Panera Bread product lawsuit over dangerous Charged Lemonade

Panera Bread is facing two wrongful death lawsuits regarding its caffeinated lemonade drink, “Charged Lemonade.” 21-year-old Sarah Katz and 46-year-old Dennis Brown both died shortly after consuming the drink at different Panera locations.

Sarah’s family claimed she got no notice the lemonade qualified as an energy drink with as much caffeine as coffee. The University of Pennsylvania student had been diagnosed earlier with abnormal heart rhythms as a child, which may have contributed to her death.

Brown’s family claimed he was a member of the “sip club,” which allows unlimited drinks, and after drinking the charged lemonade at dinner near his job in Florida, he died while walking home. His family reported he had no history of energy drink usage.

A third lawsuit was filed last week, claiming that the same drink led to “permanent” heart problems for a woman in Rhode Island.

Responsibility of the Company

I would expect to feel safer eating at Panera Bread than drinking lemonade sold by a kid on the side of the road.

I saw a kid recently selling lemonade and said no. The danger with a homemade lemonade stand could include who knows how clean the kid was, or did he put anything else in the product? For example, what if you have a nut allergy, this kid might be eating peanuts while he made it, and somebody drinks this and goes into anaphylaxis.

But with Panera Bread, they should know better.

The same general product liability principles discussed above also apply to food and beverage products. Before selling a drink containing large quantities of caffeine, the company must first determine that the amount of caffeine is not unreasonably dangerous. If it is deemed potentially dangerous to some users, then the company also must warn of the potential danger. This is especially so in the case of a lemonade drink, in which the presence of caffeine is generally unexpected and which often appeals to young children.

Responsibility of the Manufacturer

When we buy a product, we expect it to work correctly and safely. Our law expects the same thing. Businesses have a duty to ensure that products are reasonably safe for intended use and foreseeable misuse. When a product is defective or unsafe and causes injury, the manufacturer, distributor, and retailer can all be held accountable.

One recent example is car airbags, which are designed to inflate at extreme speed and force to protect the occupants. When an airbag inflator sprays metal shrapnel through the car, injuring the occupants, the product is unreasonably dangerous. And those responsible for designing and selling the product can be held accountable.

It is important to note that a product is not defective and subject to product liability claims just because it is dangerous. Many products are inherently dangerous, including motor vehicles, power tools, appliances, and motorized equipment. Such products serve very useful purposes and are common in our everyday lives. Manufacturers have a duty to design such products to minimize the risk of injury and to warn users of known risks. This is why saws have finger guards, cars have seatbelts, and power tools have auto shut-off devices.

Can a manufacturer be held accountable?

As a part of this duty, manufacturers must also anticipate foreseeable misuses and take reasonable steps to protect against them. For example, it is foreseeable that a child might reach into a spinning clothes dryer. Therefore, newer dryers are designed to stop spinning when the door is opened. It is likewise foreseeable that someone might forget to turn off an iron after using it. And many newer models are now designed to shut off after a few minutes. Companies are also required to warn users of known dangers. This way, the user can weigh the risk before deciding whether or not to use the product and, if so, to use it safely.

A manufacturer or retailer generally cannot be held liable for injuries caused by unforeseeable product misuse. (i.e., using a push lawnmower to trim hedges). This is because companies that make and sell products are not responsible for all injuries caused by their products, but only for those caused by a defect or unreasonably safe design of the product. The end user also has a duty to use products carefully and reasonably. And is generally responsible for his or her injuries when misusing a product or using it in an unreasonable manner.

Technological advancements, government requirements, and market incentives – including litigation – have combined to make products much safer over the last several decades.

Litigation makes products safer.

When it comes to product safety, corporations often put profits before people. They cut corners by excluding safety features, hiding known dangers from regulators, and failing to warn consumers. Litigation often exposes these dangers and the decisions behind them. One well-known example is the Ford Pinto litigation in the 1970’s. Crash tests revealed a substantial risk of fire and explosion due to the design and placement of the fuel tank. Ford engineers determined they could significantly reduce that risk by making small design changes that would have cost less than $15 per car. In a rush to get the Pinto to the market at a low price, Ford deliberately chose not to make those changes, knowing the fuel tank design created a substantial risk of injury and death to occupants. That litigation helped accelerate automobile product safety standards.

Litigation makes products safer in another very important way. It incentivizes companies to put safety first. When companies know that selling a dangerous product can lead to liability, they are much more likely to design and manufacture their products to minimize the risk of harm. The products we all use today are much safer due largely to several decades of litigation exposing dangers and incentivizing safer designs.

I was recently selected to serve on the Palm Beach County Justice Association board, a non-profit organization promoting civil justice. I am proud to be connected to lawyers nationwide who fight in the courts for people injured due to corporate negligence.

Only through action and having regular citizen jurors decide can we ensure a safer world. Yes, there is nothing wrong with a company making a profit. We cannot allow the pursuit of profit to permit shortcuts that lead to death or catastrophic injury.

This could happen to anybody.

I visited a Panera recently, and like other stores, I let my 10-year-old get a drink. I did not check carefully, even knowing about this issue as I did. This was despite me knowing that he loves lemonade, so he dispensed some. We don’t let our children drink caffeine, so I don’t know how it would affect my children.

I can perfectly understand some parents may let kids go to Panera, and the charged lemonade could lead to issues with their kid, hopefully only including a restless night. Luckily, nothing happened, but I remembered my visit when I read about this third lawsuit.

If I, a lawyer who reads up on these sorts of cases, forgot and let my kid get lemonade, how many others could be doing the same?

What should I do when a product causes injury?

If something tragic happens and it could be a defective product, do not wait. Talk to somebody about the tragedy so they can undertake an immediate investigation.

Not every tragedy will result in a lawsuit. Yet every death or catastrophic injury deserves a proper investigation. Maybe the investigation will result in a recall. Maybe a warning label. Or maybe this is a tragedy you can prevent recurrence with a lawsuit.

In product liability cases, the question is whether the product was unreasonably designed or sold by a business that knew or should have known better.

First, notify the appropriate government agency that regulates the product. The U.S. Consumer Product Safety Commission oversees most consumer products sold in the U.S. The Food and Drug Administration oversees most food, beverage, and medications sold in the U.S. These agencies track injuries related to products and issue recalls, improve safety standards, and penalize violators.

Second, if possible, save the product that caused the injury. The appropriate agency may need it for inspection, which may be necessary evidence if you decide to pursue a claim.

Third, contact an attorney to discuss the situation and any legal remedies that may be available to you.

Authored by Aaron Clemens, Esq.

The post Panera Charged Lemonade: Can drink products be dangerous? appeared first on Romano Law Group.

Have you ever felt, without any specific reason, a compulsion to pick up your phone and launch a particular application?

Do you see your children doing this?

You’re not alone.

As of last October, 41 states and the District of Columbia, sued the parent company of Facebook, Instagram, Messenger and WhatsApp – Meta. They allege that the platforms were designed in ways to cause compulsory use. This is particularly true amongst teenagers, whose brains are not fully developed throughout adolescence – especially in the areas of temptation and reward.

The theory alleges that these platforms make money by encouraging users to return to the platforms and stay on them for longer periods of time thereby increasing revenue. And, in an effort to sustain or build on that revenue-flow, the platforms do things to maximize user engagement.

Screen addiction and dopamine

How do they cause users to stay engaged for longer? Part of the theory behind such addictive behavior is that “likes” on social media cause the brain to release dopamine. The teenagers then, over a period of time, begin to seek out “likes” for hits of dopamine and when teens try to stop using such applications, they experience withdrawal symptoms such as: anxiety, cravings, insomnia, and irritability. This “intermittent reinforcement” makes users believe that they can get a reward, similar to gambling at a casino.

Some people have reported that the act of scrolling is another example of a technological mechanism that increases the release of dopamine and its smoothness is self-reinforcing. This is different compared to switching tasks which requires the use of more energy and seems more clunky.  This goes to the design of the platform which compliments or affects a user’s experience – resulting in the user staying within a certain application for longer periods of time.

The same can be said of quick bite-sized videos. They’re quick hits of dopamine, and if the user doesn’t get that fix, they’re on to the next video. (And the next, and the next…).

Rewiring the brain

“The overuse of social media can actually rewire a young child or teen’s brain to constantly seek out immediate gratification, leading to obsessive, compulsive, and addictive behaviors,” according to Nancy DeAngelis, CRNP, Director of Behavioral Health at Jefferson Health.

Mental disorders are typically defined and classified according to the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). It is the guidelines that mental health professionals use to diagnose psychological disorders. Within the past 10 years, the contributors of the DSM began researching “internet gaming addiction” and more recently “internet addiction”. As of writing this, there’s no official diagnosis yet.

The Journal of the American Medical Association (JAMA) published a recent study that concluded that teens who use social media in excess of three times per day are at heightened risk for mental health issues such as: lowered self-esteem, ignoring real-life relationships, reduction of empathy, anxiety or depression, social anxiety disorder, Fear Of Missing Out (FOMO), and a decrease in physical activity.

Digital Detox

A ”Digital Detox” study came to a different conclusion claiming that Social Media is not addictive. According to this study, the researchers found that “a week of reduced social media usage neither increased nor decreased people’s desire to get back online.” And, that during a “digital detox”, people are happier. Because of this, it’s difficult to apply the language of addiction which has traditionally been reserved for substance abuse.

It should be noted that just because not all of the “addiction” language translates to social media and its affects, it does not mean that social media does not have an adverse impact on mental health. In fact, most all research supports a causal link between social media use and certain mental health issues. Additionally, some studies are beginning to look at individuals’ lack of agency over their own behavior as a result of social media use.

To help your child use social media responsibly, consider the following 15 suggestions

1. Manage screen time.
2. Set aside certain times solely for social media use.
3. Leave the phone or tablet behind and out of the bedroom.
4. Restrict phone use at the dinner table (this includes restaurants too).
5. As a parent, try to model responsible social media behavior.
6. Help to steer your child away from online conflicts.
7. Encourage them to see their friends and family in person, often.
8. Encourage them to engage in another hobby that doesn’t have such strong ties to social media.
9. Make sure your child talks to you (or a health care professional) in an effort to manage their emotions.
10. Talk to your child about what values and benefits they’re getting out of social media use including what a “like” means and how someone’s online presence is not necessarily an accurate portrayal the real world.
11. Use parental controls, screen-time monitoring and limit notifications.
12. Encourage a healthy-use of the internet for agreed-upon legitimate purposes.
13. Look for outward signs that might signal what your child is experiencing, emotionally.
14. Delete certain applications or use the web-based applications which dilutes the user experience.
15. Encourage the use of a “dumb” phone such as a flip phone or a phone that’s application-lite.

It’s important for you and your child the understand that no matter the amount of followers someone has, it is not a substitute for self-worth. No amount of social media can ever replace real-world interactions and experiences.

Authored by Corey Friedman, Esq.

The post Social Media Addiction and Teenagers appeared first on Romano Law Group.

Amusement parks offer an array of fun and thrilling rides. But before you enjoy them, you will often be asked to sign a liability waiver. Should you sign it?

Because of the transitory nature of amusement park rides, extra precautions have been enacted to ensure that they are constructed correctly with each new location. The Florida Department of Agriculture and Consumer Services is responsible for inspecting all amusement rides in Florida, except for entities with more than 1,000 employees and full-time inspectors on staff. FDACS categorizes these amusement rides as “temporary,” whereas rides not moved from location to location, such as those at large theme parks, are considered “permanent.” FDACS requires temporary rides to acquire a permit and an inspection to occur each time they are set up in a new location. Permanent rides only require a permit once a year with semi-annual inspections. Both types of rides are required to carry insurance.

Despite the elaborate procedures to ensure safety, accidents happen. Ride operators frequently require liability waivers to shield themselves from legal repercussions in case of injuries. Those waivers may require a signature from the person riding or an adult on behalf of a minor. In other circumstances, the waiver is printed on the back of a ticket, and the terms are inherently agreed to by riding the ride. No matter where it is, liability waivers often include blanket statements that excuse the company from responsibility if there is an injury. While waivers strive to exonerate the company from any responsibility, they do not absolve them from their duty of care towards guests.

A liability waiver is a contract.

A Florida contract is enforceable as long as the terms are clear and unambiguous and the terms are legal and not against public policy. Minors under the age of 18 are considered unable to have the full capacity to understand and agree to the terms of a contract, including that of a liability waiver.

If a minor can’t sign a contract, is the waiver valid?

Florida statutes provide for many activities that parents and guardians can do on a child’s behalf. One of those activities is signing a waiver on a child’s behalf. However, the language required is specific. For a waiver or release to be enforceable, at a minimum, the waiver/release must include the following statement in uppercase type that is at least 5 points larger than and clearly distinguishable from the rest of the text of the waiver or release:

NOTICE TO THE MINOR CHILD’S NATURAL GUARDIAN

READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT, EVEN IF (name of released party or parties) USES REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE CERTAIN DANGERS INHERENT IN THE

ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER FROM (name of released party or parties) IN A LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND (name of released party or parties) HAS THE RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU DO NOT SIGN THIS FORM.

A waiver is not always valid.

While waivers offer a degree of protection for businesses, they cannot absolve them from their duty of care. Waivers cannot be enforced to protect a business from gross negligence or intentional misconduct. The Florida Supreme Court found that the provider of an activity does not escape liability and leaves the parent burdened with an injured child, and if the parent cannot afford the burden, the burden is shifted to the State of Florida and its residents. The public interest that is associated with these liability waivers is too great. Suppose a minor is injured while participating in an activity that is considered to be outside of the scope of the liability waiver. In that case, the minor may still be able to hold the business or organization responsible.

What if someone is injured on a ride or in a theme park?

Understanding the enforceability of liability waivers, particularly regarding minors, is crucial for both operators and patrons. Consulting with an attorney is always advisable to navigate these intricate legal issues. If you have any questions about liability waivers or the rights of minors in Florida or have been injured by a theme park attraction, you should consult with an attorney.

Authored by Marjorie Levine, Esq.

The post Should I sign the liability waiver? appeared first on Romano Law Group.

A colleague told me about the unfolding tragedy at UNLV yesterday. They knew I graduated from the University of Nevada, Las Vegas. I attended from 1997 to 2001, and my friends from UNLV immediately started messaging each other. It was hard to fathom such violence at our school.

This new tragedy felt somehow worse than the 2017 shooting by Stephen Paddock at the Mandalay Bay Hotel during the Route 91 Harvest Music Festival. It hit closer to home for us. We all had attended classes and visited professors at the same spot where this disgruntled job applicant shot and killed three innocent people, injuring another.

I lay awake last night, wondering about my former professors. I felt helpless and wondered what could be done to prevent violent incidents like these.

This article discusses how the civil justice system can help victims of tragic, violent incidents like the UNLV shooting. I address how civil law and its monetary incentives may help prevent massive casualty events and individual violence.

What use is American civil law in a violent tragedy?

Large corporations spend a lot of energy and money promoting the idea of tort reform, suggesting that the civil law system gets abused by people who do not deserve it. Let me help you decide if this narrative is inaccurate, or whether there is an important role for our civil justice system.

To start, let me be clear: with any emerging tragedy, first responders are essential, especially law enforcement. Here, UNLV campus police reportedly stopped the shooter with deadly force.

There is no question that the civil law system works far more slowly than any emergency responders. There is also often a huge role for law enforcement if, for example, a criminal remains alive to be prosecuted.

Police at UNLV did precisely what was needed by charging towards danger. Police officers who rush towards an active shooter situation are heroes. These men and women deserve praise for saving lives while earning a salary many people would not take, let alone risking life and limb. It appears, in this case, that there will be no need for a criminal justice prosecution because the man who would be a defendant in a criminal case is now dead.

This matter does remind me of how things have changed. While at UNLV’s campus newspaper, my friends and I reported on campus police accusations of police brutality, including a violent drug raid on campus housing (netting no drugs) and accusations of racial profiling when my fraternity brother’s friend (a black student) was arrested by police while jogging on campus in the early morning hours. The campus did not have a good perception of police for some time, though that changed after police reforms by the campus administration, which we praised then.

While no civil lawsuits motivated the removal of the UNLV campus police chief in 2000, and the change took a drumbeat of negative attention, including coverage by local media, many times, such events spawn lawsuits aiming to secure those same systematic changes.

Civil lawsuits often arise in the aftermath of such tragedies.

Victims of tragedy will often seek answers. More importantly, they want solutions so nobody else will ever suffer what they went through.

Consider the lawsuits filed over the Feb. 14, 2018, mass shooting at Marjory Stoneman Douglas High School, where Nikolas Cruz opened fire, killing 17 people and wounding at least 17 more. In March of 2022, 40 civil cases, which included 16 of the 17 families of those killed, agreed to a settlement of $127.5 million for claims against the federal government who had been accused of failing to properly investigate pre-shooting tips, including how Cruz had amassed weapons and wanted to shoot up a school.

Other lawsuits included a suit against Scot Peterson, a sheriff’s deputy, for perceived flaws when he heard gunfire but failed to try to stop the attack. Andrew Pollock, whose daughter Meadow was killed, sued Mr. Peterson for negligence in failing to stop the attack. This lawsuit was dismissed.

Another well-known recent situation is the Uvalde Texas school shooting on May 24, 2022. The survivors filed a $27 billion class-action lawsuit against the police officers and others because, despite a reported 376 police officers from several agencies converging on the scene, the lawsuit claims police waited “seventy-seven minutes to accomplish what they were duty bound to expeditiously perform.”

Why would a victim or a survivor pursue such a lawsuit?

After talking to and representing people who have suffered significant tragedies or the loss of a loved one, we often hear these reasons to pursue a lawsuit:

• To do something productive or meaningful about the loss
• To hold the wrongdoer(s) accountable
• To prevent the same tragedy from happening again; and
• To compensate for the loss.

Such lawsuits may aim to create financial incentives to stop these situations as well as to compensate those injured for the value of their suffering. I will address each reason why a victim or a survivor might act.

Need to do something about tragic loss.

The level of helplessness I feel after hearing about a tragedy cannot compare to the helplessness of a loved one whose family member was killed or seriously injured. There are rare exceptions. At Uvalde, some police who responded had family members inside, yet even in that situation, they were apparently not allowed to charge in despite their requests. While some family members may be able to save or protect their children’s lives or protect them from more significant harm by rushing them to get medical care, many people find out well after the fact that their child has been killed.

Every parent’s goal is to prepare their child for the future, to protect and nurture them; it is an inborn instinct we all have. There can be nothing more emotional than finding out, no matter what you have done, that your child has been taken away from you. It is unnatural for children to die before their parents in any instance, and doubly tragic when they are very young and taken in a senseless, violent manner.

The drive to engage in litigation may often stem from the desire of the parent to do something, anything, about the tragedy.

Desire to hold wrongdoer(s) accountable.

If a person cannot bring back a child or loved one or solve their permanent injury, the next best thing is to hold the wrongdoer(s) accountable. All people also understand the need for justice, the feeling of making things right.

When you consider a major tragedy, there may be more than one blameworthy person. In a school shooting, the shooter is the first target for blame. Yet the shooter may not be the only person to try to hold accountable. For example, how about holding accountable:

• People who could have stopped the killing:
  • Friends/law enforcement warned of plans
  • Person/store who sold weapons and/or ammo negligently
  • Friend/family who negligently purchased a weapon for the shooter

• Others who caused injury during or after the tragedy:
  • School failed to follow safety protocol (leaving campus open)
  • First responders are not trained properly
  • Medical providers provide negligent care.

Now, this is a non-exhaustive list of potential targets. Furthermore, just because a parent wants to try to hold blameworthy people accountable, they are not the ones who will ultimately decide who is at fault, even if they raise the accusation. In our civil law system, ultimately, the judge and jury will decide who is accountable and to what extent. That is how the system is supposed to work.

Preventing a repeat of the tragedy through financial incentives.

At the end of the day, the main reason a person would bring such a lawsuit, and why our civil law system exists, is because this system takes a tragedy and an injured party. Holding a blameworthy person responsible shifts the responsibility for the injury onto the at-fault party. This creates financial incentives to avert future tragedies.

How would such a financial incentive work? For example, if it is shown that a gun store or a person was at fault for negligently selling or giving a deadly firearm to a shooter, which a jury concluded was the direct cause of this shooting, holding them accountable would give pause to any such person or gun store risking selling such a gun in the future. This is because any profitable business will try to avoid taking risks that can lead to financial ruin.

Similarly, what if the security at a school was lax? For example, the school had failed to spend enough money to replace broken locks. Well, while a school might lament the costs of improving their locks if a prior lawsuit has held a school responsible for failing to invest in fixing doors so that the next shooter cannot simply walk in and kill dozens of children.

Consider if law enforcement received dire warnings and failed to follow up, which led directly to many deaths. Well, while it may be expensive to follow up on every possible lead, if the financial incentives create a risk of paying a great deal of money if these leads are not followed up, and a tragedy ensues, maybe the governments will make sure they hire an additional officer to two to verify that each serious claim of a deadly school shooting is investigated properly in the future.

How do you get help if you have suffered a tragedy?

It is hard to say what sort of claim is best without looking at each case individually. There are also not always third parties to blame. This means serious injuries at work are not suitable for litigation. Hopefully, this article has provided some general insights so that you understand why we have a civil justice system, and how it can apply in tragic situations with catastrophic or deadly injuries.

Authored by Aaron Clemens, Esq.

The post UNLV Mass Shooting: How does civil law help victims to prevent a repeat? appeared first on Romano Law Group.

The open road, with its twists and turns, offers a sense of freedom and adventure. However, along with the joy of driving comes the responsibility of ensuring your safety and that of others. One crucial aspect of this responsibility is protecting yourself against unforeseen accidents involving uninsured motorists.

The Alarming Rise of Uninsured Motorists

In recent years, the number of uninsured motorists has been on the rise. This trend poses a serious threat to everyone on the road, as collisions involving uninsured motorists can result in financial and emotional hardships for the victims.

Financial Security in the Face of Unpredictability

When an uninsured motorist is at fault in an accident, they may lack the financial means to cover the damages they caused. Without uninsured motorist protection, if you are injured in an accident, you could find yourself stuck with medical bills even if the accident wasn’t your fault. Investing in this type of coverage acts as a financial safety net, ensuring that you won’t be left to bear the financial burden alone.

Protecting Your Well-Being and Peace of Mind

An accident involving an uninsured motorist can be a traumatic experience, both physically and emotionally. Beyond the immediate physical injuries, the stress of dealing with the aftermath can take a toll on your mental well-being. Uninsured motorist protection not only shields you financially but also provides peace of mind, allowing you to focus on your recovery rather than worrying about the financial fallout of the incident.

Closing the Gap in Coverage

While many motorists understand the importance of liability insurance, which covers damages caused to others, they may overlook the fact that it doesn’t protect them from uninsured or underinsured drivers. Uninsured motorist protection bridges this gap, offering coverage for bodily injury caused by drivers who lack adequate insurance.

Affordable and Accessible

Contrary to common misconceptions, uninsured motorist protection is often an affordable addition to your auto insurance policy. The peace of mind and protection it provides far outweigh the relatively minimal increase in premiums. In the grand scheme of things, this additional coverage is a small price to pay for the security it affords you and your loved ones.

In the complex web of auto insurance options, uninsured motorist protection stands out as a crucial safeguard against the uncertainties of the road. As the number of uninsured motorists continues to rise, investing in this coverage becomes not just a choice but a necessity. By doing so, you’re not only protecting your financial interests but also ensuring a smoother path to recovery in the event of an unfortunate collision with an uninsured driver. Prioritizing your safety on the road is not just responsible—it’s a decision that can make a world of difference when it matters most.

If you suffer an injury in a motor vehicle accident, Romano Law Group has a team of attorneys with decades of experience navigating complex insurance issues and we are ready to fight for you.

Authored by Jessica Latour, Esq.

The post Uninsured Motorist Protection (UM): The Hidden Hero in Auto Insurance appeared first on Romano Law Group.

Recently, the Court has approved a proposed settlement with Philips Respironics for economic loss claims for all plaintiffs who purchased, leased, rented, paid for, or were prescribed a Philips Recalled CPAP, Bi-Pap or Ventilator Device in the United States between 2008 and 2021.¹ The period to make a claim (“Claim Period”) opens on December 8, 2023, leaving claimants with a limited amount of time to take action to accept the settlement.

A Settlement Claims website has been established for ease of all claimants. The full Settlement as well as the Claims Portal are available here:

https://www.respironicscpap-elsettlement.com/https://www.respironicscpap-elsettlement.com/

A summary of the lengthy proposed Settlement reached between the parties includes:

What does the Settlement include?

This is a settlement of only the economic claims and not the personal injury claims, which may be settled at a later date and may provide a separate payment.

The Settlement includes payment of a minimum of $445 million into a Settlement Fund for device payments and return awards and up to an additional $15 million for device replacement awards. Awards range from $55.63-$1,552.25, based on the specific type of recalled device. The purchase, lease, or rental of multiple recalled devices qualifies the recipient to receive settlement payments.2

Additionally, the Settlement provides for $100 for each recalled device returned to Philips Respironics before the Claims Period Deadline (August 9, 2024). Returning multiple recalled devices will receive multiple return rewards. This amount is the same regardless of the type of machine in your possession. Philips will provide prepaid labels through a link that will be made available upon making a claim. Trilogy 100/200 device will require retrieval by a designated representative after a remanufactured device is installed.

Out-of-pocket expenses for a replacement device will also be considered for reimbursement under the Settlement if a comparable device was purchased on or after the date of the recall (June 14, 2021) and before September 7, 2023. However, a replacement award AND a return award for the same device is not permissible. The list of comparable devices is available on the Settlement website provided below.

Further, Philips will provide a two-year extended warranty on remanufactured devices. If elected, manufactured devices will be shipped directly to claimants as set up by a third party.

There are limitations on receipt of awards, including that if prior payment has been received for recalled devices through the Recall program with Philips, only the greater of that payment or the Settlement award, but not both, can be elected.

Excluded

¹ Excluded from the Settlement Class are: (a) the Philips Defendants and their employees, officers, and directors; (b) the Judge, mediator and Special Masters assigned to the case; (c) individuals who have already released the Released Claims against one or more of the Philips Defendants pursuant to individual settlements or other resolutions; (d) Durable Medical Equipment (“DME”) providers; (e) federal government payers; and (f) Settlement Class Counsel. ² See Settlement documents for full criteria to determine eligibility.

What will happen next?

The Economic Claims Settlement Counsel, the Settlement Administrator (a third-party company) or Philips should reach out to you directly with information as to how to proceed via a notice letter sent to your physical address or by email, if they are aware of your right to make a claim. If you receive a notice directed to you, it will contain a claim ID number for you to enter in order to make a claim. It will be the responsibility of each claimant to make their own claim, unless your attorney or representative has told you otherwise, even if you do not receive notice by the parties involved.

How do I make a claim?

YOU CANNOT MAKE A CLAIM UNTIL DECEMBER 8, 2023. Between December 8, 2023 and August 9, 2024, a Settlement Website with claims portal will be available to submit your claim at the link provided supra.

Once the claim portal is available, you will need to enter either a claim ID (if contacted directly) or the serial number of your recalled device, provide or confirm information/documentation and choose your preferred method of payment. There will be a tab for information about device replacement awards and a place to download and print device return labels.

How will I be compensated?

All funds should be paid directly to you through the method you select. The Court has appointed an Economic Claims Settlement Counsel that has negotiated this settlement with Philips. They will be compensated directly from Philips and will not be paid from your recovery.

Does this settlement mean the case is over?

By accepting this payment, you will release Philips and their successors and assigns from liability for the recalled machine itself. It will not resolve any claims for personal injury or medical monitoring. Those claims remain active before the Court.

YOU MUST ACT IMMEDIATELY UPON NOTICE THAT THE SETTLEMENT HAS BEEN APPROVED. The claim period begins on December 8, 2023 and runs until August 9, 2024. If you do not act within this time, you will lose any opportunity to claim these economic recoveries.

What if I have further questions?

Claims Counsel has created a Settlement Hotline that may provide you with the answers to your questions. At any time you can call 1-855-912-3432 to speak to a Settlement Specialist.

If you have specific questions regarding your device, including if you are waiting on a refurbished device or your device is having issues, you can call Philips Respironics Device Hotline at 833-262-1871 or through their website, http://www.philips.com/src/update/support).

The attorneys and staff at Romano Law Group are helping their clients with the Philips Respironics claim period process. If you believe that you are entitled to compensation under this Settlement, do not hesitate to reach out to determine how we can assist you.

Authored by Marjorie Levine, Esq.

The post Claim period for Philips Respironics CPAP, Bi-Pap and Ventilator settlement opens December 8th appeared first on Romano Law Group.

Catastrophic workplace injuries can be complex for many reasons. This article provides case examples to illustrate why consulting a skilled personal injury lawyer after a workplace accident can be important. Don’t miss out on compensation if you or a loved one experiences a workplace accident.

1. When there are significant injuries, it is essential to receive proper compensation.

If you are injured at work, you can and should seek workers’ compensation. However, pursuing a personal injury or third-party claim is the best way to secure sufficient compensation if a claim can be found.

Consider the employees working at the Florida International University pedestrian bridge when it collapsed in 2018. One worker was killed, and two were injured while servicing a newly installed bridge. Five bridge construction companies were sued for negligence, four days after the collapse.

Skilled lawyers explore all possible avenues of recovery for those killed or seriously injured in such cases. Third-party claims offer several benefits over workers’ compensation cases. One of the advantages is that third-party claims can be heard by a jury. Additionally, third-party claims enable the claimant to seek damages for pain, suffering, and loss of consortium, which is not possible in workers’ compensation or disability claims. These types of claims do not include compensation for pain and suffering, and a jury will not hear them.

2. Borrowed Servant Doctrine: Has the Employee Consented to the Assignment?

Nowadays, it is becoming increasingly rare for individuals to remain with one employer throughout their career, as more and more people choose to work in the gig economy. Some companies use a staffing company, professional employer organization (PEO), or temp agency to reduce employee costs. When employers leave human resources, including workers’ compensation, to a PEO or temp agency, it may bring immediate cost savings but also drawbacks.

Case Example:

I once handled a case involving a temp agency employee who had suffered severe traumatic brain injury. Besides a workers’ compensation claim to the PEO, we sued both the company that hired the temp worker and the location where he was injured in a third-party claim. The temp employee traveled in the second employer’s vehicle to another location where a different worker at the third company used a forklift to load the second employer’s vehicle. The forklift knocked something on the client’s head, causing a catastrophic workplace injury. Both companies tried to invoke workers’ compensation immunity.

What does the law say?

The Florida legislature has provided that help supply services companies (also known as temp agencies) are protected under Fla. Stat. §440.11(2), and so are employers who utilize them. Temp workers are often considered borrowed servants. Whether a person is considered a borrowed agent is typically a jury question. The temp agent must consent to employment to be considered a borrowed servant. Sometimes, a temp agency and company hiring them do not give sufficient information and may hide key pertinent information.

Furthermore, when a temp agency is involved, and sends an employee to yet another location to do work, there is always a question about that third company. What do they tell the temp agency, employer, or possible borrowed servant about what is required? Such a case may allege the company that hired the temp worker failed to train him on dangers inherent to the third business location. After all, if the company hired him as an actual employee and gave him suitable training, this injury could have been prevented.

When a temporary worker is sent to work at multiple locations, each business may have separate contractual obligations. This means that the second employer of the temp worker may have agreed to take responsibility for their workers, even if they are temporary. Therefore, if there is any negligence on the part of the third business, it may be traced back to the second employer who originally hired the temp worker.

Our goal in all cases is to secure fair compensation for the injured. Sadly, we cannot resurrect, we cannot regrow limbs, and we cannot erase anguish from a person’s memory. All that is left is pursuing monetary security to compensate for the injury and loss of past and future income. We also hope that securing significant recovery from catastrophic workplace injuries reduces the chances of recurrent injury. By holding the negligent responsible, we strive to prevent history from repeating itself.

3. The More Non-Employers Involved, The More Avenues for Recovery.

To be clear, an employee covered by workers’ compensation will find it difficult to blame their employer: they are typically stuck only pursuing workers’ compensation benefits. Yet, an employee visiting a separate business location or injured by a visitor may ensure their lawyer investigates a claim against the business visited when injured or any other entity causing such an injury.

In the negligent forklift use case illustrated above, the visited business may have failed to train an employee or warn the visitor, and such a failure could have resulted in our client getting struck in the head, drastically changing his life.

Other cases where an employee sued a non-employer in addition to workers’ compensation or disability benefits may include:

• Pedestrian worker lost limb in car crash, sued person causing car crash;
• A police officer on patrol injures back, requiring surgery, and sued homeowner who left an uncovered hole on the property;
• Security guard on patrol injured leg requiring surgery, sued private business after tripping over wire dangerously strung across patrol path;
• Small business employee required serious surgeries, sued private homeowner who insisted on a course of action that led to a severe fall and injury;
• Small business employee requiring surgery, sued a large non-profit entity for not warning about an unpermitted building, with hidden danger, that caused fall injury;
• Delivery company employee requiring several surgeries, sued person causing serious car crash;
• A government employee on the job required surgery sued a private business for owning car and employing driver who caused car crash.

These are only a few examples, and there are countless others. Anytime a person is injured, and multiple entities are to blame, there are potential claims to explore. When seriously injured, you owe it to yourself to investigate, immediately, to determine if there is a claim. After all, even if a valid claim might exist, delay could eliminate any such claim because important evidence could be lost.

While most people pursue workers’ compensation first, you are not required to pursue a claim or treat under workers’ compensation to sue a third party that is to blame. If the person who caused the injury has suitable insurance coverage and you have health insurance, you can go to your own doctors and not use workers’ compensation doctors. One benefit of workers’ compensation is that there is no reason to argue who is at fault; no-fault benefits are aimed to get you back to work. One drawback is that while your employer’s insurance pays your doctors, they also get to pick them. If you have the right health insurance, you can pick your own doctors.

4. Workers Can Still Bring Product Liability Cases.

If a product harms a consumer due to a defect, the manufacturer is liable under product liability laws. For more information, read our blog “What are my options after a catastrophic work injury?”.  You do not give up the right to bring a product liability case just because you get hurt on the job.

I have handled cases where an employee falls and suffers a catastrophic workplace injury because of safety equipment failure. When a crane malfunctions and causes harm to the operator or bystanders, or when faulty equipment results in electrocution, it can be considered a case. If an airbag fails or a poorly designed tire fails and catastrophic injury occurs, this claim can be pursued if you were working just the same as if you were on vacation.

In many cases, your employer may not even own the equipment you use; it is rented or provided by another company. There are possible claims against the company providing the equipment, and the manufacturer may be to blame. If equipment or a machine fails, this can result in a significant claim against the manufacturer, seller, or retailer, if that product caused a serious injury due to it being defective.

In such a case, your employer may gladly support your claim. After all, this defective product could have harmed other employees. Similarly, if a product’s manufacturer is to blame, workers’ compensation insurance would get help paying for your damages. Yes, we expect in a product case that the manufacturer will blame an employer or employee for misusing the product, but just because a defense is expected does not mean it will always prevail.

I recently handled a catastrophic workplace injury case where a young person, newly on the job, was assigned to use seriously dangerous industrial equipment. Tragically, this equipment destroyed the limb of this worker. An injury like this is the exact trauma where an injured person needs a lawyer to explore all options.

5. Intentional-Tort Exception: Virtually Certain to Cause Injury.

In limited circumstances, an employer can be held accountable for a catastrophic workplace injury to an employee under what is called an intentional tort, otherwise known as virtual certainty standard. The Florida Legislature passed this law in Fla. Stat. 440.11. This 2003 law provides that an employer can be sued if either:

1. The employer deliberately intended to injure the employee; or

2. 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, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

This is a high standard. It is exceptionally difficult to pursue such claims. Juries have awarded substantial recovery but been reversed lately. There is not zero hope for suing an employer, but such claims are very difficult. That is, if the employer properly secured workers’ compensation coverage.

6. Employer Refuses to Secure Workers’ Compensation Insurance or Deny’s Coverage

An employer who failed to properly secure workers’ compensation coverage is not immune. That is part of the grand bargain: an employer who secured workers’ compensation insurance cannot be sued because they paid for those no-fault benefits that should automatically help the worker. Yet if an employer fails to pay for workers’ compensation insurance or fails to cover this specific worker, that employer can be sued like any other intelligent person or business.

True, a company that failed to secure insurance may be too small to pay for a severe injury. They are also poorly run, as it can be a crime not to have workers’ compensation insurance or to misrepresent having it. Few legitimate employers fail to pay for coverage. Sometimes, a company may forget to pay or fail to list an employee as covered. Then, you can find a substantial avenue for recovery. This is why, after a significant injury, you should pursue all possible avenues for recovery. If the employer cuts a corner or makes a mistake, you can protect your own interests.

7. Construction Companies Can Receive Special Protections: Horizontal and Vertical Immunity

Florida has passed limitations for construction companies. Florida law provides both “vertical” and “horizontal” immunity to employers and many related entities.

Vertical Immunity

Basically, all subcontractors under a general contractor is considered an employee of not only the direct employer but also the general contractor at the top above them. This is called “vertical immunity.” It protects the general contractor, also known as the “statutory employer.” Again, this only applies if the contractor makes sure the subcontractor or themselves covers this employee with workers’ compensation insurance.

The idea of vertical immunity is that the general contractor has a contractual obligation, which is passed down to another to perform. An exception to vertical immunity may exist if there is no entity for which a contract exists, for example, if the worker is building a speculative or “spec” home that is not under contract.

Horizontal Immunity

There is also “horizontal immunity” which protects one subcontractor from being sued by employees of another subcontractor. In such a joint enterprise, where all are properly insured, the only exception is if the subcontractor’s gross negligence caused the injury.

Gross negligence is also a very high standard. It is a willful, wanton, and reckless disregard of the consequences of one’s actions or omissions. It is a lower standard than virtually certain, but still very hard to prove.

Exceptions to immunity exist. For instance, if a vendor or delivery person is injured on the job due to the construction company’s negligence, they can still file a claim. On the other hand, non-construction companies like janitorial services have been known to claim that an employee of another company was providing contracted services, and thus should be considered an employee of the contracting party. Such a defense might prevail in some cases.

8. Conclusion: No Harm in Seeking a Lawyer to Investigate

Intentional or criminally negligent conduct might be deterred by criminal laws, but laws governing workplace safety do secure recovery for the injured. For example, when the United States Occupational Safety and Health Administration (OSHA) issues a fine, the fines are rarely substantial. The fines also never directly aid any specific injured party.

Any person with a loved one suffering a catastrophic workplace injury should help them explore all their options, immediately. Employers have many avenues to reduce dramatically or even totally avoid liability; only fear of a potential lawsuit will be an incentive to ensure workplace safety. After all, when businesses all operate on the principle of profit, how else can negligent actions be deterred?

Not only should you reach out as soon as possible, but make sure that your lawyer is familiar with the intersections of personal injury, workers’ compensation, and disability law, to ensure that you pursue all avenues of recovery for your case.

Authored by Aaron Clemens, Esq.

The post Catastrophic workplace injury cases resulting in successful third-party claims appeared first on Romano Law Group.

As Halloween approaches, many eagerly await traditions like trick-or-treating, haunted houses, and various festivities. However, it is essential to recognize that along with the thrill of the season comes some concealed hazards that could potentially result in injury or even legal consequences. Among the enchanting allure of costumes and sweet treats, it is crucial to navigate these hidden dangers effectively. To ensure a Halloween that is both safe and fun, below are five legal issues to watch out for to protect yourself and your family this Halloween.

Trip and Fall Hazards

One of the most common Halloween-related accidents involves trips and falls. To create a spooky atmosphere, people often use dim lighting and intricate decorations, which can inadvertently create trip hazards. Did you know that property owners can be held responsible if their negligence leads to any kind of harm or injury on their premises? It’s important to be aware of potential hazards and take necessary safety measures to avoid accidents. To prevent accidents and avoid potential lawsuits, ensure your driveway and walkways are well-lit and free from obstructions. Using outdoor lighting such as string lights or LED pathway markers can guide guests and trick-or-treaters to your door, reducing safety risks.

Furthermore, keep decorations, extension cords, and any other potential obstructions away from walkways to prevent accidents. If you’re a homeowner, repair any uneven or cracked sidewalks. Further, before the start of the Halloween season, review your homeowner’s insurance policy to understand your coverage and liability. Ensure that it adequately protects you and your guests in case of accidents or injuries on your property. If you plan to host a Halloween event or decorate your property elaborately, you may want to consider increasing your liability coverage.

Animal-Related Incidents

The Halloween season can be exceptionally challenging for our furry companions, given the heightened commotion levels, the presence of often unusual and sometimes menacing costumes, and the blaring noises. To safeguard against potential legal issues, particularly those stemming from dog-related incidents like bites or noise complaints, it is of utmost importance to implement intentional strategies to ensure your pets’ well-being.

In preparation for the trick-or-treating festivities, it is strongly advised to maintain a secure and controlled environment for your pets. Ensure they avoid the bustling front door area where they might become agitated or alarmed by the influx of visitors in unfamiliar attire. Additionally, make sure they are wearing proper identification in case they escape. You may even consider putting them in a separate, quiet, and comfortable room to reduce stress and mitigate the anxiety-inducing aspects of the festive season.

Haunted House Injuries

Haunted houses or attractions frequently employ deliberate tactics to scare or startle their patrons. Yet, this approach to entertainment carries inherent risks, as individuals may sustain injuries, particularly due to excessive force or precarious conditions. If someone is injured, the attraction operators could face legal action, emphasizing the need for diligent safety measures within these attractions. Below are some ways to ensure a safe haunted house experience.

• Observe Safety Guidelines. Haunted house operators are entrusted with the responsibility of meticulous compliance with a myriad of safety guidelines and regulations. These may include building codes, fire safety, and crowd management protocols.
• Properly Train Staff. Actors and staff in haunted houses should be adequately trained to ensure they can perform their roles successfully. This vital training ensures that they possess the requisite skills and knowledge to navigate their roles adeptly, all while preserving the safety and well-being of their patrons.
• Monitor Guest Behavior. Haunted house operators should closely monitor the behavior of visitors to prevent dangerous actions or excessive force. Monitoring visitor behavior safeguards against legal issues and ensures the haunting experience’s integrity.

Fire Hazards

It is imperative to recognize the inherent fire hazards within the realm of Halloween, stemming from the flammability of numerous decorations, costumes, and candles used to create the desired eerie atmosphere. In cases where fire-related mishaps transpire, the potential for lawsuits skyrockets. Consequently, a heightened awareness of fire safety regulations is incumbent upon property owners and event organizers. You can help to avoid fire-related hazards by doing the following.

• Ensure that costumes are made from flame-resistant materials to prevent accidental fires.
• Use battery-operated candles or LED lights in jack-o’-lanterns to reduce the risk of fire.
• Keep flammable materials, such as costumes and decorations, away from open flames and heat sources.
• Ensure that smoke detectors are in working order in your home or establishment.
• Have a fire extinguisher readily accessible in case of emergencies.

Alcohol-Related Incidents

Adult Halloween parties are prevalent, and they often involve alcoholic beverages. While there’s no inherent harm in enjoying some spirits, it’s essential to do so responsibly. Therefore, if you find yourself hosting a Halloween celebration where alcoholic drinks will be served, take the following measures to ensure responsible alcohol consumption and prevent potential legal troubles.

• Avoid serving excessive amounts of alcohol to guests.
• Offer non-alcoholic beverage options to guests.
• Implement a check-in process to monitor the age of guests and prevent underage drinking.

In the event that a guest exhibits visible signs of intoxication, it is paramount to intervene proactively. Precluding an inebriated individual from operating a vehicle is essential and should be executed with the utmost care. As a responsible host, it is important to provide alternative options for transportation, like ride-sharing services or arranging a designated driver to ensure the safety of guests and others.

Happy Halloween!

In conclusion, Halloween can be a joyous and fun time for people of all ages. Prioritize safety during Halloween to ensure a fun and trouble-free celebration. So embrace the spirit of Halloween, and ensure it’s a season filled with treats, not traps.

If you face legal issues or injuries this Halloween, Romano Law Group is here to support and represent you in your claims. We’re dedicated to guiding and representing you, and committed to finding the resolution you deserve. If you need legal assistance, feel free to contact us anytime.

Authored by Mikayla T. Taylor, Esq.

The post 5 Tips for a Safe and Injury Free Halloween appeared first on Romano Law Group.

What kind of injuries occur at work?

For many individuals, work takes up a significant portion of their time, second only to sleeping. Unfortunately, work-related injuries are all too common and can be much more serious than injuries sustained during leisure time.

Work-related injuries can be caused by the physical demands of the job or accidents like falls and car crashes. Heavy lifting can cause injury, while office work can lead to repetitive stress injuries. Retail workers may also suffer from spinal injuries from standing in one place for extended periods. The severity of work-related injuries can range from minor cuts and bruises to limb loss, paralysis, or even death.

In the event of a catastrophic injury, it is important to explore all possible avenues for compensation, including workers’ compensation, disability benefits, and personal injury claims, also known as third-party claims.

How do workers’ compensation benefits work?

In Florida, all but the smallest employers must provide workers’ compensation benefits to employees. Employers do that by purchasing insurance from a workers’ compensation insurance carrier. This is similar to car insurance but pertains to injuries sustained on the job.

Workers’ compensation insurance covers medical benefits, lost wages, and vocational rehab for job-related injuries. The system aims to get you back to work…and fast. Florida also has a specific death benefit of up to $150,000.

Workers’ compensation is a no-fault system, meaning you do not have to prove that your employer is at fault to get benefits. In exchange for these benefits, you forfeit the right to sue your employer for negligence. Workers should receive immediate benefits for giving up the right to sue employers, except for extreme circumstances.

Workers’ compensation benefits often work with disability benefits and personal injury claims discussed below.

What are the limitations for workers’ compensation benefits?

As previously stated, once you inform your employer about your injury, they should promptly provide you with benefits. If fully satisfied with your workers’ compensation benefits, you may want to talk to a lawyer to explore your rights but may not need to pursue a claim. Lawyers typically see people complaining about workers’ compensation benefits. For example, some workers feel the insurance carrier may not take their claims seriously or give them substandard medical care.

Workers’ compensation benefits may be available without proving employer fault, but insurance carriers may deny coverage by claiming pre-existing injuries.

• Injury was pre-existing;
• Injury did not occur on the job or not while employee did work-related duties;
• Injury was due to employee’s use of drugs or alcohol.

In addition to these defenses, workers’ compensation does not provide non-economic damages or pain and suffering. That is a huge difference between a personal injury claim, where pain and suffering may be a huge component of the claim, and workers’ compensation.

Why might you want to claim workers’ compensation benefits?

Receiving some workers’ compensation benefits may not fulfill all of your needs, but it’s still better than receiving nothing. After a serious injury, it may be necessary to receive workers’ compensation benefits before pursuing other benefits. If you or someone you love has a severe injury and a personal injury claim, prompt medical care may still be necessary.

A lawyer knowledgeable about your options can discuss when it is wise to pursue or not pursue workers’ compensation benefits, also called the “election of remedies.”

Seeking workers’ compensation benefits may be a temporary solution while you pursue more valuable claims in a personal injury lawsuit. Lawyers experienced in both the workers’ compensation process and other legal avenues for recovery can help you navigate the situation.

Can I claim other benefits along with workers’ compensation?

Yes.

For catastrophic injuries, you or your loved ones will want to seek every possible avenue for recovery. These include workers’ compensation benefits, personal injury claims for any third party involved, and the possible pursuit of private and government disability benefits.

Example 1:

You are rear-ended while working. In addition to seeking workers’ compensation benefits, you may also be able to pursue benefits from the car insurance of the vehicle that hit you, as a third party. If companies like Uber or DoorDash employed the individual during the incident, you may also be able to file a lawsuit against those companies.

You can pursue your benefits as an uninsured motorist or first-party. It can be complicated, but submitting multiple claims can improve your chances of getting benefits.

A knowledgeable lawyer will try to help you try to maximize your recovery. It’s important to remember that most lawyers receive payment on a contingency fee basis, which means they only get paid if you receive a recovery. A dedicated lawyer committed to your case increases both parties’ earnings. It’s reassuring that your lawyer is invested in your best interests and committed to maximizing your financial compensation.

Example 2:

While carrying out your job responsibilities at a commercial property, you suffer a serious injury due to a hidden hazard, such as a hole, that causes you to fall. You may be eligible to receive benefits from workers’ compensation. Additionally, you can file a lawsuit against the commercial property owner for neglecting to maintain a safe environment or failing to notify you about the hidden danger.

Example 3:

If you were injured in a bridge collapse, such as the one that occurred at Florida International University, where a pedestrian bridge collapsed onto a busy road filled with cars, resulting in a tragic loss of life in 2018, there might be options for compensation. This incident left one worker and five motorists dead and six people with serious injuries, including one employee who was permanently disabled. Those injured in the collapse, including workers, may be able to pursue workers’ compensation claims and other legal claims like those not employed at the site.

Exception:

Under Florida law, the exception is that an employee cannot sue an employer unless the employer engaged in “gross negligence.” To sue an employer, it is necessary to prove that they acted with extreme negligence, to the point where it was highly likely that the employee would experience severe injury or even death. Meeting this high standard may seem daunting, but it is not impossible. Unfortunately, some employers prioritize saving money over their employees’ safety, disregarding simple and logical safety measures. This borderline criminal behavior puts employees at risk of injury or worse.

I believe that only when employees pursue gross negligence claims will employers start taking the safety of their workers seriously.

Can I get in trouble for claiming workers’ compensation benefits?

In Florida, a law safeguards individuals who file for workers’ compensation from facing any negative consequences in their employment. Such discrimination is prohibited by law, much like being terminated from a job based on your race, age, or gender. If you are fired for pursuing workers’ compensation benefits, you can take legal action against your employer for wrongful termination if you have made a good-faith effort to seek benefits. This applies even if you ultimately do not receive any benefits, as long as you pursue them in good faith.

Any employer should readily help you get treatment under their workers’ compensation policy. After all, they paid for the insurance to help you. That is the goal of the law: you cannot sue your employer, but you are entitled to swift benefits. If denied, you can immediately pursue a claim with an administrative law judge.

Employers may discourage workers from filing compensation claims to avoid higher insurance premiums in the future. This is more common among smaller businesses, where a single claim could impact their impeccable record. In contrast, larger corporations are less affected by such claims. However, it is important to note that it is illegal to discourage employees from seeking benefits. Additionally, failing to provide workers’ compensation benefits or falsely claiming to offer them without paying for them is considered a criminal offense.

Why should I contact a lawyer after being hurt at work?

It is common for injured individuals to seek legal counsel after their employer denies or restricts their benefits, often long after the injury has occurred. This is not ideal. Just like with any case, you should seek a lawyer quickly who can move to find evidence and pursue the case. Delaying your claim could make it harder to take legal action against your employer or third-party cases. For instance, if you were injured due to equipment failure, there may be a product liability claim to consider. Additionally, a class action claim may be possible if your injury is not severe but commonly occurs due to a defective or poorly designed product. Taking action as soon as possible is important to protect your rights.

If you are rejected for benefits and your employer has fired you, pursuing workers’ compensation benefits poses no risk. After all, you cannot get fired for seeking benefits if you were already terminated. Do not forget that a statute of limitations can bar any claims related to your injury if you wait. There is no time like the present to call a lawyer; the greater the injury, the greater the urgency.

Note:

Most workers’ compensation carriers require you to resign when you settle any workers’ compensation case. To get a settlement from most insurance carriers, in exchange, you agree not to sue them for anything else and, thus, never work for the employer ever again.

Some large employers do not require resignation, but it is common to resign to receive a lump sum workers’ compensation settlement; the result people most often want out of workers’ compensation: you give up future benefits, and they give you a lump sum, and you move on to handle your medical care outside of the workers’ compensation system.

On the other hand, if you are happy enough at your job, can still work or get proper accommodation, and do not want to risk resigning and looking for another job, maybe you only want to pursue a third-party claim.

Your employers should have no problem with you suing a driver who rear-ended or the commercial business you got hurt while visiting. Your employer’s insurance will be happier if you can settle a third-party claim against that driver or property owner since your settlement will reduce their obligation for your injuries.

Why?

When a personal injury lawyer gets a settlement from the driver or commercial property owner (we call these a tortfeasor or a civil wrongdoer), that caused your injury, harm, or loss, this settlement comes by citing the damages from these injuries, including damages paid by workers’ compensation carrier. When your employer’s insurance carrier pays these damages, that insurance company has a claim known as a subrogation lien. This lien is against future personal injury claims related to this same injury that the workers’ compensation carrier paid benefits.

When you collect money from a tortfeasor, you get this money based on damages the workers’ compensation carrier paid. You then use some settlement money to pay back what your workers’ compensation carrier paid, using a formula called the Manfredo Formula (named after a 1990 US Supreme Court).

If you recover from a work injury, your employer’s insurance company will be happy. But remember, in Florida, if you wait over a year to take legal action, your employer can sue a third party to recover the benefits they paid on your behalf. You must cooperate with your employer during this process. Some people prefer to hire their own legal counsel to navigate this situation.

Before you let an employer bring a case on your behalf, you may want to interview lawyers to represent you. When you sue, you may seek additional benefits, such as for pain and suffering. You have the right to choose your own lawyer instead of allowing your employer to sue to recoup their expenses. After all, you must participate in either suit; why not get a lawyer of your choice?

How do I know what sort of claim I might have based on my work injury?

Determining the best type of claim can be difficult as it varies depending on the circumstances. In certain cases, an individual who has been injured at work may only be eligible for workers’ compensation. This is because there may not be any third parties at fault, or the injury may be too severe to be litigated. It’s important to note that you can’t sue an employer for negligence unless it is gross. Proving negligence is easier if you’re injured as a guest at work than if you’re injured on the job.

Navigating the intersection of workers’ compensation, personal injury, employment law, and disability law can be a daunting task. In case of a catastrophic injury to you or your loved one, seeking legal representation from a knowledgeable lawyer in this field is crucial. It is important to connect with lawyers specializing in work injury cases, as each case presents unique challenges requiring extensive knowledge to maximize potential recovery.

Authored by Aaron Clemens, Esq.

The post What are my options after a catastrophic work injury? appeared first on Romano Law Group.