the kitchen, have a lid for the pan on the stove, do not leave the pan unattended while the oil is heating.
Manufacturers of the pans and stoves can play their part in preventing these household cooking fires by having temperature regulators built into the pan and stove to prevent the oil from reaching the flammable temperature. They can also provide proper warnings on the pans and stove on how to prevent and extinguish cooking fires.
The oil manufacturers should also provide large warnings on the containers warning users of the severe burns that can occur if the oil catches fire.
Our firm has been recently asked to represent two separate clients who suffered third degree burns in two separate cooking fires. In both cases our clients were attempting to heat cooking oil on the stove to a temperature which would allow them to fry croquetas and French fries. In these cases the smoke alarms did not go off and the pan burst into flames. Both clients attempted to carry the flaming oil and pan outside to prevent the house from catching fire. Instead the flaming oil spilled on them which resulted in third degree burns, hospitalization, multiple surgeries, skin grafts, and rehabilitation. In one of the cases the fire extinguisher provided by the homeowner’s association did not work.
Our firm is suing the homeowner and homeowner association for our clients severe injuries and damages.
To prevent these types of fires make sure your smoke detectors work, have a working fire extinguisher in the kitchen, have a lid for the pan on the stove, do not leave the pan unattended while the oil is heating.
Manufacturers of the pans and stoves can play their part in preventing these household cooking fires by having temperature regulators built into the pan and stove to prevent the oil from reaching the flammable temperature. They can also provide proper warnings on the pans and stove on how to prevent and extinguish cooking fires.
The oil manufacturers should also provide large warnings on the containers warning users of the severe burns that can occur if the oil catches fire.
At this time of year our families and especially our children can fall victim to faulty and defective products and toys. It has just been announced that Majestic High Chairs, Phil and Teds Dash Buggy Strollers and the Dinosaur Epock toy dinosaurs have been recalled because they were defective.
Our law firm has been representing children and families who were seriously hurt and even killed by broken, faulty and defective car seats, toys, high chairs and other everyday products. If you believe you or a family member have been seriously hurt please email or call us.
Read More About Children hurt when seat backs fall off...
At this time of year our families and especially our children can fall victim to faulty and defective products and toys. It has just been announced that Majestic High Chairs, Phil and Teds Dash Buggy Strollers and the Dinosaur Epock toy dinosaurs have been recalled because they were defective.
Our law firm has been representing children and families who were seriously hurt and even killed by broken, faulty and defective car seats, toys, high chairs and other everyday products. If you believe you or a family member have been seriously hurt please email or call us.
Read More About Children hurt when seat backs fall off, strollers, toy dinosaurs also recalled...
Children waited patiently in line to poke and prod a squishy gray brain made of gelatin. For them, it was play, but safety experts say the soft mass can suffer severe damage if left unprotected on a bike or in a traffic accident.
For more information, follow the link below.
Read More About Kids learn safety at Miami Lakes Bike Rodeo...
MIAMI (AP) - A gasoline tank truck driver has been sentenced to 36 years in prison for causing a fiery, explosive crash that killed four people on a South Florida interstate in 2005.
For more information, follow the link below.
Read More About Truck driver gets 36 years after fatal crash...
More than two years after Miami Beach police say he blurted out his guilt to a detective who was an old high school pal, Shane Trucchio was charged Tuesday with being the driver in a fatal Miami Beach hit-and-run accident.
Trucchio, 37, was booked Tuesday night into the Miami-Dade County Jail on a charge of leaving the scene of an accident with a death.
For more information, follow the link below.Read More About Hit-run catches up with a suspect...
MIAMI, Nov. 29 (UPI) -- Five passengers were hospitalized when an automated Miami airport train overshot a stop and slammed into a building, officials said.
One of the injured passengers was in critical condition and three were listed in serious condition at Jackson Memorial Hospital near downtown Miami, The Miami Herald reported Saturday. For more information, follow the link below.
Read More About Five hurt in Miami airport train accident...
MIAMI, Dec. 7 (UPI) -- Florida police say University of Miami assistant football coach Stephen Field rescued a motorist after the young man's car drove into a ditch and hit a tree.
The Miami Herald reported Sunday that Field, who coaches the Hurricanes' defensive safeties, used a hammer to smash the windshield of the smoking vehicle, pulled the driver out and carried him to safety with the assistance of another witness.
Read More About 'Cains coach frees driver from wrecked car...
BONITA SPRINGS — The past weekend was a rough one for the Lee County motorcycle community.
In a span of 24 hours, in three separate wrecks, two bikers from Estero died and a third, from Bonita Springs, was severely injured. All three accidents were single-vehicle wrecks, investigators with the Florida Highway Patrol concluded.
For more information, follow the link below.Read More About Three weekend biker accidents in south Lee leave two dead...
Following a round of damning surveys conducted by the Florida Agency for Health Care Administration and the federal Department of Health and Human Services, it looks like the Key West Convalescent Center, home to 80 dependent patients, may be closing.
The findings include allegations of abuse and mismanagement that resulted in Medicare and Medicaid pulling funding for the College Road facility effective Dec. 11.
For more information, follow the link below.Read More About 80 nursing home residents might be displaced...
HOLLYWOOD — Hollywood Police Chief Chadwick Wagner says an officer was killed when his patrol car crashed and burst into flames.
For more information, follow the link below.
Read More About Hollywood police officer killed in crash...
A 44-year-old Miami man was killed in a Sunday morning crash when he was ejected from his out-of-control vehicle on U.S. 41 just east of Loop Road in the Big Cypress National Preserve, according to a Florida Highway Patrol report.
For more information, follow the link below.
Read More About Miami man killed in U.S. 41 crash had been driving 119 mph...
Jack A. Hardy, the longtime owner of a Davie construction business who was once named the town's "Humanitarian of the Year," died Wednesday in a motorcycle accident on Florida's Turnpike.
Mr. Hardy was a beloved fixture in Davie's business community and an avid motorcyclist known for his long trips and philanthropy. He was 70.
For more information, follow the link below.
Read More About Davie construction owner Jack Hardy dies in motorcycle accident...
NORTH MIAMI BEACH, Fla. -- A crime spree ended Thursday night when a sedan slammed into another car at Northeast 173rd Street and 19th Avenue, North Miami Beach police said.
According to Miami-Dade police, two men were involved in a strong-arm robbery on West Dixie Highway right before the accident. Police are also investigating the two men for a robbery at a home in North Miami and an assault just down the street from the accident in North Miami Beach.
Read More About Robbery Suspects Injured After Crashing Getaway Car...
The Florida Health Care Association last week released the Emergency Management Guide for Nursing Homes, a new, comprehensive approach to disaster preparedness for nursing homes.
The new guide includes disaster-specific guidelines to establish an emergency plan and create procedures for staff training and exercises. FHCA has also launched a nursing home emergency preparedness website that highlights these new tools and provides additional resources for nursing homes. That Web site is www.fhca.org/emerprep/index.php.
For more information, follow the link below.
Read More About Florida association releases nursing home preparedness guidelines...
CLEARWATER, Fla. (AP) — The 18-year-old son of Hulk Hogan has been released from jail in Florida after serving five months for causing a serious traffic crash.
Nick Bollea was released from the Pinellas County Jail on Tuesday morning. He had pleaded no contest in May to causing the crash.
For more information, follow the link below.Read More About Hulk Hogan's son out of Fla. jail after crash term...
Boasting that it's the largest provider of geriatric healthcare in the Southeast, the Miami Jewish Home and Hospital for the Aged at Douglas Gardens has almost 500 nursing-home beds, a 32-bed geriatric hospital and living facilities for about 200 others on a 20-acre campus nestled in Northeast Miami.
For more information, follow the link below.
Read More About Miami Jewish Home exec talks economics...
The U.S. crane industry needs to step up and take control of its image or risk being legislated into the ground, attendees at a Specialized Carriers and Rigging Association workshop were told recently.
Jim Robertson, managing partner of General Crane USA and a member of the Florida Public Task Force on Workplace Safety told the group that the industry is vulnerable to the politics of knee jerk reactions driven by gory headlines.
For more information, follow the link below.Read More About U.S. crane industry faces struggle over public image...
Two restaurants in the Keys have closed temporarily while owner Santiago Adames recovers from a head-on collision that has left him unable to speak or walk.
Liliam Guzman, the wife of Adames, shut both the Miami Subs in Marathon and Country Gulls in Tavernier on Monday.
For more information, follow the link below.Read More About Crash causes two restaurants to close...
A 24-year-old North Lauderdale man was killed early Saturday morning in a single-vehicle rollover accident on Interstate 95 just south of Broward Boulevard.
Jean R. Alexandre was driving south on I-95 just south of Broward Boulevard at 5:15 a.m. when he veered to the right, then to the left to avoid another vehicle that had changed lanes, said the Florida Highway Patrol.
For more information, follow the link below.
Read More About Three men die in car accidents in Broward and Miami-Dade counties...
A fiery three-vehicle crash on Interstate 95 shut down southbound traffic just south of Fay Boulevard for four hours and sent two drivers to the hospital Wednesday afternoon.
For more information, follow the link below.
Read More About Fiery crash closes interstate...
A former Miami-Dade police detective was sentenced to eight years in prison Monday for pleading no contest to leaving the scene of a car crash that resulted in the death of a Pompano Beach man.
Michael Alayon pleaded "no contest" in March of leaving the scene of an accident with a death. He faces 30-years in prison for rear-ending his Lexus into a Chevy Blazer driven by 54-year-old Ryland (Rick) Nye on October 10th, 2006. Nye was ejected from his SUV and hit by several passing cars on busy I-595, near Southwest 136th Avenue.Read More About Sentencing For Ex-Cop Accused Of Deadly Hit & Run...
In the wake of Tropical Storm Fay, nursing homes throughout Florida have been receiving visits from state inspectors, and it appears that nursing homes have weathered the storm well.
Only two nursing homes so far have reported power outages, according to Florida Health Care Association Director of Communications Kristen Knapp, and crews responded to the situation promptly. Investigators with the state's Medicaid Fraud Control Unit assessed the physical sites and reported any safety issues to the Agency for Health Care Administration and the Department of Children and Families.
For more information, follow the link below.
Read More About Tropical storm Fay leaves Florida's nursing homes largely unscathed...
MIAMI, Aug. 26 (UPI) -- At least one witness to a major cyclist crash in Miami said in a frantic 911 call that the accident was the "most horrible thing I've ever seen."
Attorney Raymond Valori's 911 call to authorities following the weekend crash on the MacArthur Causeway reveals the extent of the trauma inflicted when 12 cyclists crashed into an automobile, The Miami Herald said Tuesday. "People were 10 feet up in the air. It's the most horrible thing I've ever seen. You need to send multiple ambulances now,' Valori said to the 911 dispatcher Sunday.
Read More About Frantic 911 calls made after cyclist crash...
TAMPA, FL -- A construction worker who was hit in the head by a piece of falling metal has died.
According to Tampa Police, 28 year old Rafael Cararez was working on the Element, a 36 story high rise currently being built on North Franklin Street, yesterday morning when a small piece of metal fell from the 36th floor.
The metal pierced through Cararez's helmet and his head. He was working on the 10th floor when the accident happened, officials said.
For more information, follow the link below.
Read More About Florida Construction Worker Hit By Falling Metal Dies...
At least one person was killed Tuesday night in an accident involving a car and a semitrailer truck on Interstate 95, the Florida Highway Patrol said.
The accident occurred shortly after 10 p.m. on southbound I-95 south of Glades Road in Boca Raton.
For more information, follow the link below.
Read More About Accident on I-95 involving semitrailer truck kills 1...
HOLLYWOOD - Two people were killed in a five-car crash Saturday morning in Miami-Dade County.
Susy Vasquez, 20, of Florida City, was driving north on the Don Shula Expressway just north of State Road 878 when her car suddenly jumped the median and went into oncoming traffic, said Lt. Pat Santangelo, spokesman for the Florida Highway Patrol. Her car hit a GMC Jimmy head-on and was then struck by another car. Both she and the driver of the Jimmy, Angel Valladares, 47, died in the crash, Santangelo said. One person received minor injuries.
For more information, follow the link below.
Read More About Two dead in head-on crash after car jumps median...
Villa Maria Adult Day Health in Northwest Miami-Dade County and St. Anne's in South Miami-Dade, both of which are part of the Archdiocese of Miami, might close forever due to a lack of state funds.
"These two day care centers have been subsidized by St. Anne's nursing home and Villa Maria nursing home," said Mary Ross Agosta of the Archdiocese of Miami. "Those two nursing homes have received a $2.5 million budget cut from the state, and we can no longer subsidize the day care centers."
For more information, follow the link below.
Read More About Adult Day Care Centers Could Close Amid Budget Cuts...
Miami -- A South Florida woman died, and another young woman has lost her unborn child, after being involved in an accident with a Miami Police cruiser, but some family members say they're not convinced by police's account of events.
Miami police said two officers in a patrol car were responding to a call around 9:45 p.m. Sunday when they collided with a Ford Escort at Northwest 8th Street and Third Avenue. Police now say that the cruiser's siren and flashing lights were on at the time of the crash but no one has been charged.
For more information, follow the link below.
Read More About Woman, unborn baby killed in police car crash...
Maurice Cameron was killed when he was struck by an automobile driven by David A. Kelly, 53, of Mulberry, according to a report from the Florida Highway Patrol.
For more information, follow the link below.
Read More About Winter Haven Man Killed In Accident...
An environmental crew is cleaning up more than 100 gallons of diesel fuel that spilled into the water at Titusville Municipal Marina before dawn today after a barge carrying a crane sank.
For more information, follow the link below.
Read More About Barge, Crane sink at Titusville Marina...
Five Florida air traffic controllers are suing roofing contractors claiming they lost their jobs after being unable to work because of toxic chemical exposure.
The five employees, Barbara Cooper, Shawn Fields, Dan Kersh, Joe Tingler and Tommy Young, claim they were fired when their doctors would not allow them to return to work in the radar room at Jacksonville International Airport's control tower. They claim continued exposure to a toxic chemical used in a roofing project caused continuing medical problems.
For more information, follow the link below.
Read More About Florida Air Controllers File Injury Reports, 5 Sue over Chemical Exposure...
A crane about 100-feet in height collapsed on its side at a construction site behind the Galleria mall Tuesday afternoon in Fort Lauderdale at 900 NE 26th. A driver was pulled from the cab with serious injuries, and the accident itself is being investigated.
Matt Little of Fort Lauderdale Fire Rescue said that the victim was transported to nearby Broward General Medical Center .
Read More About Crane Topples Over At Construction Site...
The cost of long-term care for the elderly is as much as 11 percent higher in Florida than the national average, according to a new report from Genworth Financial.
The cost of long-term care over the past five years increased as much as 28 percent in parts of Florida compared to 17 percent nationwide, according to Genworth's 2008 cost of care survey.
For more information, follow the link below.Read More About Long-term care costs higher in Florida...
WASHINGTON -- Patients hoping to get into nursing homes increasingly are signing away their rights to sue over poor care.
That's a problem, a number of lawmakers say, and they're pushing legislation to make such agreements unenforceable.
For more information, follow the link below.Read More About Patients signing away right to sue nursing homes...
A seven-car crash on West Flagler Street killed an 80-year-old man on Sunday afternoon, according to Miami-Dade Fire and Rescue.
Francisco A. Huetas of Miami was driving west in the center lane of West Flagler when he struck four vehicles stopped at the light at Southwest 79th Avenue, said Lt. Pat Santangelo, spokesman with the Florida Highway Patrol.
For more information, follow the link below.
Read More About Man killed in crash was Miamian, 80...
MIAMI (AP) Rescue crews amputated a man's leg on a Miami highway after he was crushed between two vehicles.
According to Florida Highway Patrol, the man was checking the damage to his car Friday after being hit from behind by a sport utility vehicle in the center lane of SR-836. Another car then crashed into the SUV, pinning the man.
For more information, follow the link below.Read More About Rescue crews amputate man's leg on highway...
MIAMI (AP) — The arm of a mobile construction crane came loose Monday in Miami, injuring at least one worker and leading to the partial evacuation of a nearby hotel as a precaution.
The accident happened shortly before 3 p.m., with the arm swinging into the machine's vertical base, Miami Fire Rescue spokesman Ignatius Carroll said. The crane did not collapse or fall, but a worker who was midway up the 212-foot machine was hospitalized with severe injuries to his right arm.
For more information, follow the link below.Read More About Crane accident in Miami injures 1 worker...
Prosperity, S.C. police have arrested nursing home owner Roy Bowers and charged him with neglect of a vulnerable adult resulting in death.” His health care administration license was suspended by the state.
The arrest came days after William Sealy, a 1-year resident of Southside Residential Care Facility ,was taken to Newberry County Memorial Hospital after suffering from malnutrition, dehydration, pressure sores, bed-bug infestation and black, swollen toes. After examining Sealy, hospital medical personnel contacted police.
Sealy was put on a ventilator at the hospital. Three weeks later, he died of pneumonia and severe infection. It was reported he had suffered from schizophrenia.
Prosperity, S.C. Police Chief Craig Nelson told WLTX-TV, the CBS affiliate in Columbia it was, “one of the toughest cases I’ve been involved in. It was definitely the most heartbreaking.” At the hospital, Nelson watched nurses treat Sealy. "After pulling off his socks that he had had on his feet for sometime, it pulled off portions of his skin. His feet were also covered in bed bugs,” the chief said.
When brought to the hospital ER, Sealy weighed 94 pounds, 70 pounds below the average weight for a man his age, medical officials said. Sealy’s ears were packed with fluid and one of his toes had blackened. Attending personnel at the hospital said Sealy had not been bathed in over one week
The state Department of Health and Environmental Control reported Southside’s most recent inspection was in January 2007, when officials found documentation errors. DHEC said Southside’s staff members were meeting training requirements and resident care plans were properly updated.
Read More About Former S.C. Nursing Home Resident Dies of Malnutrition...
What a difference a day makes.
That’s the irony the Wiggins family of Williamsburg, Va. is dealing with after the death of its’ 84-year-old mother.
Lorina Wiggins, 84 had been a resident of the Ruxton Health nursing facility before being transported to Sentara Williamsburg Regional Medical Center, after nursing home staff reported she had numerous Stage IV pressure sores. Upon arrival at the hospital, doctors there said the sores were untreatable. Wiggins died a week later, according to the Virginia Gazette in Williamsburg. The sores on Wiggins’ legs ranged in size from 2-by-1 inches to 7-by-3 inches.
One son, Mike, said Ruxton had telephoned him a week before the transfer saying his mother was in good condition. Then the very next day, Ruxton staff called back to ask his permission to amputate his mother’s leg. Another son, Bob, visited his mother at Ruxton and asked staff to transport his mother immediately to the hospital. However, Ruxton staff said his mother’s case was a non-emergency matter, said the Gazette.
Williamsburg Police requested the medical records of Wiggins. Manuals and standard operating procedures for the care of bedsores and open wounds have also been requested by police. Meantime, Williamsburg-James City County Commonwealth Attorney Nate Green said “We have been concerned about a number of patients where issues have been raised,” Green said, relating to the Ruxton home. “We are investigating both the care provided and illegalities there.”
Green went on to say the nursing home, not any one individual would face possible charges.” At this time we don’t believe that one person is responsible. We are looking into whether the entire facility acted criminally,” the Gazette confirmed.
The Department of Health & Human Services Administration on Aging defines elder abuse as, “any knowing, intentional or negligent act by a caregiver that causes harm or serious risk of harm to a vulnerable adult,” the Gazette reported.
Read More About Virginia Nursing Home Could Face Charges in Death of Resident...
A 19-year-old construction worker at the Emerald Forest Apartments was killed April 7 while he was attempting to remove a staircase from a deck.
The Occupational Safety and Health Administration is investigating. Fire department officials said Lopez was from Honduras and had been working in the United States for one year. He was supporting a family in Central America.
Authorities said the apartment complex in Mableton is undergoing a remodeling. Workers were tearing down the stairwells when the weight of one section came loose and crushed Lopez to death. Officials said Lopez died of severe head trauma, according to WSB-TV in Atlanta.
"They're doing construction on all these back porches and staircases,” said Denell Boyd with the Cobb County Fire Department. “They're old metal stairs, and they're remodeling and adding wood steps. Lopez was checking the stability of one when it fell down and hit him in the head.”
At the scene, most of the black iron staircases remained attached to the facing of the building while one lay crumpled on the ground. Bystanders, many of them Hispanic, wiped away tears as firefighters taped off the debris-strewn accident scene.
Read More About Teen Construction Worker Killed During Staircase Demolition...
Ten days after a similar accident killed seven in New York City, another construction crane fell – this one at a Miami condominium project -- killing two and injuring five on Biscayne Bay, ABC News reported.
This crane fell 30 floors, damaging parts of the condo and a nearby Spanish-tiled roof building the construction contractor used for storage. One construction worker died in the supply house and another died later at the hospital.
Pipe fitter David Martinez was eating lunch on the construction site when the crane started to fall. "It was like a small earthquake," he said. "We looked outside, and we couldn't even see. It took several minutes for the dust to clear.”
Mary Costello of Bovis Lend Lease Holdings Inc. -- management firm of the construction project -- said a subcontractor was raising the crane when a section came loose and fell.
"Our hearts are heavy at this moment for the two deceased individuals, including one of our own employees and the additional injured workers," she said in a statement.
The U.S. Occupational Safety and Health Administration is investigating. Darlene Fossum, an area director for OSHA, said Bovis Lend Lease was a company with an excellent record in safety precaution. OSHA issued five violations against subcontractor Morrow Equipment Co. nine years ago involving problems with digging but not crane operation.
Currently, Florida does not license or regulate construction crane operators but there is legislation in both houses of the state legislature that would change the law. After a fatal crane accident two years ago in Miami, state government officials worked with building industry representatives to draft stricter safety measures for construction crane operators. Those measures go into effect this week.
Read More About Miami Crane Accident Kills Two Workers...
The Naples (Fla.) News decided to examine why the Florida Department of Education (FDE) found the Lee school district had the second-highest number of accidents involving a bus – 109 -- of any school district in the state. Orange County led the way with 118 bus accidents during the 2006-07 school year.
The answer may be a simple one.
In the Lee school district, there is a school choice program, one of only three in the state. It allows students who live outside geographic school boundaries to attend classes in Lee district. Thus, many of Lee’s students spend more time on buses than students in other Florida school districts.
In Lee, 700 school buses travel 75,000 miles a day or 13.5 million miles annually, the Naples News reported. School buses in Broward County -- which has three times the students than Lee -- travel a similar number of miles.
This arrangement makes Lee’s per-student transportation cost one of the most expensive in the state, said the FDE. Lee spends $200 more per student than the average Florida school district student, according to the FDE.
Lee School District Communications Director Joe Donzelli said just because his district’s buses travel more miles, that doesn’t mean the ride is unsafe. “When you look at the overall safety record of buses getting to and from school, yes there may be more incidents, but what kind of incidents are they?” He went on to say that some accidents involve buses clipping mirrors or being rear-ended. Of the 109 accidents listed in the state accident report, the point of impact for 38 was on the rear-end side, according to the FDE.
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http://www.naplesnews.com/news/2008/mar/17/lee-ranks-2nd-collier-15th-among-counties-most-bus/
Read More About Students with Longer Bus Rides Face Higher Accident Potential...
The Naples (Fla.) News decided to examine why the Florida Department of Education (FDE) found the Lee school district had the second-highest number of accidents involving a bus – 109 -- of any school district in the state. Orange County led the way with 118 bus accidents during the 2006-07 school year.
The answer may be a simple one.
In the Lee school district, there is a school choice program, one of only three in the state. It allows students who live outside geographic school boundaries to attend classes in Lee district. Thus, many of Lee’s students spend more time on buses than students in other Florida school districts.
In Lee, 700 school buses travel 75,000 miles a day or 13.5 million miles annually, the Naples News reported. School buses in Broward County -- which has three times the students than Lee -- travel a similar number of miles.
This arrangement makes Lee’s per-student transportation cost one of the most expensive in the state, said the FDE. Lee spends $200 more per student than the average Florida school district student, according to the FDE.
Lee School District Communications Director Joe Donzelli said just because his district’s buses travel more miles, that doesn’t mean the ride is unsafe. “When you look at the overall safety record of buses getting to and from school, yes there may be more incidents, but what kind of incidents are they?” He went on to say that some accidents involve buses clipping mirrors or being rear-ended. Of the 109 accidents listed in the state accident report, the point of impact for 38 was on the rear-end side, according to the FDE.
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<p>A repeated offense for “inadequate fall-prevention equipment” cost the BC Construction company the life of one of its laborers and a fine from the Occupational Safety and Health Administration (OSHA).</p>
<p>OSHA fined the company $22,400 and cited the construction firm for numerous "serious" violations in connection with the death of Benedelso N. Ovalle, 21, who fell 20 feet from a roof in Lynn last summer, according to The Salem News in Massachusetts. BC was renovating a home that was to become a new Baptist church in Salem at the time of the fatal accident.</p>
<p>The News reported the worker fell after hoisting a bundle of shingles to the roof, police said. "It appears he turned around to adjust the ladder and, as he did, he toppled over," a police spokesman said.</p>
<p>After its investigation, OSHA cited BC for a lack of "fall protection" equipment for its roofers, a defective ladder, improper safety harnesses and a lack of training to work on a roof. OSHA found BC workers wearing rock climber's harnesses instead of the standard full-body harnesses, the agency said.</p>
<p>Ovalle was conscious after falling but complained of stomach pain, the News said. He died before a medical helicopter could reach him for hospital transport. Police said Ovalle was not wearing a harness and only three of the five workers on the roof had fall-protection equipment.</p>
<p>In January 2007, BC was cited for inadequate fall-protection equipment in an accident in Peabody, OSHA reported.<p>
Read More About OSHA FInes Construction Firm in Death of Laborer...
<p>Safety officials have slept on the issue and now issued a recall of 24,000 baby cribs from Indonesia.</p>
<p>Imported by Munire Furniture Inc., the cribs contain brackets that prohibit its’ mattresses from fully being lowered. Officials say this could allow children to crawl over the railing and fall, reported the Associated Press in Washington.</p>
<p>Thus far, no injuries or fatalities have been reported.</p>
<p>Parents should be alerted if they own a Majestic Curved Top, Majestic Flat Top, Essex, Brighton/Sussex or Captiva crib. The cribs were sold between November 2005 and November 2007.</p>
<p>The Consumer Product Safety Commission (CPSC) reported from 2002 to 2004, 241 children under age 5 died in incidents involving nursery products. Forty percent of the deaths involved cribs where soft bedding was the leading contributor, the CPSC said. The federal agency said many children suffocated when lying face down on pillows or bedding.</p>
<p>"Less is more when you're talking about the crib," CPSC spokeswoman Julie Vallese said, She said adult pillows, blankets, stuffed animals and infant quilts should remain outside the crib.</p>
<p>The CPSC instructs parents and those in the day-care profession to place babies on their backs in a crib that meets safety standards. The agency said this would help prevent suffocation and Sudden Infant Death Syndrome (SIDS).</p>
<p>Babies can become trapped while lying on a mattress that does not properly fit the crib structure, the CPSC said. As a rule, parents never should have a gap larger than two fingers anywhere between the sides of the crib and the mattress, the agency advised.</p>
<p>In 2006, the CPSC reported 66,400 emergency injuries linked with nursery products among children under age 5. Infant carriers and car seats, excluding motor vehicle accidents, accounted for 14,200 injuries and cribs and mattresses accounted for 11,300.</p>
Read More About Company Recalls 24,000 Baby Cribs...
<p>One of the lowest forms of physical abuse has forced four Hillsborough (Fla.) County deputy sheriffs from the jobs without pay.</p>
<p>The Orlando Sentinel reported Brian Sterner was brought to the police station on a traffic violation. A quadriplegic bound to a wheelchair, Sterner was asked by one deputy to “stand up.” When he told Deputy Charlette Marshall-Jones he could not, she became agitated and wheeled him a few feet before ”dumping” him on the floor, similar to how one would dump the contents of a wheelbarrow. Jones has been with the department since 1986, according to Fox.news.com.</p>
<p>The incident was taped by surveillance cameras, prompting disciplinary action by the Tampa police department.</p>
<p>According to Sterner, Marshall-Jones "was irked that I wasn't complying with what she was told me to do," he told The Tampa Tribune. "It didn't register with her that she was asking me to do something I can't do."</p>
<p>Jones has been suspended without pay, while Sgt. Gary Hinson, Cpl. Steven Dickey, and Cpl. Decondra Williams have been placed on administrative leave according to the sheriff's department. "The actions are indefensible at every level," Chief Deputy Jose Docobo said. "Based on what I saw, anything short of dismissal would be inappropriate."</p>
<p>Sterner was arrested at home Jan. 29 after attempting to elude a police officer, records show. He posted $2,000 bail and was released Feb. 3. A warrant for Sterner's arrest was issued after an Oct. 25 incident in which Tampa police stopped him in Ybor City. Police stopped Sterner, who was driving a vehicle fitted with hand pedals.</p>
<p>"My client was stopped that night and was given a traffic citation, so how could he be fleeing and eluding?" said Sterner's lawyer, John Trevena. "We're very skeptical about the basis for the charge." His client had no prior arrests.</p>
<p>The St. Petersburg Times reported Sterner suffered a spinal cord injury at 18 during a wrestling accident. Sterner said he's never had to prove to someone he is disabled. "I made it clear in plain language that I was a quadriplegic," he said. Sterner said his callused hands are proof he lives his life in a chair. "I push every day," he said.</p>
<p>"I'm not really into lawyers," Sterner said. "But I do believe in responsibility and I'm very glad there were cameras because what she did to me is wrong. There's no debating it - just plain wrong."</p>
Read More About Deputy Sheriff "Dumps" Quadriplegic Out of His Wheelchair...
<p>An 86-year-old man driving to his neighborhood school to vote in the presidential primary lost control of his sport utility vehicle, drove across a lawn and jumped a sidewalk before striking a young schoolchild. It happened at the main entrance to Elizabeth Lyons Elementary School in Randolph, Mass., the Boston Globe reported.</p>
<p>Police identified the victim as second grader Brittany Noel, who was admitted to Boston Medical Center with “serious” injuries, according to hospital officials. "We heard she’s that in the pediatric intensive care unit and in stable condition," said Randolph School Superintendent Richard Silverman. "It was an unfortunate accident."</p>
<p>Lyons School Principal Leo Flanagan said students witnessed the entire event while others had to run from the oncoming vehicle. "Counselors from the district have come here to help the kids process it," he said.</p>
<p>William Geisler, the driver, was taken to Milton Hospital and soon released. His wife, Ruth, who was not in the vehicle at the time of the crash, was reached at home by the Globe. "He's not up for talking to anyone right now," she said. "We've called our insurance."</p>
<p>Ten counselors talked to Lyons Elementary students about the incident at their school. Ann Holleran said children had many questions. "Children who witnessed it were upset," she said. "They asked us questions like, 'Why do accidents happen?' We told them, ‘Sometimes accidents just happen.’"</p>
<p>Stacey Kelsey arrived at the Lyons School at 12:45 p.m. to pick up her cousin's son. She told the Globe that parents know not to drive in the round driveway directly in front of the school (where the accident occurred). "When I heard that, it all fit," she said, after learning details of the crash. "It's devastating. It's sad all around."</p>
Read More About SUV Jumps Sidewalk, Strikes Second-Grader at Mass. School...
It was a sight one Austin, Texas schoolteacher will never forget.
Searching for a 7-year-old boy who had excused himself from a school assembly to use the rest room, the teacher discovered the boy hanging on a hook and unconscious, with his pants pulled down but underwear on. Listed in critical condition when he arrived at the hospital, the boy died the next day, the Associated Press reported.
KXAN-TV, the NBC affiliate in Austin, said the boy may have suffered a heart attack. Police said the boy was in cardiac arrest from a lack of oxygen when paramedics arrived at Magnolia McCullough Elementary School.
The APD ruled out sexual assault or bullying. Police said the boy wore loose pants which may have fallen down on their own.
"We have concerns," said Jeff Hampton with the APD Child Abuse Unit, "not just as far as the criminal investigation, but also concerns with how the school operates, which is not under our domain to dictate what should or should not be done, but the schools should be a safe environment for our children," KXAN reported.
The hooks on the wall in the boys’ gym locker room bathroom were “low” enough where the boy’s shirt collar could have gotten stuck, police said.< FONT>
There was no surveillance camera in the rest room where the boy was found. Police are interviewing students and staff members at the charter school, which offers pre-kindergarten through third grade.
Thus far, there is no evidence the boy was bullied at school, but it's possible he was attacked, Spangler said. Even if police find another student responsible, Texas criminal law doesn't apply to children under 10 years of age, said LaRu Woody, Travis County assistant prosecutor.
Read More About Seven-Year-Old Boy Found Hanging on School Rest Room Hook Dies...
Prince George’s County officials aren’t waiting for Maryland state administrators to make up their minds.
Although Del. Barbara A, Frush (D-Dist 21) of Beltsville said a state bill for installing speed cameras on school grounds is likely to pass during this year’s state General Assembly session, the county has a back-up plan.
If the bill fails, Del. Justin D. Ross (D-Dist. 22) of Greenbelt and Sen. Paul G. Pinsky (D-Dist. 22) of University Park are sponsoring a bill to have cameras installed within a half-mile of schools in the county. Motorists traveling 10 mph or more over the speed limit would be fined $40, according to the gazette.net.
Heavily-trafficked Allentown Road is the epicenter of concern. Tayac Elementary, Isaac J. Gourdine Middle and Friendly High schools — with a combined total of more than 2,600 students — are located within a 2-mile radius of Allentown Road in Fort Washington. More than 60,000 motorists use Allentown Road every day and 14 people have died on that road since 2000, said the Prince George’s County Police Department.
Four year ago, Taura Lloyd and her 8-year-old daughter were hit as they crossed Allentown Road in front of Gourdine. The woman died at the scene after she was hit by one car and hit again by a second car traveling in the opposite direction, according to police. Her 8-year-old daughter, a Tayac student, suffered a broken arm and broken leg.
Del. Jay Walker (D-Dist. 26) of Fort Washington said the area along Allentown Road is dangerous. ‘‘You have a road where in a less-than-2-mile radius, thousands of children are threatened by speeding motorists,” he said. “You’ve got to have those cameras installed.”
Tia Stephens, president of Gourdine’s parent, teacher, student association, supports speed cameras. ‘‘I’m concerned about speeding,” she said. ‘‘Especially with the winter months and icy conditions, we are more concerned than ever.”
Read More About Maryland County Pushing for School Traffic Cameras...
Was it fog or smoke from a fire?
That’s what fire department officials want to know as they investigate the wreckage from a 70-vehicle pileup which killed four motorists and injured 38 others January 9 in Polk City, near Tampa. The nearby fire began as a controlled burn, but burned out of control and scorched 400 acres near the interstate, according to the Miami Herald. Visibility was reduced to zero, the Tampa Tribune said.
Highway department officials closed 14 miles of I-4 to clean up debris. I-4 is the main artery connecting Tampa and Orlando. The Tribune calls it one of the “commuter lifelines” in the Bay Area. Fires from burning trucks in the accident blackened the highway asphalt. A day later, encroaching fog continued to hamper clean-up efforts. Twenty tractor-trailers and at least one tanker were involved in the crash. Six of the semis were destroyed and the tanker was set ablaze, the Tribune reported.
”Please don't even try to come here,' Polk County Sheriff Grady Judd told CNN.
Families of the deceased met with medical examiner to identify the dead, Florida Highway Patrol Trooper Larry Coggins said. In addition to the fatalities, five motorists were seriously injured. Their conditions were unknown Jan. 10.
Robert Ellison was driving on I-4 when he barely avoided a collision. "Everything came to a halt," he said. "You couldn’t see your hand in front of your face."
The Tribune interviewed Polk City resident Dick White, who heard crashing sounds. "We woke up to the sound of muffled explosions,” he said. “It sounded like bombs going off. You didn’t hear tires squealing, just ‘boom, boom, boom,’" he said. "Apparently, drivers didn’t see each other or have time to hit the brakes."
The Florida Department of Agriculture is investigating the brush fire, the Tribune reported.
Read More About Fog, Smoke Envelop Interstate, Killing Four Motorists...
A semi that failed to slow its speed in a construction zone on a rural divided highway in western Illinois rammed two vehicles and killed at least three people days before the year ended, according to the Minneapolis Star-Tribune.
Illinois State Police said a tractor trailer carrying potatoes kept its speed when it merged from two lanes into one as it approached the construction zone. The semi rear-ended one car, sending it into the median. The semi then plowed into a car, which hit a fourth vehicle that burst into flames. The semi also caught fire and spilled 45,000 pounds of the crop it was hauling. Three other vehicles, including a second semi, were involved in the chain-reaction crash. Seven vehicles were involved in the accident.
Dead in the pile-up on Route 39 in La Salle County were Donald and Faye Rautio of Minnesota, who were traveling to their winter home in Florida, according to their son, Eric Rautio, 38. The couple’s dog survived the crash, Star-Tribune.
State police still have not charged the driver of the truck
Eric Rautio said his parents were "young and healthy and had one grandson." His father played in softball leagues near their retirement home in the Villages, Fla., and his mother was involved with the League of Women Voters.
Donald had been a principal at Adams and Morris Bye elementary schools in the Anoka-Hennepin School District in Minnesota. Faye helped establish an early childhood education programs in the Robbinsdale School District.
The son said a memorial service is being planned at Hennepin Avenue United Methodist Church after New Year's, and another service likely will be held in Florida.
Read More About Tractor Trailer Starts Chain-Reaction Crash; Three Killed...
An expert in product safety and liability says “plain old” consumer awareness may be driving the latest surge in product recalls.
Michael Brown, former executive director of the Consumer Product Safety Commission (CPSC), said heightened consumer concerns about product safety are due to increased consumer awareness, rather than a greater number of unsafe products, according to insurancenewsnet.com.
“We generally have safer consumer products now than we did 20 years ago," said Brown, now an executive with Brown & Gidding, PC. "Thanks to the Internet and other forms of communications, we have greater awareness among consumers with safety violations."
But Brown is wary of product and manufacturing globalization. He said outsourcing limits government’s and manufacturers’ control over quality control. "The CPSC is woefully depleted, and needs additional staff and training to address these concerns," said Brown. "At the same time, many of the large multinational companies involved in high-profile product recalls had safety standards and policies in place, but assumed their suppliers and contract manufacturers halfway around the globe had the same understanding to adhere to those standards."
Insurancenewsnet.com reported Thomson, West, a legal information services provider, found product liability lawsuits filed in federal courts have doubled in the last five years. A record was reached in 2006 with 28,274 cases filed in federal courts. Pharmaceutical companies accounted for half (47%) of those suits since 2002, followed by industrial manufacturing (14.5%), health care (5%), chemicals (5%), construction (4%) and retail (4%).
Read More About Ex-Consumer Product Chief Says "Awareness" is Driving Recalls...
A three-year old boy playing in a 6,000-square-foot inflatable playground during a birthday party was killed with two adults playing “King of the Hill” fell onto the boy’s head and caused severe head trauma.
Jacob Pierce of Longview, Wash. was jumping on the inflatable toy at Hoppin’ Houses in Castle Rock, Wash., when the accident occurred. Witnesses said Pierce was hit in the head by an adult’s elbow, knee or shoulder.
Paramedics found Jacob bleeding from the nose and mouth. The boy suffered traumatic head injuries and was pronounced dead at St. John's Medical Center in Longview. The Cowlitz County coroner informed the family the boy died at the scene and did not suffer when an elbow or knee crushed his skull.
"The men shouldn't have been in there,” Rebecca Pierce, the boy’s mother, said. “You need to have more supervision there than just an 18-year-old sitting at the counter," reported KOMORadio.com in Seattle.
However, the mother is the one with the guilt. "I'm in charge of that child," she said. "I was supposed to watch that child."
A cousin of the boy visited Hoppin’ Houses later that day and discovered the restaurant was open for business and hosting another birthday party. According to the Pierce family, patrons had covered her son's blood with a mat before hosting the next party. The family who held that party claimed they were not told of the fatal accident.
NWCN.com reported Pierce signed a waiver liability release before the party., which is standard business practice according to he web site. Hoppin’ Houses did not have a permit to operate as an amusement facility and has been closed, NWCN.com added.
Read More About Tumbling Adults Fall Onto and Kill Boy at Inflatable Playground...
A construction worker and father of four children fell to his death at a Home Depot construction site in Pelham, N.Y., according to lohud.com
Forty-eight-year-old George Leak apparently lost his footing on a beam and fell 25 feet onto a concrete platform. It was the first day on the job for the resident of Jamaica, N.Y., employed by Leading Edge Contracting in Oldwick, N.J.
New York City firefighter administered CPR to Leak, who never regained consciousness and was pronounced dead at Jacobi Medical Center in the Bronx. The Occupational Safety and Health Administration will investigate.
"He died doing what he loved," said Leak’s sister, Leatric. Her older brother had been in the construction business 24 years. His children range in age from 23 years to 17 months.
Read More About N.Y. Man's First Day on Job Results in Fatal Fall...
For the third time in four months, there has been a construction accident at the Fontainebleu Hotel and Casino construction site on the Las Vegas strip. In two instances, a construction worker died. A total of three workers have died on the project this year.
In the latest incident, four iron workers fell while working on a retaining wall that gave way. The $2.8 billion Fontainebleau project has been shut down by the Occupational Health and Safety Administration (OSHA). The Nevada Occupational Safety and Health Enforcement (NOSHE) will assist the federal safety agency with the investigation.
The iron workers were wearing harnesses but one broke, causing a worker to free fall 30 feet into a 10-foot-deep hole. During the fall, he barely missed exposed iron reinforcement bar. “There was “rebar” everywhere,” said Scott Allison of the Clark County Fire Department. “I have no idea how on earth he missed the “rebar.” Had he hit it, he would have been impaled."
When fellow workers pulled the victim from the trench, he was unresponsive. CPR was performed on the scene before the victim, described as a 26-year-old man, was taken by paramedics to Sunrise Hospital.
Read More About Third Worker Dies at Fontainebleau Construction Site in Las Vegas...
The Plant City, Fla. Christmas parade ended tragically Dec. 7 when a 9-year-old boy was run over and killed by a pickup truck pulling a float, according to TBO.com., a website covering news in Tampa.
Jordan Hayes had been passing beads and candy out to the crowd along the parade route. When he went back to the moving truck to get more treats, his foot became caught under a truck tire and he was pulled underneath the vehicle. When the crowd yelled at the driver to back up, he did so, running over the boy a second time. The driver, Jerry Bridges, was Hayes’ cousin.
Hayes and Bridges were part of The Greater Heights Family Worship Center’s float in the parade. Hayes was in Plant City to visit his brother Joshua Miller, said Bridges, his only comment.
"This is a tragedy that defies words," Plant City Police Chief Billy McDaniel said. “This was supposed to be a time of celebration and joy, but it has turned into a terrible tragedy.”
Paramedics transported Hayes to South Florida Baptist Hospital in Plant City where he died from his injuries, police said.<./p>
"This is a horrific, freak accident," said Plant City Mayor Rick Lott, who was seen consoling Bridges and other family members at the scene. "This puts a shadow over Christmas." Lott spoke with Hayes' parents -- Jerry and Connie -- who drove to Plant City from Inverness when they heard the news about their son. Lott said the scene at the hospital was too emotional for words. "Everyone's in shock," he said. "It's a tragic, tragic scene.’
This was the first-ever tragedy in the parade’s 24-year history.
Read More About Boy Caught Under Truck Tire in Parade Dies from Injuries...
A 38-year old construction worker was killed when he became trapped between a boulder and retaining wall on the site of a new home in Austin, Texas, reported CBS affiliate KEYE. The station said sometimes boulders are purposefully used to retard landslides.
Investigators say the man, Armando Santoya Cruz was digging a trench when he was crushed to death by several large boulders. Roger Wade with the Travis County Sheriff’s Department said investigators “Are trying to figure out how the rocks fell on him, what support was being built and how that all lays out."
Occupational Safety and Health Administration (OSHA) will conduct its own investigation into construction practices at the job site in West Lake Hills. “At this point, we really don’t know how those rocks shifted," said Wade.
Read More About Man Killed When Rocks Shift at Texas Construction Site...
Forget dodge ball, bullying or birth-control pills on school grounds. The most serious issue could be “tug of war,” commonly played in physical education class.
In Parker, Colorado last week, two high school students nearly had their hands severed when one side suddenly released the rope.
Students were playing the game during a pep rally in the school gymnasium as part of Homecoming week. The school’s football game was cancelled.
"The rope was wrapped around his hand and in essence was like a noose,” said Dr. Lewis Oster of Hand Surgery Associates in Denver, according to WRC.com, the NBC affiliate in Washington, D.C.
Henry Barrett and Mitch Helfer underwent micro surgery to reattach their hands. The 16-year-old Barrett -- in surgery 10 hours -- remained hospitalized in serious condition the day of the accident.
Barrett's doctor told Denver television station KMGH the 16-year-old wrapped the rope around the palm of his right hand for a better grip. "…a bunch of the kids let go, creating an imbalance in the tugging and it pulled his hand off,” said the surgeon.
Dr. Oster repaired the bones in Barrett’s hand with titanium plates. Then the surgeon reattached muscles, microscopic veins and arteries. The doctor anticipates his patient will play the flute again "and I anticipate it'll be in the next few months," according to United Press International.
"Based on the condition of the tissue, I'll think he'll have a fully functional hand," Dr. Oster said. The doctor said 40 percent of such injuries (avulsion) are successfully repaired. Barrett’s mother shared part of a poem her son composed from his hospital bed: "I may have been injured, but my eyes have been opened. The future has a mind of its own."
Helfer's family declined interview requests at Denver Health Hospital.
Read More About Two Students Have Hands Torn from Wrists During Tug of War...
J.C. Penney is recalling 70,000 toys made in China, Taiwan and Vietnam after laboratory tests showed lead may be present in the paint on the toys’ plastic, reports the Consumer Product Safety Commission (CPSC) in Washington, D.C.
Amid the recalled units were Winnie the Pooh play sets and art kits. The Winnie the Pooh set in question is made of 23 pieces including a white or black baby doll with diaper bag, blanket, playpen, highchair, swing, stroller and carrying bags. It was sold in the United States from August 2005 through August 2007. The art set consists of a wooden box with pull-out trays containing 177 different items, including paints and brushes. It was sold September 2005 through August 2007.
Lead is toxic chemical element that, if ingested by young children, can cause nerve damage. Regulations state children's products with greater than 0.06 percent lead that could be accessible to users are subject to recall.
Over 20,000 Chinese-made toys were recalled by other companies, according to the CPSC. Miniature Jeff Gordon NASCAR helmets by Riddell Inc., bendable dinosaur toys by Kipp Brothers and magnetic art kits by Cracker Barrel Old Country Stores were recalled due to lead-contamination.
According to Wikipedia, lead turns gray after exposure to air. A heavy metal, lead accumulates in a human’s soft tissues and bone over time. Like mercury, lead is a neurotoxin, meaning the contaminant attacks a body’s nerve cells. Lead also can cause brain and blood disorders.
Read More About J.C. Penney Recalls 70,000 Toys Amid Lead Fear...
So much for releasing a minor into the custody of their parents.
Hours after a 12-year-old, unidentified female in Houston was sent home from school after allegedly pointing a gun at teachers, she returned to campus. This time, she pointed a gun at three teachers and a maintenance worker in the Dean Middle School gymnasium. Harris County Police intervened at gunpoint and apprehended the girl.
The Harris County Sheriff’s Department said the girl now could be charged as an adult. She faces two counts of assault with a deadly weapon.
Earlier that day, Sept. 28, the girl was sent to the principal’s office for starting a fight and threatening to kill a teacher and students. The girl wasn’t deterred by a school suspension. The sheriff’s department was ready to charge her but the district attorney for Harris County declined.
"At that point, charges were refused on the basis of “no imminent threat," said Chief Larry Shiflet with the Harris County Precinct 4 Constable's Office.
No students were injured but plenty frightened during the lockdown. "She just pulls out the gun. Everybody -- they just started screaming, 'Lock down, lock down, lock down,'" a student at the school said.
Three beef-eaters in 12 states, including Florida were sickened with the E. coli bacteria, prompting voluntary recall of 21.7 million pounds of frozen hamburger patties from The Topps Meat Co. in Elizabeth, NJ, the Associated Press reported. Earlier in the week, 332,000 pounds of ground beef from the same company was recalled from retail grocery stores. Twenty-two other consumers became ill, though a cause of their sickness hasn’t been determined.
The recall includes beef with a “sell by date” or “best used if sold by date” of Sept. 25, 2007 – Sept. 25, 2008. All recalled products contain the USDA establishment number of 9748, located on the back of the package. It was the first-ever recall by Topps in its 67-year history.
The U.S. Department of Agriculture suspended the grinding of raw products at the Topps plant after inspectors there found faulty safety measures it would not detail. “Because the health and safety of our consumers is our top priority, we are taking these expansive measures,” said Geoffrey Livermore, vice president of operations for the Topps Co.
The USDA confirmed three people contracted the E. Coli bacteria from Topps products, with 22 other cases under investigation. Besides Florida, cases were located in Connecticut, Indiana, Maine, New Jersey, New York, Ohio and Pennsylvania. Samantha Safranek, 15, of Pembroke Pines, became ill after eating a Topps hamburger on Aug. 17, was hospitalized on Aug. 23, and underwent dialysis before recovering, according to the New York Times.
E. coli causes temporary intestinal illness in adults but is deadly for infants, the elderly and people with deficient immune systems. Symptoms are stomach cramps, bloody diarrhea and sometimes, kidney failure.
The mother said it was the shoes. The shoemaker says it was the escalator. Fault has not been determined but one thing’s for sure, four-year-old Rory McDermott had his big toenail ripped off August 31st, when one of his Crocs was sucked into an escalator in Mclean, Virginia.
It happened at the Galleria Mall at Tysons Corner Shopping Center. Said the mother, Jodi McDermott, "He was standing still. His foot wasn't near this edge. It was the left side of the shoe, so it pulled and twisted the shoe in. It pulled the big toe over and it essentially ripped the toenail off except for one little corner."
Fairfax County EMTs took the boy to a hospital for treatment. The emergency room doctor confirmed the boy's big toenail had been ripped off almost completely.
"When we got to the hospital, they said this is actually a common occurrence with Crocs," the mother said. She went on to says the makers of Crocs should issue a warning about the potential dangers of wearing them on an escalator.
Crocs maintains its shoes are safe. They blame the escalator for the accident. On its website, Crocs Inc. lists “top” reasons to have their product: 1) the are really soft, super comfortable, molds to your feet, 2) they are barely there, weighing only 6 ounces and 3) they are vented so air passes through, keeping feet cool.
The site then gives “added” reasons to own a pair: 4) they have non-marking, slip-resistant soles; 5) they are bacteria and odor resistant, 6) they have ultra-hip Italian styling, 7) they have port holes which allow water and sand to pass through, 8) they can be sterilized in water and bleach, 9) they are easy to maintain, and 10) they have an Orthotic-molded foot bed for ultimate comfort and support.
The company was founded in Boulder, Colorado in 2003. Its customer service department can be reached at 866.306.3179. Online, the company can be accessed at Crocs.com.
http://www.nbc4.com/news/14026136/detail.html?dl=headlineclickOn August 22nd, 2007 it was reported in the Atlanta Journal-Constitution that Progressive Insurance Company has been sued for an invasion of privacy.One of their insureds made an underinsured motorist claim. Progressive planted two undercover investigators in a support group led by their insured's church. The group discussions were secretly recorded. Not only was the insured's privacy violated but other church members and the minister's privacy was violated. The moral of this story is never trust the insurance companies to do the right thing when you are injured!
In an article in the July 2007 Journal of American Association For Justice David J. Berardinelli sets out the history of how from 1995 to 2007 Allstate has gone from "Good Hands to Boxing Gloves."
An insurer in the grip of greed
By redesigning Allstate’s claims-handling system, a consulting firm realigned the insurer’s goals to satisfy shareholders at policyholders’ expense. Here’s an inside look at how the company abandoned its obligations to its customers.
David J. Berardinelli
On June 1, 2006, Allstate Corp. Chairman and CEO Ed Liddy made a financial presentation at the annual Sanford Bernstein & Co. Strategic Decisions Conference. Speaking to an audience packed with CEOs and executives from many of the world’s largest companies, Liddy proudly extolled Allstate’s phenomenal financial performance since 1995, when it installed a new claims-handling system called “Claims Core Process Redesign” (CCPR).
This leap in profitability was all the more remarkable as it occurred during an unmatched parade of natural catastrophes that should have sent Allstate’s profits plummeting. The CCPR system Liddy bragged about was designed by a company that many in his audience would agree was the world’s most powerful corporate consultant—McKinsey & Co.
One of Liddy’s presentation slides, entitled “Building a Competitive Advantage through Claims,” perfectly summed up McKinsey’s design philosophy for CCPR. As the system’s biggest beneficiary, Liddy could personally testify to the effectiveness of McKinsey’s plan to build profits through claims. Liddy was chief financial officer of Sears when it spun off Allstate in 1994. He went with Allstate then and quickly ascended to become its CEO in 1999. According to Securities and Exchange Commission filings, Liddy also amassed a personal fortune of over $150 million in stock, options, and incentive bonuses—all as a direct benefit of McKinsey’s redesign of the insurer’s claim system.
But calling in McKinsey to redesign Allstate’s claim system was not Liddy’s idea. It was the brainchild of Jerry Choate, the company’s first CEO following its spin-off. As president of Allstate’s important PP&C (personal property and casualty) business division in 1992, Choate hired McKinsey to help guide Allstate through the transition from a Sears subsidiary into a superstar performer in the insurance industry.
Choate took a hands-on approach to guiding the progress of McKinsey’s redesign project at Allstate, personally approving each phase, presentation, and proposal as it moved forward. For Choate, the benefit of McKinsey’s system was big and fast. Less than four years after CCPR was rolled out in 1995, he retired with a personal fortune in stock, options, and incentive bonuses estimated to be worth at least $53 million.
Under traditional principles of insurance law, insurers are supposed to give as much consideration to the interests of their policyholders as they do to their profits. McKinsey deliberately set out to introduce a new ethical paradigm.
In the mid-1990s, McKinsey partners were writing articles, books, and essays heavily promoting a new model for its corporate clients. According to McKinsey partners, the best example of this new corporate standard was its long-time client Enron. In the 1990s, McKinsey was a key architect of the strategic thinking that made Enron a Wall Street darling—and set it on the path to its own destruction.
A new model
Under McKinsey’s model, corporate performance and ethical conduct were both measured by only one standard—the interest of the shareholder. McKinsey preached to its clients that business systems and business rules that did not promote shareholder interests were bad and needed to be changed.
A series of more than 12,000 PowerPoint presentation slides that McKinsey created for a presentation to Allstate executives—which Allstate later produced under a temporary protective order in litigation1—show how McKinsey encouraged the insurer to secretly adopt a business strategy promoting the interests of its shareholders at the direct expense of its policyholders. In its initial CCPR presentation, McKinsey told Allstate’s senior managers what would be required of them for its CCPR system to succeed: “The senior management team views the [profit] improvement program as a top priority, with unanimity in their belief that change needs to occur. . . . They are willing to make fundamental changes in people, procedures, management systems, structure, etc., to ‘do whatever it takes’ [to increase profits and shareholder value].”2
McKinsey’s paradigm is alive and thriving at Allstate today. Its “shareholder first” business philosophy is probably best expressed in Allstate’s 2006 proxy statement:
Stock ownership requirement: Because we believe strongly in linking the interests of management with those of our shareholders, we first instituted stock ownership goals in 1996 for executives at the vice president level and above. These goals were increased in 2004 to require these executives to own, within five years of the date the executive position is assumed, common stock worth a multiple of base salary.3
Here is the ultimate example of McKinsey’s paradigm at work. Allstate CEOs are required to own company stock worth seven times their annual salary. Senior management executives are required to own Allstate stock worth four times their annual salary.
What’s wrong with McKinsey’s plan for the casualty insurance industry? The answer is: everything. Insurers are in business to make profits, but the fiduciary nature of the insurance contract prohibits insurers from “linking the interests of management with those of . . . shareholders”4 since the shareholders’ only interest is increasing profits—even at the direct expense of policyholders.
McKinsey’s introduction of its business paradigm into the casualty insurance industry was fundamentally wrong. This wrong was probably best expressed almost 30 years ago by the California Supreme Court in one of the nation’s landmark insurance cases:
The insurer’s obligations are . . . rooted in their status as purveyors of a vital service labeled quasi-public in nature. Suppliers of services affected with a public interest must take the public’s interest seriously, where necessary placing it before their interest in maximizing gains and limiting disbursements. . . . [A]s a supplier of a public service rather than a manufactured product, the obligations of insurers go beyond meeting reasonable expectations of coverage. The obligations of good faith and fair dealing encompass qualities of decency and humanity inherent in the responsibilities of a fiduciary. Insurers hold themselves out as fiduciaries, and with the public’s trust must go private responsibility consonant with that trust.5
Illicit profits through claims
In 2006, Liddy had good reason to extol Allstate’s post-CCPR financial performance. The company’s financial improvement was just as dramatic as his own rise in personal fortune. Allstate’s financial filings show that its total pretax operating income (excluding investment income) for the 10-year period before CCPR became fully operational (1986-1995) was $820 million—an average pretax operating income of $82 million a year.
In comparison, Allstate’s total pretax operating income for the 11 post-CCPR years (1996-2006) was $27.4 billion—an average pretax operating income of $2.5 billion per year. Compared with its pre-CCPR total operating income of $820 million, that’s an almost 3,335 percent increase in total operating income in the 11 years after implementing CCPR. That’s more than phenomenal—it’s downright unbelievable.
Putting this change into sports terms (on a much smaller percentage scale): It would be like a 10-year veteran of Major League Baseball who’d never hit more than 40 home runs a year suddenly putting on 30 pounds of muscle and hitting 80 home runs in the 11th year of his career. This just doesn’t happen—not unless there’s been some serious cheating with banned substances. It’s the same for the insurance industry. Operating income increases like the ones Allstate has experienced don’t just happen—not unless there’s been some serious cheating with unfair claims practices. McKinsey’s PowerPoint slides explain how and why the cheating occurred.
There’s really only one way McKinsey could manage such a miraculous turnaround—by dramatically reducing claim payments while keeping premiums at the same or higher levels. The McKinsey slides describe this process as the foundation of CCPR, calling it the “Zero-Sum Economic Game.”
McKinsey was blunt in stating the intent behind its CCPR design: “Our change goal is to redefine the game . . . to . . . radically alter our whole approach to the business of claims. . . .”6 Instead of basing CCPR on the traditional principles that restrained Allstate from solely promoting its shareholders’ interest, McKinsey substituted zero-sum game theory to allow Allstate to aggressively pursue increased profits at the direct expense of its policyholders.
This approach converted claims handling at Allstate into an economics game, a direct competition between Allstate and its policyholders. As one McKinsey slide puts it: “Improving Allstate’s casualty economics will have a negative economic impact on some medical providers, plaintiff attorneys, and claimants. . . . Zero-sum economic game—Allstate gains—Others must lose.”7
According to estimates in the McKinsey slides, the zero-sum game was intended to reduce claim payments by an average of 15 percent to 20 percent. Allstate’s annual reports confirm that its phenomenal growth in pretax operating income was driven by a dramatic decrease in average claim payments.
For example, McKinsey concentrated most heavily on private auto policies in designing CCPR (although it eventually applied CCPR across the board to all casualty coverages, including homeowner’s policies). In 1994, the year before CCPR was implemented, Allstate was paying out about 69 cents on claims for every premium dollar collected.8 According to the Wall Street Journal, Allstate’s claim payments for private passenger auto claims plunged to about 51.7 cents out of every premium dollar collected by 1998.9
According to the Consumer Federation of America, during the first three quarters of 2006, Allstate’s overall claim payments plunged to just 43.5 cents of every premium dollar collected—the lowest since 1987.10 That’s an additional 26.5 cents per premium dollar in “extra” profits for Allstate. As noted in the same article, Allstate’s substantial reduction in claim payments should have resulted in a substantial reduction in premiums, which are based on projected payments.11 But it hasn’t.
It is clear from the slides that both McKinsey and Allstate knew that designing a claims-handling system around a zero-sum game theory would violate existing insurance laws and constitute institutional bad faith. Hence, McKinsey repeatedly refers to the need to “modify bad-faith laws” and “modify the rules and regulations [governing insurance]” for CCPR to be effective.12
Abuse of the civil justice system
Although the protective order shielding the McKinsey slides has expired and Allstate has been ordered to turn the slides over to plaintiff counsel in bad-faith litigation, the company has refused to do so. (See sidebar on page 36.) It’s not surprising that Allstate would willingly commit contempt of court rather than produce these slides for public dissemination—especially considering the firestorm of litigation the company provoked after denying claims made by victims of hurricanes Katrina and Rita.
Aside from the public relations disaster that would result, there’s another reason Allstate isn’t likely to produce the McKinsey slides without a protective order that prevents public dissemination. The slides would explain to juries—particularly in Florida, Louisiana, and Mississippi—why Allstate is deliberately forcing thousands of innocent policyholders to litigate their legitimate homeowner claims rather than settling with them.
One of the most remarkable slides describes McKinsey’s “Good Hands or Boxing Gloves” strategy—and this may be the most damning CCPR slide McKinsey created.13 It illustrates how McKinsey applied its business paradigm to the handling of casualty insurance claims.
Under traditional insurance law, casualty insurers are required to pay legitimate claims promptly and fairly because they are bound to give equal consideration to the interests of the policyholder when handling claims. However, McKinsey’s paradigm required placing shareholder interests first, and paying legitimate claims promptly and fairly would likely increase loss payouts at the direct expense of shareholders. Thus, CCPR could not be designed to pay legitimate claims both promptly and fairly. To win the zero-sum economic game, McKinsey designed CCPR to pay legitimate claims promptly or fairly, but not both.
The “Good Hands or Boxing Gloves” slide shows how McKinsey intended to win the claims economic game in two phases that deliberately and illegally exploited the economic pressures placed on a policyholder suffering from financial loss. The first phase (Good Hands) required Allstate to change how it evaluated and negotiated claims; the second phase (Boxing Gloves) required it to change how it litigated claims.
The first phase involved arbitrarily lowering Allstate’s claims evaluations by using a computer program called Colossus, which was calibrated to produce evaluations at least 20 percent lower on average than Allstate’s pre-CCPR claim evaluations. Allstate would require its adjusters to make nonnegotiable, take-it-or-leave-it settlement offers based on these artificially low settlement evaluations.
McKinsey estimated that, when confronted with the threat of a substantial delay in getting any benefits at all, 90 percent of policyholders would succumb within six months to the economic pressures caused by their loss and give up without a fight, accepting the low offers. These policyholders would get “prompt” payment—the Good Hands treatment.
The second, Boxing Gloves, phase involved a plan to deliberately abuse the civil justice system as a weapon of attrition against the estimated 10 percent of policyholders who would refuse to accept Allstate’s reduced benefits. These policyholders would be driven into the “kill box”14 of McKinsey’s zero-sum economic game—the American civil justice system.
In designing CCPR, McKinsey understood from its work with other insurance companies like State Farm that “aggressive litigation yields positive results.”15 One of McKinsey’s major findings was that “Allstate doesn’t aggressively use litigation to drive down values in the market.”16 Thus, a key part of McKinsey’s Boxing Gloves strategy would be to actively incite “significantly higher levels of litigation.”17
In other words, a key part of Allstate’s CCPR system involved deliberately inciting the filing of thousands of frivolous lawsuits—frivolous because they would arise not out of a legitimate dispute over claim values but because of a tactical strategy designed to encourage needless litigation. Allstate’s goal: to delay or diminish payment of full value for legitimate claims.
The Boxing Gloves strategy aimed to make litigating claims against Allstate so time-consuming and expensive that any victory by the policyholder would be purely Pyrrhic. McKinsey believed that most policyholders and their attorneys would refuse to endure the expense and delay of litigation if they knew that Allstate had made an institutional decision to try every disputed claim to verdict—no matter the amount in controversy and regardless of the cost to Allstate of doing so.
Fewer policyholders and lawyers are now willing to litigate against Allstate. Their only other choice is to accept about 40 cents on the dollar for legitimate claims. The result: Allstate’s shareholders win and policyholders lose. That’s what “building a competitive advantage through claims” is all about.
David J. Berardinelli, author of From Good Hands to Boxing Gloves (Trial Guides 2006), practices law in Santa Fe, New Mexico. © 2007, David J. Berardinelli
A report by the Insurance Information Institute says the property/casualty industry's profits during the first nine months of 2006 increased by 50.1 percent over the same period in 2005, from $29.7 billion to $44.9 billion. See Robert P. Hartwig, CPCU, "2006 - First Nine Months Results," http://www.iii.org/industry/financials/2006firstninemonths. The report also concludes that the insurance industry's profitability during that period, if maintained, would lead insurers to their best financial performance in nearly 20 years.
Tell your families, friends, staff and clients about this valuable new state program - the Florida Department of Highway Safety and Motor Vehicles has instituted an emergency contact information system that allows anyone with a valid Florida Driver's License or Florida Identification Card to post emergency contact information online that will then be available to law enforcement personnel, giving them immediate access to the information and potentially saving crucial time if ever it becomes necessary to contact family members or other loved ones in case of an emergency. Individuals can post emergency contact information online at: http://www.hsmv.state.fl.us/.
The site allows posting of information for a primary and a secondary emergency contact, and includes fields for each contact's name, address, relationship, and three phone numbers (work, home and cell). As with other personal information related to an individual's driver's license, the information is subject to the Driver Privacy Protection Act. Thanks to AFTL Past President Wayne Hogan for bringing this new program to our attention.
JANE IZQUIERDO,
Appellant,
v.
GYROSCOPE, INC., etc.,
Appellee.
No. 4D05-4599
[January 10, 2007]
WARNER, J.
After the jury returned a verdict finding no negligence on the part of a restaurant in the appellant’s action for damages for a slip and fall, the appellant sought a new trial. She claimed that the verdict was against the manifest weight of the evidence. The trial court denied the motion. Because the uncontroverted evidence shows at least some negligence on the part of the restaurant, we conclude that the trial court abused its discretion in denying the motion and reverse.
The appellant, Jane Izquierdo, filed a personal injury action alleging negligence by the defendant, Gyroscope, Inc., which owned and operated Giorgio’s Grill. She alleges that she slipped and fell on a wet napkin, breaking her leg. The defendant denied any negligence.
At trial, the jury learned that Giorgio’s was a restaurant which became a night club after certain hours. It had a tradition of both the wait staff and customers throwing paper napkins into the air as the music played throughout the evening. The napkins would land on the floor of the restaurant. No one would pick them up, although when they became too deep, customers would push them to the side. Because drinks were occasionally spilled, sometimes the napkins would be wet.
Both Izquierdo and her fiancé testified that they went to the restaurant to meet a friend around midnight on the night of the incident. They had been to Giorgio’s about five or six times before and knew that it became a night club after certain hours. They also knew of the napkin-throwing tradition and never thought it could be dangerous.
Upon arriving, they sat down at one of the tables in the back of the club. The restaurant was relatively crowded. Izquierdo had one drink and then went to the restroom. On the way back from the restroom she slipped and fell, breaking her leg in the process. After she was on the ground, she observed that the floor was wet and napkins were on her shoes. Her fiancé heard her scream, came running, and also observed the wet napkins on her shoes. While she did not know exactly how she slipped, she knew she slipped on something, and assumed that she slipped on the napkins. Her clothes were wet from being on the ground.
Izquierdo was in great pain and had to be carried out of the restaurant where she waited for an ambulance. She was transported to the hospital and had surgery the next day to repair her broken leg. She relied on a wheelchair for three months and continued to have pain and limitations afterward.
The manager of Giorgio’s also testified, although he was not present at the time of the incident. He was well aware of the custom of throwing napkins in the air and agreed that leaving wet napkins on the floor was a hazardous condition. He admitted that no one cleans up the napkins until after closing, and in the meantime the napkins are simply pushed out of the way. In all the years the napkin-throwing tradition has existed, no one has ever fallen on them before Izquierdo’s fall.
In closing argument, the defendant’s attorney made two points regarding the restaurant’s liability. First, he noted that Izquierdo did not know exactly how she fell. Second, he argued comparative negligence, noting that both Izquierdo and her fiancé knew about the napkin-throwing tradition and had visited the restaurant on many occasions.
The jury returned a verdict for the defendant, finding that there was no negligence on its part. The court entered final judgment, and Izquierdo moved for a new trial, claiming that the verdict was against the manifest weight of the evidence. The trial court denied the motion, and Izquierdo appeals, claiming that the court erred by denying her motion for new trial.
The appropriate standard of review applied to a trial court’s denial of a motion for a new trial is whether the trial court abused its discretion. See Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999). Brown articulates the test for determining whether the trial judge committed an abuse of discretion and provides that:
[A]n appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.
Id. at 497-98. Furthermore, in Dewitt v. Maruhachi Ceramics of America, Inc., 770 So. 2d 709, 711 (Fla. 5th DCA 2000), the Fifth District explained that:
The question for an appellate court is not whether or not the evidence was contrary to the manifest weight of the evidence presented below. Indeed that is the question addressed to the trial court on motion for a new trial. Rather, the appellate court is limited to considering whether or not the trial court abused its discretion in denying a new trial. In order for [the appellate court] to reach that conclusion, the evidence must be clear and obvious, and not conflicting . . . .
(citations and footnote omitted). See also K-Mart Corp. v. Collins, 707 So. 2d 753, 755 (Fla. 2d DCA 1998) (recognizing that where there is conflicting evidence, the weight to be given that evidence is within the province of the jury).
Despite this deferential standard, “an appellate court should reverse a jury verdict when there is no rational basis in the evidence to support the verdict of the jury.” Sifford v. Trans Air, Inc., 492 So. 2d 407, 408 (Fla. 4th DCA 1986). “[W]here the testimony on the pivotal issues of fact is not contradicted or impeached in any respect, and no conflicting evidence is introduced, these statements of fact can not be wholly disregarded or arbitrarily rejected.” Merrill Stevens Dry Dock Co. v. G & J Invs. Corp., Inc., 506 So. 2d 30, 32 (Fla. 3d DCA 1987).
We conclude that the trial court abused its discretion in denying the motion for new trial as the verdict finding no negligence on the part of the defendant is contrary to the undisputed evidence in the case. The testimony regarding negligence from both Izquierdo and her fiancé was not conflicting nor was it impeached. More importantly, the manager of the restaurant admitted that permitting the wet napkins to remain on the floor was a hazardous condition. Although the defendant argued in closing that Izquierdo did not know how she fell, the circumstantial evidence included her testimony that she slipped, went down on a wet floor, and found napkins on her shoes. The inference that the wet napkins on the floor caused her fall clearly was the only reasonable inference which could be drawn from the facts presented. The defendant offered no contrary interpretation consistent with the facts proved.
We are further persuaded that the evidence of the defendant’s negligence was clear and obvious by a reading of section 768.0710(1), Florida Statutes (2004), which provides:
The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.
This statute was enacted after Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 331 (Fla. 2001), in which our supreme court held “that the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition . . . .” Thus, both the supreme court and the legislature agree that a business owner owes a duty to its invitees to make reasonable efforts to keep transitory foreign substances off the floor, which would include napkins. Failure to do so would be negligence.
Further, although Giorgio’s claimed that the napkin-throwing was known by Izquierdo and the existence of napkins on the floor was obvious, this would merely discharge the landowner’s duty to warn. It does not discharge the landowner’s duty to maintain the premises in a reasonably safe condition. Thus, whether the danger was open and obvious is an issue of comparative negligence. See Fenster v. Publix Supermarkets, Inc., 785 So. 2d 737, 739 (Fla. 4th DCA 2001) (“A plaintiff’s knowledge of a dangerous condition does not negate a defendant’s potential liability for negligently permitting the dangerous condition to exist; it simply raises the issue of comparative negligence and precludes summary judgment.”).
We are also guided by our decision in Christiana v. White, 346 So. 2d 1036 (Fla. 4th DCA 1977), which involved an intersectional automobile collision where the defendant made a left turn after the left turn arrow had turned red. The plaintiff traveling in the opposite direction swerved to miss the defendant but managed to run into a concrete box. The jury returned a verdict for the defendant. Our court reversed the denial of the motion for new trial, stating:
[T]his case was tried on comparative negligence. By its verdict for the defendant-appellee herein, the jury necessarily concluded that defendant was without negligence which was a legal cause of the accident and that plaintiff was 100% at fault.
The record in the instant cause clearly shows some negligence on the part of appellee. We find that this jury verdict was against the manifest weight of the evidence and that the trial judge abused his discretion in denying appellant’s motion for a new trial.
Id. at 1037. Likewise, the record in the present case shows at least some negligence on the part of the defendant, even though a jury could find that Izquierdo was negligent herself. The jury’s verdict finding no negligence on the defendant’s part is contrary to the manifest weight of the evidence, and the trial court abused its discretion in denying the motion for new trial. We therefore reverse and remand for a new trial.
STEVENSON, C.J., and TAYLOR, J., concur.
PRODUCTS LIABILITY
United States District Court Denies Class Certification in Multidistrict Vioxx Litigation
Jeremy Taylor - Senior Attorney
Merck & Company ("Merck") recalled its prescription pain reliever Vioxx from the market on September 30, 2004, when data from a clinical trial indicated a strong correlation between the use of Vioxx and an increased risk of cardiovascular thrombotic events, such as myocardial infarctions and ischemic strokes. Vioxx had been manufactured and sold in the United States by Merck from the date of its approval by the Food and Drug Administration ("FDA") in May 1999, until its withdrawal from the market. It has been estimated that 105 million prescriptions for Vioxx were written during the period of the drug's sale in the United States. Based upon this statistic, it has been concluded that approximately 20 million people took Vioxx in this country.
Following Merck's withdrawal of the drug, thousands of individual lawsuits, and numerous class actions, have been filed against Merck in state and federal courts across the nation. In February 2005, the Judicial Panel on Multidistrict Litigation certified the federal Vioxx lawsuits for multidistrict-litigation status and transferred all such cases to the United States District Court for the Eastern District of Louisiana for pretrial proceedings. After consolidation, the Plaintiffs' Steering Committee ("PSC") moved to certify a nationwide class action under Fed. R. Civ. P. 23(b)(3), which permits the certification of an action as a class action if questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The PSC represented two New Jersey residents as class representatives. On November 22, 2006, the district court denied the motion for class certification. See In re Vioxx Products Liability Litigation, 2006 WL 3391432 (E.D. La. Nov. 22, 2006) [http://vioxx.laed.uscourts.gov/Orders/o&r112206.pdf]. The case presents not only an important procedural milestone in the Vioxx litigation, but also an illuminating analysis of the interaction between choice-of-law and class-action jurisprudence.
[For a more detailed analysis of the case, send an e-mail request to research@nlrg.com, or call 1-800-727-6574, and request Vioxx Product Liability Update.]
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Most drivers never think about the actual safety of the road on which they drive. Unfortunately, that road and the design of it can be highly dangerous. Our firm has represented two families that suffered severe injuries and death as a result of our unsafe roads. In Hialeah, a mother and wife lost control of her car because of a dropoff between the road and shoulder. She and two of her children died. In Broward county, three brothers were traveling north on I-95 when their Volkswagon left the road and the wheels dug into the soft sandy shoulder, turned over and hit the concrete bridge support. Two of the brother were paralyzed.
In two recent cases outside of FLorida a school bus turned over because of guardrails on the shoulder. One child suffered brain damage. In Pennsylvania, a lady lost control of her car because of a drop-off between the road and shoulder, as a result of the accident she was paralyzed.
Nobbe v. Macoupin Co. Contracting Inc., Ill. Montgomery Co. 4th Judicial Cir., No. 2005 L 32, Aug. 15, 2006.
Nobbe 12, was riding in a school bus when the driver veered onto the shoulder of the road. The bus became entangled in guardrails lying along the shoulder and rolled over. Nobbe suffered a brain injury resulting in lost functional capacity and limited mobility. He requires permanent 24-hour care. Nobbe incurred about $1.21 million in past medical expenses and faces an estimated $27.24 million in future medical costs. His future lost income is estimated at $4.18 milion.
Nobbe’s parents, on his behalf, sued two contracting companies that left the unerected guardrails lying on the side of the road. Suit alleged defendants violated industry standards and guidelines by negligently leaving the guardrails lying on the shoulder without taking precautionary measures. Plaintiffs claimed the guardrails prevented the bus driver from being able to regain the road after veering onto the shoulder.
Defendants argued the bus drive was contributorily negligent for steering the bus onto the shoulder.
The parties settled before trial for $2.7 million.
Plaintiffs’ experts were Robert Eilers, life-care and future management planning, Hinsdale, Ill.; Charles Linke, economics, Champaign, Ill.; and Wesley Grimes, accident reconstruction, Mesa, Ariz.
Houghtaling v. Hanson Aggregates Pa. Inc., Pa., Luzerne Co. Com. Pleas, No. 9803-2005, June 21, 2006.
Houghtaling, 58, was driving on a rural road when her car’s passenger side tires left the road and dropped six inches to the dirt shoulder. Hoghtaling over-steered the car in an attempt to get the tires back on the roadway, and the vehicle re-entered the roadway, yawed, and then struck two trees on the roadside. Houghtaling sustained multiple spinal and rib fractures and now suffers from incomplete quadriplegia. She underwent two spinal surgeries and incurred between $500,000 and $600,000 in past medical expenses. Her future medical costs and life-care plan are estimated at $9.92 million. Houghtaling had run a child-care center but is now able to work there only part-time, volunteer basis. She did not claim lost income.
Houghtaling sued the company that contracted with the state to pave and shoulder several roads in the area. Plaintiff alleged defendant failed to timely shoulder the road after repaving it or warn traffic that there was a drop-off of more than four inches along the side of the road. Plaintiff claims defendant’s failure to shoulder the road within seven days of its repaving violated state transportation department rules.
Defendant acknowledged that the steep drop-off was dangerous to drivers but claimed it did not cause the incident in question. Defendant also contended plaintiff was speeding.
The parties reached a mediated settlement before trial for $14.5 million.
Plaintiff’s experts included Scott K. Epstein, physical medicine and rehabilitation, Honesdale, Pa.; Robert D. Voogt, life-care planning, Virginia Beach, Va.; Walter P. Kilareski, accident reconstruction, State College, Pa.; Cloyce Darnell, engineering, Shalimar, Fla.; and Guy W. Fried, physical medicine, rehabilitation, and spinal cord injury medicine, Philadelphia, Pa.
Defendant’s expert witnesses were Richard Bonfiglio, physical medicine and rehabilitation, Murraysville, Pa.; Steven C. Batterman, accident reconstruction, Cherry Hill, N.J.; and David L. Crawford, life-care planning, Philadelphia, Pa.
Our Florida Legislature did not pass any laws regarding Florida's NoFault Automobile insurance (P.I.P.). At the present time the No-Fault law will expire in October of 2007.
It appears that as of October of 2007 there will be no requirement to carry any type of automobile insurance after October. That will mean there will be no mandatory liability insurance (pay for pain, suffering, disability, medical bills and wages) and no "No-Fault" (pays 80% of medical bills and 60% of lost wages up to $10,000.00). Based on the past statistics about 35-50% of our vehicles will be uninsured!
What does the expiration of the mandatory automobile insurance ment to you? It menas that there is a 50-50 chance that you will be injured in an accident and you will not be able to collect any money for your pain, aggravation and lost money. You will not be able to collect if you suffer fractures, are paralyzed or killed.
What should or can you do? The first thing you should do is BUY UNINSURED MOTORIST COVERAGE on your own cars!! This will protect you and your family.
The second thing you should do is call, email, and write your state senators and representatives and tell them that you want mandatory LIABILITY AUTOMOBILE INSURANCE with limits of $25,000/$50,000.
The Miami Herald had an article in the Sunday, May 27th, 2007 paper which summarized the arguments for and against No Fault insurance. The article follows:
Auto insurance requirements are up in the air
What kind of car insurance will be mandated when the no-fault law expires in October depends on whom you ask.
BY BEATRICE E. GARCIA
bgarcia@MiamiHerald.com
If lawmakers don't take action before the state's no-fault law expires in October, the courts could well decide how much and what kind of auto insurance coverage Florida drivers will have to buy.
Uncertainty reigns, as insurers, regulators and legislative staffers trying to figure out what life on the road without no-fault means are offering very different interpretations.
Some, including the state agency that enforces the no-fault law, believe no auto insurance coverage would be required at all.
Others, including some insurers, say drivers will still have to buy property damage liability coverage.
It's also not clear whether insurers will allow drivers who already have no-fault benefits to keep them as long as their policy remains in force.
And, losing the law would eliminate the requirement that insurers immediately report auto policy cancellations to the state. That, in turn, means the Department of Highway Safety and Motor Vehicles will not be able to move quickly to suspend the licenses of drivers who are going bare.
As of now, the no-fault law, which requires drivers to purchase $10,000 in personal injury protection -- or, PIP -- and another $10,000 in property damage liability, will be history after Oct. 1.
It's the Department of Highway Safety and Motor Vehicles -- which enforces those insurance requirements -- that believes no no-fault means no mandatory insurance coverage.
INSURERS' POSITION
Insurers such as State Farm Insurance argue differently. In a six-page opinion, State Farm lobbyist Mark Delegal says a 'financial responsibility requirement' contained in a separate state statute applies to all auto owners in Florida. This requirement says that a driver must be able to cover property damage up to $10,000 and up $30,000 per accident in combined property damage and liability.
And, Delegal says, a different statute requires owners to show proof of insurance when they register their cars.
But the motor vehicles department has said it believes the financial responsibility requirement applies only to those with DUI convictions, judgments stemming from accidents and numerous traffic violations. The agency says there is no requirement the average driver show proof he or she can meet that responsibility.
Paul Jess, a lobbyist for the Florida Justice Association, which represents the trial attorneys, said he can see it both ways. He said drivers can meet the financial liability requirement by purchasing liability insurance, by posting a bond or by self-insuring.
LEGAL PERSPECTIVE
Attorneys say the difference of opinion depends on whether you believe the financial responsibility statute, which refers to the no-fault law, is actually linked with the law so that if no-fault disappears so does the responsibility requirements.
'Clearly, there is a difference of opinion that will probably result in more litigation,' said Cris E. Boyar, an attorney in Margate who handles auto accident cases.
The Office of Insurance Regulation said it's continuing to study this issue.
In an e-mail to The Miami Herald, the OIR said it would likely require legislative action to mandate insurance coverage.
One key provision in the no-fault law that will disappear is the requirement for insurers to report to DHSMV when an auto policy is canceled or payments lapse. Based on this information, the agency will suspend a driver's license until the insurance is reinstated.
'The state will be losing a key enforcement mechanism,' said Brian Deffenbaugh, staff director for the Senate Banking and Insurance Committee.
For the time being, there's no word on whether lawmakers will take up auto insurance in the special session.
The party line came from Gov. Charlie Crist at a bill signing in Hollywood Thursday: ``They've got to come to consensus. If they can do that, we can maybe get it in there.'
So far, there's no consensus.
The Florida Legislature has failed the citizens of Florida. They have taken away the mandatory NoFault/P.I.P. Automobile Insurance which at least paid $10,000.00 in medical bills and lost wages. They did not replace it with any mandatory insurance. The effect of this will be that after October 1st, 2007 many maybe 50% of the people who have automobile accidents in Florida will not have any place to collect for their property damage, medical bills, lost wages or pain and suffering.
This action by the Florida Legislature amounts to gross negligence. They all should be voted out of office!
LEGISLATURE
Will auto insurance become optional?
When the state's controversial no-fault law expires in October, there may also be no requirement for drivers to carry insurance.
BY BEATRICE E. GARCIA
bgarcia@MiamiHerald.com
After Oct. 1, Florida drivers will no longer be required to carry auto insurance.
That's the unintended consequence of lawmakers' inaction during the regular legislative session that ended two weeks ago.
The state's controversial no-fault law, which requires drivers to buy at least $10,000 in personal injury protection, or PIP, and $25,000 in property damage liability, is set to expire because lawmakers failed to extend it or replace it with another insurance requirement.
The Senate passed a bill that would have extended the no-fault law for four years, but it was never taken up in the House of Representatives. The House also didn't consider a bill replacing PIP with a form of mandatory medical payments coverage. That bill surfaced less than two weeks before the session ended.
While rumors continue in Tallahassee that legislators could take up the auto insurance issue during the June special session the governor has called to tackle property tax reform, there has been no action as yet to put the no-fault law on that agenda.
Calls and e-mails to Gov. Charlie Crist and House Speaker Marco Rubio weren't returned late Thursday.
Lawyers and doctors who work with accident victims are shocked at the prospect that lawmakers would let the no-fault law die without any action, especially since required insurance coverage would disappear.
'It will be like practicing in the wild, wild west,' said Dr. Stephen Greenberg, an orthopedic surgeon in Fort Lauderdale.
He said about 30 percent to 40 percent of the patients he now sees are accident victims, many of whom pay for his medical services with the PIP insurance required by the no-fault law.
DOCTORS RELUCTANT
Greenberg said he would be reluctant to be called to emergency room if he's not certain there's any insurance to cover medical bills.
Right now, proof a driver has purchased PIP and property damage coverage are required to register a vehicle in Florida. Drivers can be ticketed if they don't have insurance.
But in an e-mail sent to an insurance agent, an official with the Florida Department of Highway Safety and Motor Vehicles said once the no-fault law expires there would be ``no mandatory insurance for the purpose of obtaining a vehicle registration.'
Steven Fielder, a legislative affairs representative for the Department of Highway Safety and Motor Vehicles, was answering questions posed by Gunars Mansons, who runs American Insurance Agency in Fort Lauderdale. Mansons also heads a non-profit group of agents that work with non-standard auto insurers -- companies that generally provide insurance for drivers with bad credit or faulty driving records.
WHAT'S THE IMPACT?
Mansons and many others in the auto insurance market right now are trying to figure out the impact on drivers, agents and insurers after no-fault expires.
Mansons and others are worried about the consequences in South Florida where there are already a high number of drivers who carry only minimum coverages because that's all they can afford. They fear such drivers won't buy coverage at all if it isn't required. Many also don't have health insurance.
LESS EXPENSIVE?
With insurers such as State Farm and Allstate, which have lobbied hard to convince lawmakers that PIP is expensive and unneeded coverage, drivers can still buy medical payments coverage after Oct. 1. They contend this coverage would be less expensive than PIP.
But attorneys like Cris E. Boyar in Margate believe responsible drivers will end up paying far more for auto insurance as they add more coverage to protect themselves against uninsured drivers.
`THE LAW PROVIDES'
'If there's an accident now, the law provides $10,000 in medical expenses and lost wages. You don't need a lawyer to collect that,' said Boyar. ``But without PIP, most accident victims will need lawyers to collect and it would cost [them] 30 percent to 40 percent in contingency fees.'
PIP pays for 80 percent of medical bills up to $10,000 per driver and each passenger in a car involved in an accident. Property damage insurance covers damage to another person's home, car, or other property because of an accident. The coverage also provides lost wages and death benefits.
The Florida Veterinary Medical Association (FVMA) is advising pet owners to look out for their pets’ loss of appetite, listlessness, vomiting, diarrhea or unusual thirst in the wake of the national pet food recall this spring. The FVMA said if symptoms occur, pet owners should contact their family veterinarian and the Food and Drug Administration (FDA) at 866.337.6272 to report cases.
The FDA, which regulates the pet food industry, said there have been 16 pet deaths related to the wheat gluten recall since mid-March. Wheat gluten is a filler and binder in wet pet foods. The FDA has blocked imports of wheat gluten from the Chinese company implicated in the shipment of the contaminated pet food ingredient.
Menu Foods' President Paul Henderson said his company had received a number of owner complaints that dogs and cats were vomiting and suffering kidney failure after eating Menu Food products. Henderson estimated the 100-brand, pet food recall would cost Menu Foods between $26-34 million. Scienceevidence.com reported the FDA has received 12,000 complaints from pet owners about possible tainted food.
Menu Foods is the leading North American private-label/contract manufacturer of wet pet food products sold by supermarket retailers, merchandisers and pet specialty retailers. Formed in 1971, Menu Foods went public in 2002, trading on the Toronto Stock Exchange.
Soon after the Menu Foods recall, Nestle Purina PetCare Co. recalled all sizes and varieties of its Alpo Prime Cuts in Gravy wet dog food with specific date codes. Purina said a limited amount of the food contained wheat gluten from China. Menu Foods and the FDA have not officially identified the company that supplied the contaminated wheat gluten. Menu Foods’ recall included Iams and Eukanuba brands. To obtain a complete list of all recent pet food recalls, call 1.866.895.2708 or log on to www.fda.gov.
Numerous pet owners around the country have filed suit or are considering legal action against Menu Foods. Some seek class action status. One case pending in Florida is Troiano v. Menu Foods, Inc. No. 07-60428 (S.D. Fla.). Another is in Fort Lauderdale federal court, where an attorney is seeking class-action status in a case involving a Deerfield Beach woman who claimed she lost one cat and had another become ill after eating Iams pet food.
"I would love to find an attorney to take on this company," said Brenda Hitchcock of Tampa. Hitchcock said she has amassed $4,000 in veterinarian bills trying to save her 5-year-old cat, "S.S." Hitchcock said she saved two pouches of recalled food to prove her case, according to lawhawk.blogspot.com
According to the South Florida Sun Sentinel, Fort Lauderdale veterinarian Dr. Brandon Cox is worried about the unknown in the pet food contamination scare.
"There's just not enough information," Dr. Cox said.
Tainted pet food is lethal by targeting the kidneys of animals. After Menu Foods received complaints of pets dying from kidney failure in February, it began testing the food product on 40 to 50 animals, of which 15 percent died. To consider the impact of a 15 percent mortality rate, consider The Humane Society of the United States estimates there are 73 million dogs and 90 million cats in the country. If even a fraction of those ate the gravy-infused products made by Menu Foods, it could result in the deaths of tens or even hundreds of thousands of dogs and cats.
But it still isn’t proven that animal renal failure is tied to tainted food.
Dr. Cox advocated wet food for older cats since it is easier to eat and digest. But older animals are more prone to die from kidney failure. "We've done such a great job of caring for our pets that they're living long enough that they often tend to poop out from renal failure," she said. Cox said she hasn't seen a spike in the number of office visits, and most people seem to be taking a wait-and-see approach.
Dr. Sonja Olson of the Florida Veterinary Specialists & Cancer Treatment Center (FVS) in Tampa offers these tips on safely feeding your pet:
1. Avoid foods with wheat gluten. Many semi-moist and canned foods contain wheat gluten, while most dry foods do not. 2. Note the amount of sodium in the food, especially if a pet has a heart or kidney problem. Measure the percentage of protein vs. carbohydrates. 3. Apply the same principles to pet treats, which are high in sodium. 4. Home cooking is often easier for dogs than cats. Dogs are omnivores, making it easier to adapt to a change in diet. Cats, being 100% carnivorous, are fussy eaters. Read pet food cookbooks. Cats may need vitamins and supplements if eating home-cooked meals. Cats are sensitive to vitamin D deficiency. 5. Prescription diets have tighter guidelines and controls on their ingredients than other pet foods. One prescription diet has voluntarily been recalled, as a precaution, while experts determine if the product’s wheat gluten, which contains melamine, is contributing to the problem. 6. All natural foods are not necessarily better than others. 7. Ask your veterinarian, not a retail sales clerk, about the proper pet diet. Doctors know your pet’s history. Your doctor also will be attentive to pet food recalls.
Dr. Olsen’s associate at FVS, Dr. Neil Shaw, is available for interviews regarding the pet food recall by Menu Foods. Specifically, Dr. Shaw can speak to symptoms pet owners should monitor if they suspect a problem in their pet’s diet. Call 727.709.5252 to schedule a consultation.
McClatchy-Tribune News Service (MCT) reported in May veterinary toxicologists reported melamine-tainted wheat gluten, alone, shouldn’t be lethally toxic to animals. Cyanuric acid was also found in the tainted food. Tests revealed when this acid combines with melamine, crystals form in cat urine that also form in the urine of pets which became ill or died from tainted pet food.
People for the Ethical Treatment of Animals (PETA) summoned the FDA and pet food manufacturers to extend the March recall to foods that have received complaints, chemically test products and perform necropsies on animals involved. PETA also wants companies prosecuted if the FDA's probe uncovers wrongdoing.
FDA Spokeswoman Julie Zawisza said it is too early to determine what could have affected the food. Zawisza added even if wheat gluten is the source, “It doesn’t necessarily mean the wheat gluten, per se is the contaminant. It could be another substance associated with wheat gluten.”
Read More About Lawsuits on Rise After National Pet Food Contamination...
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