Premises Liability, Negligence
Craig v. RJD Enterprises, d/b/a McDonalds: Circuit Court, Sarasota County, December 2001. Mitchell Feldman, Esq. Represented the defense in a 5-day jury trial in Sarasota. A Defense Verdict was obtained. Pursuant to a proposal for settlement, the defense had the opportunity to seek recover of all fees and costs against the Plaintiff. Plaintiff Craig, an 83 year old woman, alleged to have tripped and fallen over a curb near the McDonalds restaurant drive through lane, sustaining multiple fractures and injures to her face, hands, back, knees, wrists, along with aggravation of her global arthritis. The Defense strategy was to prove to the jury that the Plaintiff was either lying, or simply confused about the facts of her fall. The defense case in chief swayed the jury to discount sympathy for the Plaintiff. Witnesses for the defense demonstrated for the jury on large-scale photographs of the scene of the incident, that the Plaintiff was actually far away from the curb when she stumbled and fell due to her age, preexisting medical conditions, and failing to use her cane. The Plaintiff sought a huge damage settlement and jury award. The defense discredited the Plaintiff's medical experts, and the Plaintiffs credibility was attacked and impeached through prior trip and falls and slip and falls, as well as through inconsistent statements about her health and medical condition.
Workers Compensation:
Belfleur v. Mignano Lawn Care Landscaping: Scott Silver, Esquire, represented Mignano Lawn Care Landscaping in this workers' compensation claim. The Claimant had instigated an altercation with his supervisor. The Claimant alleged that his supervisor shoved the Claimant, causing injuries to his chest and back. The Carrier denied the entire claim based upon the aggressor doctrine defense as well as the fact that the Claimant did not sustain any objective medical findings of injury related to the incident. The Judge of Compensation Claims entered a ruling finding that the claim was not compensable and, therefore, the Claimant was not entitled to any benefits pursuant to Chapter 440.
Bruins v. Southeastern Freight Lines and National Employee Care Systems: The claimant in this Palm Beach County workers compensation case sought several months of indemnity benefits after receiving treatment and care for an inguinal hernia he suffered on the job. The Employer/Carrier denied additionally indemnity passed the MMI date, especially TPD, as the claimant had been terminated by the employer for cause, and there was no medical evidence that he could not work.
Representing the Employer/Carrier, Aaron Bass successfully argued that section 440.09(1) Fla. Stat. required that the claimant prove within a reasonable degree of medical certainty that the major contributing cause of his need for indemnity benefits was his injury, and the objective medical evidence was required to meet his burden. The Judge of Compensation Claims found that there was no medical evidence to support the injured worker's claims that this pain alone would prevent him from working. Rather, all the authorized treating physicians in the case had testified that there was nothing preventing the claimant from working, medically. The Judge of Compensation Claims followed the reasoning of Mr. Bass' arguments in denying the benefits sought.
Ellis v. Palm Beach County School District: The claimant in this Palm Beach County workers compensation case sought compensability of the claimant's left knee condition as causally related to her industrial injury of December 10, 2002 and/or re-injury in physical therapy. The claimant did sustain compensable back and hip injuries in the accident. However, there were no complaints about the left knee pain for more than four months after the date of the injury. The injured worker's attorney argued the Employer/Carrier had not denied compensability of the knee within 120 days, and was now foreclosed from doing so pursuant to the 120-day rule.
Representing the Employer/Carrier, Aaron Bass successfully argued that the 120-day rule did not begin to run under the circumstances of the case until the claimant officially requested treatment for the injured body part via a petition for benefits. The judge of Compensation Claims followed the case law argued by Mr. Bass, and denied compensability of the alleged injured knee, as well as all benefits pertaining thereto.
Rowe v. Marriott: Judge of Compensation Claims, St. Petersburg, February 2001. Mitchell Feldman for the Employer Carrier. This case was tried before Judge Hafner, in St. Petersburg in February 2001. The Judge found in favor of the defense, the Employer/Carrier, denying compensability of seriously injured Claimant. The Defense strategy and legal argument was to present evidence that the Claimant was barred from coverage under Chapter 440 under the "going and coming rule" exclusion. The Claimant was on his way to a specially scheduled meeting a short time before he was normally scheduled to start his shift. Due to a lack of inconvenience and lack of credibility of the Claimant, JCC issued Order denying coverage for the accident and injuries. No benefits were provided to the Claimant.
Whidden v. Palm Beach County School District: Scott Silver, Esquire, represented the Palm Beach County school District in this workers' compensation claim. The Claimant was requesting an adjustment of average weekly wage to reflect payments the Claimant received during the 13-weeks prior to the date of accident. The paychecks reflected work that was performed before the 131-week period. The Employer took the position that the work would have to be performed during the 13-weeks in order to be considered "earned" during that time period. It is irrelevant that the Claimant simply received his paycheck reflecting those earnings during that time period. The Judge of Compensation Claims agreed with the Employer and denied the adjustment of average weekly wage. The Claimant has appealed the ruling which is currently pending before the First District of Appeal.
William Haskett v. Action Staffing/ACE USA: JCC Turnbull, Ft. Myers, December 2002. The Claimant alleged an injury to his low back while driving a tractor-trailer for the Employer. The claim was accepted as compensable, and medical care and indemnity benefits were provided. In 2001, the claimant, through his counsel, filed a Petition for Benefits requesting various benefits, inclusive of attendant care and PTD benefits, and the claim was assigned to defense counsel. The Tampa office handled this case.
Defense counsel advised the Employer/Carrier to deny further compensability of the claim. The defense position was based upon counsels analysis of the evidence and issues, and the likelihood of prevailing before the JCC on a total denial of further care due to a lack of causal relationship of the work accident still being the major contributing cause of the Claimants back condition need for medical treatment. The E/C also sought determination from the JCC that the Claimant committed fraud in violation of F.S. 440.105 due to Claimants lies in deposition, lies to the examining physicians, surveillance evidence and filling of frivolous Petitions. The JCC found zero credibility for the Claimant based upon multiple inconsistencies in his version of the accident, and false testimony at trial about the use of a motorcycle. Order denying and foreclosing Claimant to any benefits under Chapter 440 was issued by JCC.
Contract Dispute
Phyllis Heiffer v. IDS Telecom and IDS Long Distance: Handled by Mitchell Feldman, Esq. Broad and Cassell, counsel for Plaintiff Heiffer. Labor and Employment and contract dispute between former sales/national account manager and former employer. Venue: Broward County Florida. Presiding Judge: Streitfeld. Jury Trial, May June 2004, 4 days. Result: Directed Verdict for both parties on main contract claims litigated.
Summary of the facts and legal issues: Plaintiff Heiffer filed suit against her former employer, IDS, for breach of the employment agreement, violation of the Florida Whistleblower Statute, unpaid salaries and wages, intentional infliction of emotional distress. IDS counter-sued for breach of the employment agreement under several sections, civil theft of a computer, theft of trade secrets.
Heiffer dropped the first substantive part of her Whistleblower claim in the discovery phase, and then on the day of trial, voluntarily dismissed the remainder of the claim. IDS prevailed and was awarded attorneys fees and costs by the Court. IDS was further awarded attorneys fees and costs on the Breach of Contract claim filed by Heiffer after prevailing on directed verdict, and on Heiffers claims for unpaid salaries, wages and bonuses under Florida Statutes and the employment agreement.
Negligence, Breach of Contract, Breach of Fiduciary Duty
Bursten v. Eastpointe Condominium 1 Association, Inc.: Circuit Court, Palm Beach County. January, 2008. Scott A. Silver, Esq., and Francisco X. Novoa, Esq., of the firm's office represented the Defendant, Eastpointe Condominium 1 Association in a three week jury trial that resulted in a Defense Verdict on all counts. The Plaintiff, a penthouse unit owner, brought suit following the hurricanes of 2004 alleging that the defendant condominium association had negligently failed to maintain, repair or replace the roof and other related equipment on the 22 story building prior to the hurricane, allowing the hurricanes to tear off the roof membrane and other equipment which lead to the destruction of the building and the Plaintiff's property. Further allegations included the association's failure to properly and timely make repairs to the building and Plaintiff's unit following the destruction.
The firm presented evidence, including testimony of experts, to establish that proper care of the roof had been taken before and after the hurricanes and that there was no evidence to establish that any action or inaction of the association was the legal cause of the Plaintiff's damages. Further evidence was introduced to establish that all contractual and fiduciary duties were met by the condominium association. After nearly three weeks of trial, the jury returned a verdict for the Defendant association, agreeing that the association was not negligent, nor had the association breached any fiduciary duties or contractual obligations under the declaration of condominium.
Personal Injury
Crystal Chalich and Kristen Mann v. The Florida Department of Transportation: On October 3, 2007 in the Alachua County Circuit Court, lead counsel, Mitchell L. Feldman, of the Firm's Tampa and Ocala offices, along with second chair counsel, Benjamin Williams, successfully obtained a defense verdict in the case of Crystal Chalich and Kristen Mann v. The Florida Department of Transportation, stemming from an automobile accident in Gainesville, Florida on December 6, 2002. This case was a hard fought and heavily litigated battle, which had gone on for two years. Previously, the firm successfully obtained a Summary Judgment in favor of the Department of Transportation's immunity defense before Judge Roundtree. However, the case was reversed on appeal after the First District Court of Appeal found questions of fact existed in the record from Affidavits filed by the Plaintiffs' counsel. The case was remanded back to the Trial Court.
The facts in the case are as follows: at the intersection of State Road 26 and State Road 222 in Gainesville, at approximately 5:15 pm, a driver (deceased) Paul Angelico, while on SR 222, made a left-hand turn in the path of on-coming traffic on State Road 26, which caused him to be struck in a t-bone type fashion. Kristine Mann and Crystal Chalich, mother and daughter, were seated in the rear and both sustained injuries in the accident.
The Department of the Transportation, through its counsel, defended the claim on the basis that the deceased driver was 100% at fault in the accident as well as on sovereign immunity of the Department of Transportation. The complaint alleged a failure to warn and negligence in maintenance and creation of the road. The Department of Transportation's defenses included sovereign immunity, under which the DOT was immune to planning level functions such as the creation of the road, the installation of traffic lights and the speed limit determinations on the road. The Plaintiffs tried to carve out an exception to the sovereign immunity defense by proving that the intersection was a known trap. The Trial Court at Summary Judgment found that "readily apparent" conditions existed such that the Department of Transportation was immune. However, as noted above, the 1st DCA reversed and remanded.
