Auto Accidents on Vacations.

With this upcoming holiday season and the travels it often brings for many, I thought I’d remind travelers of the common sense precautions to take. From my own experience rushing to get places and do things seem to make me most accident prone. Do your best to make plenty of time for whatever the travel demands, a longer road trip, or a shorter quick trip for shopping. When I’m in a hurry it seems my patience for others is shorter and I get less careful. Hurrying up rarely saves more than a small amount of time and increases the risk of a ton more delay and expense. Often travel conditions are more hazardous at holiday times because of increased traffic and or inclement weather. These conditions magnify the risks associated with hurrying around. The precautions for increased traffic and inclement weather are really the same for those needed from rushing around so you get a extra measure of safety from allowing plenty of time for the travel.

If you are so unfortunate to have an accident away from your home and have to look for an attorney in Gainesville, Florida or some other city take care selecting one. We are all on the internet, and of course the internet is not a bad starting place but is only a starting point. Sit down with the attorney and discuss your situation. I have talked with many people who are unhappy after having hired someone through phone contact and mailing contracts only to learn many of these firms depend on high volume case turnover. Be selective. If you are paying 33.33% of the settlement to an attorney you should get that attorney’s time and attention. Don’t let the holiday rush that contributed to an accident cause you to rush into hiring someone who wants to rush through your case.

Be patient, go slow, take your time; the holidays will be better.

Texting while driving prohibition effective 10.1.2013; read the law here;

Florida’s “ban” on texting and driving goes into effect October 1, 2013. Read the law here, as well other laws that were modified to account for enforcement of this new law. The potential effect has been criticized by some citing the “secondary offense” character of the law, the small fine associated with its violation, and that the prohibited activity is permitted while stopped in traffic. It goes without saying that this activity done behind the wheel of a car moving at any speed is careless, even reckless and will cause and or contribute to a lot of automobile accidents in Gainesville, Alachua county, and all around North Florida. Florida has careless and reckless driving prohibitions on the books. These are “primary” offenses. Law enforcement cannot stop a driver for a secondary offense without some other primary offense occurring. There are many primary offenses; any moving violation for instance (speeding, stop sign violation, careless driving, reckless driving, even a lane change done improperly can be a primary offense)
The bottom line is it takes a personal commitment to drive safely, the messages we read or send surely can wait. You do not want to be standing in court as a defendant where a jury from your community hears that the message caused the injury or death of someone, or where a judge sentences you to prison because that secondary offense turned into a primary criminal offense resulting in personal injury or death of someone you go to church or school with; someones wife, mother, daughter, son, husband, a road side worker, a bicyclist or pedestrian.
CHAPTER 2013-58
Committee Substitute for Committee Substitute for Committee Substitute for Senate Bill No. 52

An act relating to the use of wireless communications devices while driving; creating s. 316.305, F.S.; creating the “Florida Ban on Texting While Driving Law”; providing legislative intent; prohibiting the operation of a motor vehicle while using a wireless communications device for certain purposes; defining the term “wireless communications device”; providing exceptions; specifying information that is admissible as evidence of a violation; providing penalties; providing for enforcement as a secondary action; amending s. 322.27, F.S.; providing for points to be assessed against a driver license for the unlawful use of a wireless communications device within a school safety zone or resulting in a crash; providing an effective date.
Be It Enacted by the Legislature of the State of Florida:
Section 1. Section 316.305, Florida Statutes, is created to read:
316.305 Wireless communications devices; prohibition.—
(1) This section may be cited as the “Florida Ban on Texting While Driving Law.”
(2) It is the intent of the Legislature to:
(a) Improve roadway safety for all vehicle operators, vehicle passengers, bicyclists, pedestrians, and other road users.
(b) Prevent crashes related to the act of text messaging while driving a motor vehicle.
(c) Reduce injuries, deaths, property damage, health care costs, health insurance rates, and automobile insurance rates related to motor vehicle crashes.
(d) Authorize law enforcement officers to stop motor vehicles and issue citations as a secondary offense to persons who are texting while driving.
(3)(a) A person may not operate a motor vehicle while manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data in such a device for the purpose of nonvoice interpersonal communication, including, but not limited to, communication methods known as texting, e-mailing, and instant messaging. As used in this section, the term “wireless communica- tions device” means any handheld device used or capable of being used in a handheld manner, that is designed or intended to receive or transmit text or character-based messages, access or store data, or connect to the Internet or
Ch. 2013-58 LAWS OF FLORIDA Ch. 2013-58
any communications service as defined in s. 812.15 and that allows text communications. For the purposes of this paragraph, a motor vehicle that is stationary is not being operated and is not subject to the prohibition in this paragraph.
(b) Paragraph (a) does not apply to a motor vehicle operator who is:
1. Performing official duties as an operator of an authorized emergency vehicle as defined in s. 322.01, a law enforcement or fire service professional, or an emergency medical services professional.
2. Reporting an emergency or criminal or suspicious activity to law enforcement authorities.
3. Receiving messages that are:
a. Related to the operation or navigation of the motor vehicle;
b. Safety-related information, including emergency, traffic, or weather
c. Data used primarily by the motor vehicle; or
d. Radio broadcasts.
4. Using a device or system for navigation purposes.
5. Conducting wireless interpersonal communication that does not
require manual entry of multiple letters, numbers, or symbols, except to activate, deactivate, or initiate a feature or function.
6. Conducting wireless interpersonal communication that does not require reading text messages, except to activate, deactivate, or initiate a feature or function.
7. Operating an autonomous vehicle, as defined in s. 316.003, in autonomous mode.
(c) Only in the event of a crash resulting in death or personal injury, a user’s billing records for a wireless communications device or the testimony of or written statements from appropriate authorities receiving such messages may be admissible as evidence in any proceeding to determine whether a violation of paragraph (a) has been committed.
(4)(a) Any person who violates paragraph (3)(a) commits a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.
(b) Any person who commits a second or subsequent violation of paragraph (3)(a) within 5 years after the date of a prior conviction for a violation of paragraph (3)(a) commits a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.2
Ch. 2013-58 LAWS OF FLORIDA Ch. 2013-58
(5) Enforcement of this section by state or local law enforcement agencies must be accomplished only as a secondary action when an operator of a motor vehicle has been detained for a suspected violation of another provision of this chapter, chapter 320, or chapter 322.
Section 2. Paragraph (d) of subsection (3) of section 322.27, Florida Statutes, is amended to read:
322.27 Authority of department to suspend or revoke driver license or identification card.—
(3) There is established a point system for evaluation of convictions of violations of motor vehicle laws or ordinances, and violations of applicable provisions of s. 403.413(6)(b) when such violations involve the use of motor vehicles, for the determination of the continuing qualification of any person to operate a motor vehicle. The department is authorized to suspend the license of any person upon showing of its records or other good and sufficient evidence that the licensee has been convicted of violation of motor vehicle laws or ordinances, or applicable provisions of s. 403.413(6)(b), amounting to 12 or more points as determined by the point system. The suspension shall be for a period of not more than 1 year.
(d) The point system shall have as its basic element a graduated scale of points assigning relative values to convictions of the following violations:
1. Reckless driving, willful and wanton—4 points.
2. Leaving the scene of a crash resulting in property damage of more than
$50—6 points.
3. Unlawful speed, or unlawful use of a wireless communications device,
resulting in a crash—6 points.
4. Passing a stopped school bus—4 points.
5. Unlawful speed:
a. Not in excess of 15 miles per hour of lawful or posted speed—3 points.
b. In excess of 15 miles per hour of lawful or posted speed—4 points.
6. A violation of a traffic control signal device as provided in s. 316.074(1) or s. 316.075(1)(c)1.—4 points. However, no points shall be imposed for a violation of s. 316.074(1) or s. 316.075(1)(c)1. when a driver has failed to stop at a traffic signal and when enforced by a traffic infraction enforcement officer. In addition, a violation of s. 316.074(1) or s. 316.075(1)(c)1. when a driver has failed to stop at a traffic signal and when enforced by a traffic infraction enforcement officer may not be used for purposes of setting motor vehicle insurance rates.

Ch. 2013-58 LAWS OF FLORIDA Ch. 2013-58
7. All other moving violations (including parking on a highway outside the limits of a municipality)—3 points. However, no points shall be imposed for a violation of s. 316.0741 or s. 316.2065(11); and points shall be imposed for a violation of s. 316.1001 only when imposed by the court after a hearing pursuant to s. 318.14(5).
8. Any moving violation covered in this paragraph above, excluding unlawful speed and unlawful use of a wireless communications device, resulting in a crash—4 points.
9. Any conviction under s. 403.413(6)(b)—3 points.
10. Any conviction under s. 316.0775(2)—4 points.
11. A moving violation covered in this paragraph which is committed in conjunction with the unlawful use of a wireless communications device within a school safety zone—2 points, in addition to the points assigned for the moving violation.
Section 3. This act shall take effect October 1, 2013. Approved by the Governor May 28, 2013.
Filed in Office Secretary of State May 28, 2013.

Auto accidents; I-75; and out of town lawyers.

Driving around Gainesville today I drove under I-75. South bound traffic was at a stand still. I went north bound on the interstate and saw traffic backed up standing still for several miles. Paynes Prairie is just south of the entrance (Williston Road) I got on, so the accident was likely on the prairie. Traffic conditions were moderately heavy and the weather over cast with on and off again rain. If claims are made as is likely some will call lawyer referral services like Ask Gary or 411 PAIN. Some will call the large firms from south Florida which advertise state wide but don’t have offices in the jurisdictions where claims are litigated if unresovled pre-suit.
I realize it is self serving for me to write it, but claims handled by these lawyers whose offices are outside the cities where the case might be litigated are at a disadvantage. Insurance adjusters know when these lawyers get cases through referral services or through state wide advertising and they know those lawyers are much less likely to file the law suit to get the “fair” resolution for their client. For these firms the “business” is all about getting and settling cases not digging in and doing the hard work necessary to get the best result. I have handled several cases over the last year after the out of town lawyer fired the client who refused the settlement offer and wanted to go to court.
Let me suggest a simple test; if the lawyer you are considering hiring wants to MAIL you the contingent fee contract, rather than come meet you and explain the process in person you should think twice before hiring that lawyer and at least get a second opinion from local counsel. The insurance industry keeps track. They know which firms will see the case through. You are going to have to see the case through, get a lawyer who will too. If you’ve been injured in an accident, need help getting PIP benefits, or property damages paid, rental vehicle coverage or most importantly compensation for permanent personal injuries consult a lawyer near the accident scene. The adjusters know the local lawyer is more likely to see your case through.

two important florida court decision; workers compensation and medical malpractice

I have pasted two appellate court decisions here because of how important they are to Florida law. You may not read them, but they are here if you’d like to. The first is an opinion from the Florida Supreme Court. The decision involves the enforceability of an agreement between a doctor and patient in which the patient gives up the right to take the doctor to Court in the event of a claim against the doctor. The agreement requires the parties to submit the dispute to arbitration. Because of the specific provisions of this arbitration agreement the Supreme Court found it unenforceable because it violated the public policy expressed in FS 766. The second opinion is one from the First District Court of Appeal. It declares a portion of the workers compensation law unconstitutional because the benefits under the statute were so small and the statute prevented the worker from going to Court for “adequate” compensation.

Both decisions favor the plaintiffs and seem to send the message that the Courts will be looking at statutes and agreements that drastically curtail citizen access to Court. We don’t see decisions with such far reaching effect very often.
DONNA FRANKS, etc., Petitioner,
GARY JOHN BOWERS, M.D., et al., Respondents.
No. SC11-1258
Supreme Court of Florida
Dated: June 20, 2013

        Joseph Franks sought medical treatment from Dr. Gary John Bowers and North Florida Surgeons, P.A. (NFS). Subsequently, Joseph suffered a large retroperitoneal hematoma at the operative site due to the external iliac vein being lacerated during surgery. He remained hospitalized until his death. Joseph’s wife, Donna Franks, filed a complaint against Bowers and NFS for medical malpractice resulting in wrongful death. Bowers and NFS moved to compel arbitration based on the Financial Agreement signed by Joseph prior to his surgery. The trial court entered the order compelling arbitration, “with substantial reservations,” and the First District Court of Appeal affirmed on appeal. Donna Franks, as personal
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representative of the Estate of Joseph Franks, seeks review of Franks v. Bowers, 62 So. 3d 16 (Fla. 1st DCA 2011), on the ground that it expressly and directly conflicts with this Court’s decision in University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
        Franks alleges that the Financial Agreement is void under the public policy enunciated in chapter 766, Florida Statutes (2008), because the agreement does not provide the same remedies as provided by the Legislature. Because we find that the damages clause of the arbitration provision of the Financial Agreement violates the public policy pronounced by the Legislature in the Medical Malpractice Act (MMA), and we further find that the offensive clause is not severable from the remainder of the arbitration provision, we quash the decision below compelling arbitration under the agreement with direction for the court to proceed under the guidelines provided in chapter 766, Florida Statutes.
        On September 25, 2008, Joseph sought medical treatment from Dr. Bowers and NFS. Joseph signed the Financial Agreement prior to his visit. The Financial Agreement was four pages long and included a signature line on the first, third, and fourth pages. The second page included the following provision:
It is further understood, that in the event of any controversy or dispute, which might arise between the Doctor and the Patient, regardless of whether the dispute concerns the medical care rendered, including any negligence claim relating to the diagnosis, treatment, or
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care of the Patient, or payment of surgical fees, or any other matter whatsoever, then the parties agree that the dispute shall be resolved by arbitration as provided by the Florida Arbitration Code, Chapter 682 (Florida Statutes). This arbitration shall be in lieu and instead of any trial by Judge or Jury. Each party shall choose one arbitrator and the two arbitrators shall choose a third arbitrator. The panel of arbitrators shall hear and decide the controversy, and the decision shall be binding on all parties and may be enforced by a court of law if necessary.
In the event that either party to this Doctor-Patient Agreement refuses to go forward with arbitration, the party compelling arbitration reserves the right to proceed with arbitration, the appointment of the arbitrator, and hearing to resolve the dispute, despite the refusal to participate or the absence of the opposing party. The arbitrator shall go forward with the arbitration hearing and render a binding decision without the participation of the party opposing arbitration or despite his or her absence at the arbitration hearing.
Prior to commencing any action under this Doctor-Patient Agreement, Patient must comply with the presuit notice and investigation requirements of Chapter 766, Florida Statutes.
The Patient understands that the Patient has a constitutional right under Article I, Section 21 of the Florida Constitution of Access to Courts as follows: “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” The Patient understands and acknowledges that signing this Doctor-Patient Agreement waives this constitutional right.
Within the same section, this page contains a subheading titled “Limitation of Damages,” which provides:
Patient agrees that in the event of any dispute with Doctor, for any reason whatsoever, including any negligence claim relating to the diagnosis, treatment, or care of the Patient, Patient’s non-economic damages (including, but not limited to, damages for pain and suffering) shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, pursuant to the formula contained in Florida Statutes, Section 766.207. For example, if the Patient’s injuries resulted in a 50% reduction in his or her capacity to enjoy life, this would warrant
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an award of not more than $125,000 in non-economic damages. This limit applies regardless of the number of claimants or defendants in the arbitration proceeding.
This limitation of damages provision does not limit or restrict in any way the Patient’s right to seek all economic damages actually incurred by the Patient, including any medical expenses and lost wages.
        On January 23, 2009, Dr. Bowers performed surgery on Joseph without reported complications. Joseph was discharged to his home. On January 25, 2009, Joseph developed pain and he and Donna went to the emergency room. A CT scan revealed a large retroperitoneal hematoma from the operative site due to the external iliac vein being lacerated during surgery. Joseph remained hospitalized until his death on February 3, 2009.
        Donna Franks filed a complaint alleging medical malpractice and wrongful death. NFS filed a motion to compel arbitration, which was granted. Franks appealed the order compelling arbitration, arguing that the trial court misconstrued the agreement or that it was otherwise void as being contrary to public policy and unconscionable. Franks, 62 So. 3d at 17. The First District Court of Appeal disagreed and held that “the court properly construed and applied the arbitration clause.” Id. Furthermore, the First District held,
The differences between the arbitration process in Chapter 766 and arbitration under the Financial Agreement in the present case do not countermand the public policy reflected in Chapter 766, as applied to the claims presented in this case. Unlike the nursing home cases, the Financial Agreement does not eliminate statutory rights which are essential in effectuating legislative intent, or policy. Instead, the
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arbitration clause, as applied in this instance, affords meaningful relief and is consistent with the legislative purpose and the public policy which led to the enactment of the medical negligence provisions in Chapter 766.
Id. at 18. Lastly, the First District found that Franks failed to demonstrate either procedural or substantive unconscionability. Id. We disagree with the district court’s conclusion that the agreement is consistent with the legislative purpose and public policy contained within chapter 766, and hold that the Limitation of Damages provision contravenes the public policy enunciated therein. We therefore quash the First District’s decision and remand for proceedings consistent with this decision.
        The MMA provides, in relevant part:
(1) Voluntary binding arbitration pursuant to this section and ss. 766.208-766.212 shall not apply to rights of action involving the state or its agencies or subdivisions, or the officers, employees, or agents thereof, pursuant to s. 768.28.
(2) Upon the completion of presuit investigation with preliminary reasonable grounds for a medical negligence claim intact, the parties may elect to have damages determined by an arbitration panel. Such election may be initiated by either party by serving a request for voluntary binding arbitration of damages within 90 days after service of the claimant’s notice of intent to initiate litigation upon the defendant. The evidentiary standards for voluntary binding arbitration of medical negligence claims shall be as provided in ss. 120.569(2)(g) and 120.57(1)(c).
(3) Upon receipt of a party’s request for such arbitration, the opposing party may accept the offer of voluntary binding arbitration within 30 days. . . .
. . . .
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(7) Arbitration pursuant to this section shall preclude recourse to any other remedy by the claimant against any participating defendant, and shall be undertaken with the understanding that damages shall be awarded as provided by general law, including the Wrongful Death Act, subject to the following limitations:
(a) Net economic damages shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.
(b) Noneconomic damages shall be limited to a maximum of $250,000 per incident, and shall be calculated on a percentage basis with respect to capacity to enjoy life, so that a finding that the claimant’s injuries resulted in a 50-percent reduction in his or her capacity to enjoy life would warrant an award of not more than $125,000 noneconomic damages.
(c) Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to s. 766.202(9) and shall be offset by future collateral source payments.
(d) Punitive damages shall not be awarded.
(e) The defendant shall be responsible for the payment of interest on all accrued damages with respect to which interest would be awarded at trial.
(f) The defendant shall pay the claimant’s reasonable attorney’s fees and costs, as determined by the arbitration panel, but in no event more than 15 percent of the award, reduced to present value.
(g) The defendant shall pay all the costs of the arbitration proceeding and the fees of all the arbitrators other than the administrative law judge.
(h) Each defendant who submits to arbitration under this section shall be jointly and severally liable for all damages assessed pursuant to this section.
(i) The defendant’s obligation to pay the claimant’s damages shall be for the purpose of arbitration under this section only. A defendant’s or claimant’s offer to arbitrate shall not be used in evidence or in argument during any subsequent litigation of the claim following the rejection thereof.
(j) The fact of making or accepting an offer to arbitrate shall not be admissible as evidence of liability in any collateral or subsequent proceeding on the claim.
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(k) Any offer by a claimant to arbitrate must be made to each defendant against whom the claimant has made a claim. Any offer by a defendant to arbitrate must be made to each claimant who has joined in the notice of intent to initiate litigation, as provided in s. 766.106. A defendant who rejects a claimant’s offer to arbitrate shall be subject to the provisions of s. 766.209(3). A claimant who rejects a defendant’s offer to arbitrate shall be subject to the provisions of s. 766.209(4).
(l) The hearing shall be conducted by all of the arbitrators, but a majority may determine any question of fact and render a final decision. The chief arbitrator shall decide all evidentiary matters.
The provisions of this subsection shall not preclude settlement at any time by mutual agreement of the parties.
§ 766.207(1)-(3), (7), Fla. Stat. (2008).
(1) A proceeding for voluntary binding arbitration is an alternative to jury trial and shall not supersede the right of any party to a jury trial.
(2) If neither party requests or agrees to voluntary binding arbitration, the claim shall proceed to trial or to any available legal alternative such as offer of and demand for judgment under s. 768.79 or offer of settlement under s. 45.061.
(3) If the defendant refuses a claimant’s offer of voluntary binding arbitration:
(a) The claim shall proceed to trial, and the claimant, upon proving medical negligence, shall be entitled to recover damages subject to the limitations in s. 766.118, prejudgment interest, and reasonable attorney’s fees up to 25 percent of the award reduced to present value.
(b) The claimant’s award at trial shall be reduced by any damages recovered by the claimant from arbitrating codefendants following arbitration.
(4) If the claimant rejects a defendant’s offer to enter voluntary binding arbitration:
(a) The damages awardable at trial shall be limited to net economic damages, plus noneconomic damages not to exceed $350,000 per incident. The Legislature expressly finds that such conditional limit on noneconomic damages is warranted by the claimant’s refusal to accept arbitration, and represents an appropriate balance between the interests of all patients who ultimately pay for
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medical negligence losses and the interests of those patients who are injured as a result of medical negligence.
(b) Net economic damages reduced to present value shall be awardable, including, but not limited to, past and future medical expenses and 80 percent of wage loss and loss of earning capacity, offset by any collateral source payments.
(c) Damages for future economic losses shall be awarded to be paid by periodic payments pursuant to s. 766.202(9), and shall be offset by future collateral source payments.
(5) Jury trial shall proceed in accordance with existing principles of law.
§ 766.209, Fla. Stat. (2008). We previously discussed, in depth, the intent and purpose of these provisions, stating:
The Legislature enacted the statutory scheme at issue following the recommendations and study made by the Academic Task Force for Review of the Insurance and Tort Systems (Task Force). In studying medical malpractice insurance costs, the Task Force found that the
primary cause of increased malpractice premiums has been the substantial increase in loss payments to claimants and not excessive insurance company profits nor the insurance industry underwriting cycle. Further, the Task Force found that the dramatic increase in the size or amounts of paid claims was the major cause of the increase in total claims payments; the frequency of claims against physicians increased only slightly. In particular, the size and increasing frequency of the very large claims were found to be a problem. Finally, attorneys’ fees and other litigations costs were found to represent approximately 40 percent of the total costs of insurance companies, while claimants received 43.1 percent of the insurers’ total incurred costs. During the past eleven years, the average cost of defending a malpractice claim had increased at an annual compound rate of seventeen percent.
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Academic Task Force for Review of the Insurance and Tort Systems, Medical Malpractice Recommendations at 10-11 (Nov. 6, 1987) (footnotes omitted) (on file with H.R.Comm. on Ins., The Capitol). The Task Force recommended implementation of a medical malpractice plan designed to stabilize and reduce medical liability premiums. The recommended plan included that parties conduct a reasonable investigation preceding malpractice claims and defenses in order to eliminate frivolous claims and defenses, and incentives for parties to arbitrate medical malpractice claims in order to reduce litigation expenses. The Legislature adopted the Task Force’s recommendations and findings in chapter 88-1, Laws of Florida, and section 766.201, Florida Statutes (Supp.1988).
Echarte, 618 So. 2d at 191-92 (footnotes omitted). We explained why the Legislature rejected a no-fault system similar to the one adopted by the Financial Agreement, stating:
[M]edical malpractice arbitration statutes are less restrictive than the workers’ compensation statutes, and . . . the Task Force specifically considered and rejected both a no-fault alternative system of compensation and a mandatory insurance pool as means to control increases in the medical malpractice insurance rates.
Echarte, 618 So. 2d at 194.
Furthermore, in considering a no-fault system, the Task Force stated that for most medical injuries
the Task Force does not recommend a no-fault compensation alternative to the tort system. This negative conclusion is compelled by findings that a comprehensive no fault system for all medical injuries would be prohibitively expensive, many times more expensive than the existing medical malpractice systems. In order to develop a no-fault system at reasonable cost, it is necessary to establish a framework for distinguishing compensable events from noncompensable events. In most areas of medical injury, this is not economically feasible at the present time. For example, defining the
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compensable event for a no-fault plan to cover medical injuries in emergency rooms and trauma centers would require terms broad enough to include injuries of every degree to any part of the body resulting from an unlimited variety of medical interventions. Because of its expansive potential, such a broad definition of the compensable event would make no-fault insurance costs prohibitively expensive, at worst, and impossible to predict, at best.
Medical Malpractice Recommendations at 31-32. The Task Force also rejected a proposal which would require all physicians to buy into a state-operated insurance pool in order to provide a mandatory first layer of medical malpractice insurance. The Task Force explained that such a plan “could effectively destroy any existing vitality and competitiveness in the private market for medical malpractice insurance in the state of Florida.” Medical Malpractice Recommendations at 49. Further, the Task Force noted that placing all physicians in a state-operated insurance pool would have the effect of charging physicians who practice in low-risk areas of medicine higher premiums in order to subsidize the high cost of premiums for physicians who practice in high-risk areas. The Task Force specifically rejected such mandatory insurance plans as being overly intrusive into the insurance market and economically undesirable. Id.
The Task Force’s recommendations to the Legislature not to adopt a no-fault system or mandatory insurance program are based on an extensive study of the complex causes of the increases in medical malpractice insurance rates. According to the Task Force’s report the solutions the Legislature implemented to meet the workers’ compensation problem are not effective to answer the medical malpractice insurance liability crisis. The unique facts surrounding medical malpractice required the Legislature to tailor a different solution to solve the crisis.
Echarte, 618 So. 2d at 194-95. Finally, relating to the purpose of the MMA, we accepted the Legislature’s statement of findings presented in the preamble of the chapter, stating:
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[T]he Legislature set out its factual findings in the preamble of chapter 88-1, which initially enacted the Task Force’s recommendations. In fact, the preamble in chapter 88-1 states in part:
[I]t is the sense of the Legislature that if the present crisis is not abated, many persons who are subject to civil actions will be unable to purchase liability insurance, and many injured persons will therefore be unable to recover damages for either their economic losses or their non-economic losses . . . .
Ch. 88-1. This preamble clearly states the Legislature’s conclusion that the current medical malpractice insurance crisis constitutes an “overpowering public necessity.” Moreover, the Legislature made a specific factual finding that “[m]edical malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased unavailability of malpractice insurance for some physicians.” § 766.201(1)(a).
The Legislature’s factual and policy findings are supported by the Task Force’s findings in its report.
Echarte, 618 So. 2d at 196 (emphasis added). Accordingly, we have clarified the stated policy and intent of the Act—to address the “overpowering public necessity” created by the medical malpractice insurance crisis. And, the MMA does “redress an existing grievance.” Specifically, the MMA presents the Legislature’s careful balancing of the rights of patients and the needs of doctors in order to address the medical malpractice crisis. Further, the MMA was enacted to limit the remedies available to patients, which represents a change to the remedy available to patients.
        We have said that parties are free to contract around a state law so long as there is nothing void as to public policy or statutory law. See, e.g., Green v. Life & Health of America, 704 So. 2d 1386, 1390 (Fla. 1998). However, a contractual
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provision that contravenes legislative intent in a way that is clearly injurious to the public good violates public policy and is thus unenforceable. See generally Mullis v. State Farm Mut. Auto Ins. Co., 252 So. 2d 229 (Fla. 1971). We do not take lightly the freedom of contract, but we find that the Financial Agreement blatantly contravenes the intent provided by the Florida Legislature, discussed above.
        We have previously stated that “[t]he arbitration provisions were enacted to provide ‘[S]ubstantial incentives for both claimants and defendants to submit their cases to binding arbitration, thus reducing attorneys’ fees, litigation costs, and delay.’ ” Chester v. Doig, 842 So. 2d 106, 107 (Fla. 2003) (quoting § 766.201(2)(b), Fla. Stat. (1997)). The Financial Agreement requires the parties to submit to financial arbitration and therefore meets the first stated goal of the MMA. However, the “substantial incentives” for the claimants to submit to the arbitration have been removed under the agreement. We previously explained the incentives for claimants to voluntarily submit to such a process, stating:
The claimant benefits from the requirement that a defendant quickly determine the merit of any defenses and the extent of its liability. The claimant also saves the costs of attorney and expert witness fees which would be required to prove liability. Further, a claimant who accepts a defendant’s offer to have damages determined by an arbitration panel receives the additional benefits of: 1) the relaxed evidentiary standard for arbitration proceedings as set out by section 120.58, Florida Statutes (1989); 2) joint and several liability of multiple defendants in arbitration; 3) prompt payment of damages after the determination by the arbitration panel; 4)
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interest penalties against the defendant for failure to promptly pay the arbitration award; and 5) limited appellate review of the arbitration award requiring a showing of “manifest injustice.”
On the other hand, the most significant incentive for defendants to concede liability and submit the issue of damages to arbitration is the $250,000 cap on noneconomic damages. This limitation provides liability insurers with the ability to improve the predictability of the outcome of claims for the purpose of loss planning in risk assessment for premium purposes.
St. Mary’s Hosp., Inc. v. Phillipe, 769 So. 2d 961, 970 (Fla. 2000) (quoting Echarte, 618 So. 2d at 194); see also N. Miami Med. Ctr. v. Prezeau, 793 So. 2d 1142, 1144-45 (Fla. 3d DCA 2001) (“It is apparent from the clear and unambiguous language of the statute that the benefit of the statutory cap on non-economic damages is solely reserved for a defendant who is conceding liability and participating in arbitration. This benefit is part of the statutory scheme to encourage the arbitration of medical negligence claims.”).
        Under the statute, Franks would be entitled to receive a maximum of $1 million if the case proceeded to court without either party seeking arbitration, or if Dr. Bowers and NFS refused to proceed with arbitration under the conditions of section 766.207. See § 766.209, Fla. Stat. (2008) (providing that the caps under § 766.118, Fla. Stat. (2008), apply when voluntary arbitration is refused.); § 766.118(2)(a)-(b), Fla. Stat. (2008) (“With respect to a cause of action for . . . wrongful death arising from medical negligence of practitioners, . . . noneconomic
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damages shall not exceed $500,000 per claimant. . . . [I]f the negligence resulted in a . . . death, the total noneconomic damages recoverable from all practitioners . . . under this paragraph shall not exceed $1 million.”). Under the Financial Agreement, Franks could only receive a maximum of $250,000. Further, the agreement dispenses with the inherent concession of liability provided by section 766.207. See § 766.207(2), Fla. Stat. (2008) (” [T]he parties may elect to have damages determined by an arbitration panel.”). This Court has previously stated that the concession of liability is one of the incentives provided by the chapter. See St. Mary’s Hospital, 769 So. 2d at 970.
        The incentive provided to claimants to encourage arbitration is a necessary provision of the MMA. We therefore find that the Financial Agreement’s avoidance of the incentive contravenes the intent of the statute and, accordingly, the public policy of this state. Because the Legislature explicitly found that the MMA was necessary to lower the costs of medical care in this State, we find that any contract that seeks to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions.
        We now turn to whether the objectionable provision is severable. NFS argues that the arbitration provision of the financial agreement is valid and that the limitation of damages provision is a separate and severable provision. We disagree. A plain reading of the agreement and its provisions provides that the
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Limitation of Damages provision is not severable from the Arbitration provision, without which the trial court’s order compelling arbitration is void. Because we are reviewing the propriety of the order compelling arbitration, we do not address whether the arbitration provision is severable from the Financial Agreement.
        We have previously set forth the following standard for determining whether a contractual provision is severable from the whole:
As to when an illegal portion of a bilateral contract may or may not be eliminated leaving the remainder of the contract in force and effect, the authorities hold generally that a contract should be treated as entire when, by a consideration of its terms, nature, and purpose, each and all of its parts appear to be interdependent and common to one another and to the consideration. Stokes v. Baars, 18 Fla. 656; 12 Am.Jur., Contracts, sec. 316. Stated differently, a contract is indivisible where the entire fulfillment of the contract is contemplated by the parties as the basis of the arrangement. Hyde & Gleises v. Booraem & Co., 16 Pet. 169, 10 L.Ed. 925. On the other hand, a bilateral contract is severable where the illegal portion of the contract does not go to its essence, and where, with the illegal portion eliminated, there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other. Williston on Contracts, rev. ed., Vol. 6, sec. 1782.
Whether a contract is entire or divisible depends upon the intention of the parties. Ireland v. Craggs, 5 Cir., 56 F.2d 785. And this is a matter which may be determined “by a fair construction of the terms and provisions of the contract itself, and by the subject matter to which it has reference.” 12 Am.Jur., Contracts, sec. 315.
Local No. 234 v. Henley & Beckwith, Inc., 66 So. 2d 818, 821-22 (Fla. 1953). “To the extent this claim is based on written materials before this Court, the issue is a pure question of law, subject to de novo review.” Shotts v. OP Winter Haven, Inc.,
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86 So. 3d 456, 475 (Fla. 2011) (citing Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010)).
        The Financial Agreement is a four-page document containing twelve separate headings. Joseph’s signature appears on pages two, three, and four of the agreement. The Arbitration provision begins on page two and continues on page three. The Limitation of Damages clause appears as a subheading under the Arbitration provision on page two. Because of this format, it does not appear that either party intended for the Limitation of Damages provision to be separated from the Arbitration provision. A further indication of this intent is that the signature acknowledging the agreement appears on page three under “Arbitration, continued.” Additionally, the plain language of the Limitation of Damages provision supports this conclusion: “This limit applies regardless of the number of claimants or defendants in the arbitration proceeding.” Based on the foregoing, we find that the Limitation of Damages clause is not severable from the Arbitration provision of the Financial Agreement.
        Lastly, we address whether the Federal Arbitration Act (FAA) precludes our finding expressed herein. Dr. Bowers argues that if the MMA is interpreted to restrict the enforcement of the arbitration clause in the financial agreement, then the FAA preempts state law. Because we find that the MMA does not preclude all arbitration—and, in fact encourages arbitration under the specified guidelines—
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and that our decision here is fact-specific pertaining only to the particular agreement before us and does not prohibit all arbitration agreements under the MMA, we likewise find that the FAA does not preempt state law or preclude our decision here.1 The FAA reflects a strong federal policy favoring enforcement of agreements to arbitrate and provides, in part, that a written agreement to arbitrate disputes arising from a contract “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (2006). However, this policy does not preclude a state from enforcing its laws regarding arbitration procedures.
        In Volt Information Sciences, Inc. v. Board of Trustees, 489 U.S. 468 (1989), the United States Supreme Court held that a state statute is not preempted by the FAA where the parties have agreed that their agreement will be governed by state law. Volt, 489 U.S. at 470. After a dispute arose between the parties, Stanford University filed an action against Volt in California Superior Court and Volt moved to compel arbitration. The Superior Court denied Volt’s motion to compel arbitration and stayed the proceeding pending the outcome of tangential
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litigation. Volt appealed to the California Court of Appeal, which affirmed, reasoning “that the purpose of the FAA was not to mandate the arbitration of all claims, but merely the enforcement of privately negotiated arbitration agreements.” Volt, 489 U.S. at 472 (internal quotation marks omitted). The United States Supreme Court affirmed, stating:
The [FAA] was designed to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate, and place such agreements upon the same footing as other contracts. Section 2 of the Act therefore declares that a written agreement to arbitrate in any contract involving interstate commerce or a maritime transaction shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract, and § 4 allows a party to such an arbitration agreement to petition any United States district court for an order directing that such arbitration proceed in the manner provided for in such agreement.
But § 4 of the FAA does not confer a right to compel arbitration of any dispute at any time; it confers only the right to obtain an order directing that arbitration proceed in the manner provided for in the parties’ agreement.
Volt, 489 U.S. at 474-75 (citations, internal quotation marks, brackets, emphasis, and ellipses omitted).
[T]he FAA does not require parties to arbitrate when they have not agreed to do so, nor does it prevent parties who do agree to arbitrate from excluding certain claims from the scope of their arbitration agreement. It simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms.
Volt, 489 U.S. at 478 (citations omitted).
But it does not follow that the FAA prevents the enforcement of agreements to arbitrate under different rules than those set forth in the
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Act itself. Indeed, such a result would be quite inimical to the FAA’s primary purpose of ensuring that private agreements to arbitrate are enforced according to their terms. Arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit.
Volt, 489 U.S. at 479.
        In short, “[t]here is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate.” Volt, 489 U.S. at 476. Based on this reasoning, the FAA does not preempt this Court’s determination that the arbitration provision must follow the rules outlined in chapter 766 because our conclusion does not impede the general enforceability of agreements to arbitrate.
        Based on our decision above, we decline to address whether the Financial Agreement was unconscionable. For the foregoing reasons, we find that the Financial Agreement is void as to public policy and quash the First District’s decision affirming the trial court’s order compelling arbitration. We remand with instructions to hold further proceedings consistent with our decision.
        It is so ordered.
PARIENTE, J., specially concurs with an opinion.
CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.
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PARIENTE, J., specially concurring.
        I agree with the majority that the Financial Agreement that the patient was required to sign takes away the patient’s significant statutory rights without providing the commensurate benefit of requiring the defendant to admit liability, as specifically envisioned by the Medical Malpractice Statute. For this reason, the Financial Agreement violates the public policy of Florida, as embodied in the Medical Malpractice Statute.
        Specifically, this Financial Agreement forces the patient to forego his or her right to pursue a claim in a court of law and limits the amount of recoverable damages—without requiring the defendant to admit liability or to give up any other rights in return. Conversely, the Financial Agreement under review relieves the defendant of the burden and expense of proceeding to a jury trial and still limits the amount of damages that must be paid—without providing any benefit to the patient in return. In other words, this Financial Agreement undermines the legislative balance of incentives in the comprehensive medical malpractice statutory scheme, and for that reason is void as against the public policy underpinning the Medical Malpractice Statute.
        As set forth in chapter 766, if a defendant agrees to admit liability, a patient is required to give up the right to sue in a court of law and must arbitrate his or her claims, and the patient is also subject to limitations on recoverable damages. See
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§ 766.207, Fla. Stat. (2008). In turn, the Legislature envisioned that with a defendant’s admission of liability, a patient’s risk of recovering nothing would be eliminated. The legislative scheme also envisioned that the admission of liability would reduce the expenses of litigation and expedite the process of resolving the dispute.
        In contravention to the carefully crafted statutory scheme set forth in chapter 766, the Financial Agreement under review requires the patient to arbitrate his or her claims in exchange for absolutely nothing in return—no elimination of the risk of not recovering any damages through the defendant’s admission of liability, no guarantee of a reduction in the expenses inherent in proving a medical malpractice claim, and no assurance that the dispute will be resolved quickly—while still subjecting the patient to the cap on damages. This result is contrary to the public policy of Florida, as expressed in the Medical Malpractice Statute.
        The Legislature expressly stated that its intent in enacting the Medical Malpractice Statute was to “provide a plan for prompt resolution of medical negligence claims.” § 766.201(2), Fla. Stat. (emphasis added). The Legislature provided that “[a]rbitration shall be voluntary and shall be available except as specified.” Id. As set forth in the legislative findings allowing for arbitration, the Legislature found that arbitration would provide incentives and benefits to both parties:
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        (b) Arbitration shall provide:
1. Substantial incentives for both claimants and defendants to submit their cases to binding arbitration, thus reducing attorney’s fees, litigation costs, and delay.
2. A conditional limitation on noneconomic damages where the defendant concedes willingness to pay economic damages and reasonable attorney’s fees.
3. Limitations on the noneconomic damages components of large awards to provide increased predictability of outcome of the claims resolution process for insurer anticipated losses planning, and to facilitate early resolution of medical negligence claims.
Id. Thus, the Legislature envisioned a plan in which there would be the following give-and-take in order to provide for the prompt resolution of claims and to reduce costs: (1) “[s]ubstantial incentives for both claimants and defendants” to submit to arbitration, which would reduce attorney’s fees, litigation costs, and delay; (2) a conditional limitation on noneconomic damages in exchange for the defendant conceding to pay economic damages and reasonable attorney’s fees; and (3) limitations on the noneconomic damages “to provide increased predictability” and “facilitate early resolution of medical negligence claims.” § 766.201(2)(b), Fla. Stat. (emphasis added).
        Chapter 766 withstood constitutional scrutiny with respect to a patient’s right of access to the courts for the following reason: “[T]he statutes at issue provide a commensurate benefit to the plaintiff in exchange for the monetary cap.” Univ. of Miami v. Echarte, 618 So. 2d 189, 190 (Fla. 1993) (emphasis added). “Commensurate benefit” to the injured party is the linchpin of the constitutional
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analysis where the statutory scheme restricts the right of access to courts. See Smith v. Dep’t of Ins., 507 So. 2d 1080, 1087-88 (Fla. 1987); see also Kluger v. White, 281 So. 2d 1, 3-4 (Fla. 1973). The “commensurate benefit” of the monetary cap on noneconomic damages if both parties agree to arbitration under the statute was explained as follows in Echarte:
The initial question in the instant case is whether the arbitration statutes, which include the non-economic damage caps found in sections 766.207 and 766.209, provide claimants with a “commensurate benefit” for the loss of the right to fully recover non-economic damages. Sections 766.207 and 766.209 only limit a claimant’s right to recover non-economic damages after a defendant agrees to submit the claimant’s action to arbitration. The defendant’s offer to have damages determined by an arbitration panel provides the claimant with the opportunity to receive prompt recovery without the risk and uncertainty of litigation or having to prove fault in a civil trial. A defendant or the defendant’s insurer is required to conduct an investigation to determine the defendant’s liability within ninety days of receiving the claimant’s notice to initiate a malpractice claim. § 766.106(3)(a). Before the defendant may deny the claimant’s reasonable grounds for finding medical negligence, the defendant must provide a verified written medical expert opinion corroborating a lack of reasonable grounds to show a negligent injury. § 766.203(3)(b). The claimant benefits from the requirement that a defendant quickly determine the merit of any defenses and the extent of its liability. The claimant also saves the costs of attorney and expert witness fees which would be required to prove liability. Further, a claimant who accepts a defendant’s offer to have damages determined by an arbitration panel receives the additional benefits of: 1) the relaxed evidentiary standard for arbitration proceedings as set out by section 120.58, Florida Statutes (1989); 2) joint and several liability of multiple defendants in arbitration; 3) prompt payment of damages after the determination by the arbitration panel; 4) interest penalties against the defendant for failure to promptly pay the arbitration award; and 5) limited appellate review of the arbitration award requiring a showing of “manifest injustice.”
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Echarte, 689 So. 2d at 194. In other words, the Legislature envisioned that arbitration under the statute would give injured parties the right to a prompt resolution of their disputes because the defendant would have to admit liability. This in turn would save the injured party costs in the form of increased attorney’s fees and the expenditure of expert witness fees that would otherwise be required in order to prove liability.
        It is therefore clear from a full review of the Medical Malpractice Statute that the legislative quid pro quo for patients in exchange for both a substantial limitation on noneconomic damages to a maximum of $250,000 per incident and the right to a jury trial was that a defendant would be required to admit liability. This clearly expressed public policy in the statute, however, has been expressly contravened by the Financial Agreement in this case, which eviscerates statutory rights without providing the injured patient with any of the added benefits or incentives provided for by the Legislature. Further, by requiring arbitration without in turn requiring the counter-balance of the defendant admitting liability, the Financial Agreement undermines the public policy set forth in the statute of reducing attorney’s fees, litigation costs, and delay.
        The Financial Agreement in this case destroys the essence of the legislative scheme providing for arbitration and limiting damages along with an admission of liability, as well as the Legislature’s stated goal of providing a uniform and
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efficient procedure for the “prompt resolution of medical negligence claims.” § 766.201(2), Fla. Stat. (emphasis added). Because this Financial Agreement eviscerates the major benefit provided by the Legislature of requiring an admission of liability from the defendant, while still limiting the patient’s noneconomic damages, this Financial Agreement is contrary to public policy and is in express contravention of the arbitration provisions of the Medical Malpractice Statute. For all those reasons, I concur in the majority.
CANADY, J., dissenting.
        Because I conclude that the decision on review, Franks v. Bowers, 62 So. 3d 16 (Fla. 1st DCA 2011), does not expressly and directly conflict with University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), I would dismiss this case for lack of jurisdiction under article V, section 3(b)(3), of the Florida Constitution. On the merits, I conclude that there is no statutory basis for determining that the provisions of the Financial Agreement limiting non-economic damages violate public policy. On the contrary, it is the judicial invalidation of the Financial Agreement that is at odds with the public policy established by the Legislature.
I. Jurisdiction
        In Franks, the First District Court of Appeal considered whether a Financial Agreement between a patient and his doctor that provided for mandatory
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arbitration was contrary to public policy. After explaining that the voluntary arbitration provisions of chapter 766, Florida Statutes, “were enacted in response to a dramatic increase in the cost of medical malpractice insurance,” the First District concluded that the mandatory arbitration portion of the Financial Agreement did “not countermand the public policy reflected in Chapter 766, as applied to the claims presented in this case.” Franks, 62 So. 3d at 18. The First District reasoned that the Financial Agreement could be enforced because it did “not eliminate statutory rights which are essential in effectuating legislative intent” but instead “afford[ed] meaningful relief that was “consistent with the legislative purpose and the public policy which led to the enactment of the medical negligence provisions in Chapter 766.” Franks, 62 So. 3d at 18.
        Echarte involved a distinct legal issue. In Echarte, this Court rejected several challenges to sections 766.207 and 766.209, Florida Statutes (Supp. 1988)—which provided for voluntary arbitration and a noneconomic damages cap in medical malpractice claims—but “limit[ed] [its] discussion to the validity of the statutes under the right of access to the courts.” 618 So. 2d at 191. In its opinion, this Court considered only whether the voluntary arbitration and noneconomic damages provisions of sections 766.207 and 766.209 satisfied the access-to-courts test set out in Kluger v. White, 281 So. 2d 1 (Fla. 1973), and concluded that the statutes provided a commensurate benefit for the loss of the right to fully recover
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noneconomic damages and, alternatively, that the Legislature’s tort reform was justified by an “overpowering public necessity,” for which “no alternative method of meeting such public necessity [was] shown.” Echarte, 618 So. 2d at 195 (quoting Kluger, 281 So. 2d at 4).
        The legal issue addressed in Echarte was whether the Legislature could constitutionally alter or abolish a preexisting right of redress for a particular injury—not whether an individual could contract out of the statutory procedures enacted in chapter 766. This Court reviewed the constitutionality of a legislative solution to a public problem. This Court was not asked, however, to consider the public policy implications of individual patients and doctors privately negotiating stricter arbitration agreements on a case-by-case basis.
        A discussion of how the majority believes that Franks and Echarte conflict—and its resolution of that “conflict”—is noticeably absent from the majority opinion. Because Franks and Echarte address different legal issues, this Court does not have jurisdiction, and the case should be discharged. Accordingly, I dissent.
II. Merits
        On the merits, I disagree with the majority’s conclusion “that the Financial Agreement blatantly contravenes the intent provided by the Florida Legislature” in the Medical Malpractice Act (MMA). Majority op. at 12. The Financial
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Agreement undeniably furthers the general purpose articulated by the Legislature in the text of the statute. It is the majority’s decision that “blatantly contravenes” the legislative purpose not only of the MMA but also of the Florida Arbitration Code, §§ 682.01-.22, Fla. Stat. (2012).
        The statute at issue here is expressly designed to limit the expense associated with medical malpractice litigation. In the statutory declaration of legislative findings and intent, the Legislature made the following salient findings:
(a) Medical malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased medical care costs for most patients and functional unavailability of malpractice insurance for some physicians.
(b) The primary cause of increased medical malpractice liability insurance premiums has been the substantial increase in loss payments to claimants caused by tremendous increases in the amounts of paid claims.
(c) The average cost of a medical negligence claim has escalated in the past decade to the point where it has become imperative to control such cost in the interests of the public need for quality medical services.
(d) The high cost of medical negligence claims in the state can be substantially alleviated by requiring early determination of the merit of claims, by providing for early arbitration of claims, thereby reducing delay and attorney’s fees, and by imposing reasonable limitations on damages, while preserving the right of either party to have its case heard by a jury.
§ 766.201(1)(a)-(d), Fla. Stat. (2012) (emphasis added).
        By the enactment of the statute, the Legislature sought to address the mischief of the perceived excessive “loss payments to claimants caused by tremendous increases in the amounts of paid claims.” § 766.201(1)(b), Fla. Stat.
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(2012). To help remedy this mischief, the Legislature enacted measures to provide post-dispute incentives for arbitration and to prevent the filing of frivolous claims and defenses. Among the post-dispute incentives for arbitration was the provision for the conditional limitation on noneconomic damages whenever the defendant concedes liability. Nothing in the statute, however, prohibits voluntary pre-dispute agreements—outside the statutory framework—to arbitrate disputes or to impose limits on damages.2
        The majority reasons that “the concession of liability is one of the incentives provided by” the statute and that the “avoidance of the incentive contravenes the intent of the statute.” Majority op. at 14. The majority thus concludes that the pre-dispute Financial Agreement contravenes the statute because the Financial Agreement does not contain a concession of liability. This is incongruous. A post-dispute concession of liability may be a very reasonable “incentive,” but a pre-dispute concession of liability would be absurd. It is wholly unjustified to extrapolate from the post-dispute context addressed by the statute to impose restrictions in the dissimilar context of voluntary pre-dispute agreements.
        Nothing in the statute can be read to support the conclusion that the purpose of the statute is thwarted by voluntary pre-dispute agreements—such as the
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voluntary agreement invalidated by the majority here—designed to limit the cost of litigation and the amount of paid claims. Instead, such voluntary agreements are designed to cure the same mischief that the statute seeks to address. The Financial Agreement here unquestionably serves to advance the public policy embodied in the statute. The specific public policy of the MMA thus is antithetical to the majority’s decision. And the majority fails to cite any authority for a general public policy—either legislatively established or judicially recognized—prohibiting voluntary agreements limiting liability.
        There is an astonishing irony in the line of judicial reasoning that condemns as invalid a voluntary agreement designed to limit the expense of medical malpractice litigation and grounds that condemnation on the purpose of a statute expressly designed to limit the expense of medical malpractice litigation. The public policy that animates the Court’s decision here is an unprecedented judicial policy that contravenes the declared objective of the Legislature set forth in section 766.201.
        The majority’s decision also contravenes the public policy embodied in the Florida Arbitration Code, which provides as follows:
Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract with the failure or refusal to perform the whole or any part thereof.
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§ 682.02, Fla. Stat. (2012) (emphasis added). This broadly framed statutory right to enter both pre-dispute and post-dispute arbitration agreements is set aside by the majority’s decision on grounds that cannot withstand analysis.
        In the name of public policy, the majority thus strikes two blows against the public policy unambiguously established by the Florida Legislature. This decision validates the old observation that “public policy” is “a very unruly horse.” Story v. First Nat’l Bank & Trust Co., 156 So. 101, 103 (Fla. 1934) (citing Richardson v. Mellish, [1824] 130 Eng. Rep. 294, 303, 2 Bing. 229, 252). Here, public policy has kicked over the traces.
POLSTON, C.J. concurs.
Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions
        First District – Case No. 1D10-3078
        (Duval County)
Thomas S. Edwards and Eric C. Ragatz of Edwards & Ragatz, P.A., Jacksonville, Florida,
        for Petitioner
Kelly B. Mathis and Laurie M. Lee of Mathis & Murphy, P.A., Jacksonville, Florida,
        for Respondents
Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida,
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        for Amicus Curiae Florida Justice Association
Cynthia S. Tunniclif and Gerald Don Nelson Bryant IV of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, Florida,
        for Amici Curiae Florida Justice Reform Institute, Florida Medical Association, and Florida Osteopathic Medical Association
        1. . The Florida Arbitration Code (FAC), chapter 682, Florida Statutes, also provides for the enforcement of arbitration agreements. Chapter 682 applies only to the extent that it is not in conflict with federal law. See Powertel, Inc. v. Bexley, 743 So. 2d 570, 573 (Fla. 1st DCA 1999); Shearson/Lehman Brothers, Inc. v. Ordonez, 497 So. 2d 703 (Fla. 4th DCA 1986).
        2. For that matter—although the point is not at issue here and may be of no practical importance—nothing in the statute prohibits parties from entering voluntary post-dispute agreements to arbitrate or limit damages.



CASE NO. 1D12-3563
Opinion filed: February 28, 2013

An appeal from an order of the Judge of Compensation Claims.
Stephen L. Rosen, Judge.
Date of Accident: December 11, 2009.
Jason L. Fox of the Law Offices of Carlson & Meissner, Clearwater; Richard A. Sicking, Coral Gables, for Appellant.
John C. Wolfe, City Attorney, and Kimberly D. Proano, Assistant City Attorney, St. Petersburg, for Appellees City of St. Petersburg/City of St. Petersburg Risk Management; and Pamela Jo Bondi, Attorney General, Timothy D. Osterhaus, Solicitor General, Allen Winsor, Chief Deputy Solicitor General, Rachel E. Nordby, Deputy Solicitor General, Office of the Attorney General, Tallahassee, for Intervenor State of Florida.
        Bradley Westphal challenges an order denying his claim for permanent total disability benefits under the Florida Workers’ Compensation Law. Westphal
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also challenges the constitutionality of the current system of redress for workplace injuries found in chapter 440, Florida Statutes. We conclude and hold that section 440.15(2)(a), Florida Statutes (2009), is unconstitutional under article I, section 21, of the Florida Constitution, as applied to Westphal and others similarly situated, by limiting him to no more than 104 weeks of temporary disability benefits, despite the fact that he was at that time totally disabled, incapable of engaging in employment, and ineligible for any compensation under Florida’s Workers’ Compensation law for an indeterminate period. We reverse the order below and remand with instructions to grant Westphal additional temporary total disability payments, not to exceed 260 weeks, as would have been provided under the relevant statutory provisions in effect before the 1994 amendment of section 440.15(2)(a), Florida Statutes.
Facts and Procedural History
        Westphal, a firefighter and paramedic, injured his back and knee in the course of his employment. Westphal suffered severe injuries, resulting in nerve damage in the legs and requiring spine surgery and other medical treatment. The Employer/Carrier (E/C) accepted the injury as compensable and paid Westphal temporary total disability benefits under section 440.15(2)(a), Florida Statutes.
        While recovering from the most recent surgery, and while on a total disability status as declared by his workers’ compensation doctors, Westphal’s
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entitlement to the 104 weeks of temporary total disability benefits expired, as required by 440.15(2)(a).1 At this point, however, Westphal was incapable of working or obtaining employment, based on the advice of his doctors and the vocational experts that examined him. In an attempt to replace his pre-injury wages that he was losing because of his injuries, approximately $1,500 per week, Westphal, being some three years removed from his workplace accident, filed a claim for permanent total disability benefits—a classification of benefits available to workers who have a disability total in quality and permanent in duration. See § 440.15(1), Fla. Stat. (2009).
        Relying on the Court’s decision in Matrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011), the JCC properly denied Westphal’s request for permanent total disability benefits, finding that because Westphal had not reached maximum medical improvement, it was too speculative to determine whether he would remain totally disabled from a physical standpoint after his maximum medical improvement status was reached. As the JCC acknowledged,
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Westphal fell into the “statutory gap” for indemnity benefits: He could no longer receive temporary benefits, and he was not yet eligible for permanent total disability benefits, despite the undisputed severity of his injuries and his inability to obtain employment, which would involve disobeying medical advice. As we stated in Hadley: “[w]here, as here, the employee is not at [maximum medical improvement] at the expiration of the 104 weeks, there is the potential for a ‘gap’ in disability benefits because [temporary total disability] benefits cease by operation of law after 104 weeks and entitlement to [permanent total disability] benefits is generally not ripe until the employee reaches [maximum medical improvement].” Id. at 624.
        The gap in which Westphal fell is the same statutory gap we identified in Hadley, wherein we cited numerous cases in which this court has upheld the rule announced in City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998). In Oswald, we attempted to “ameliorate” this gap by allowing a severely injured worker to attempt to prove that he would ultimately be declared permanently and totally disabled, despite the fact that he was still recovering from his workplace injuries and still in need of additional medical treatment. Hadley, 78 So. 3d at 624.
        Otherwise, if the doctor chosen by the employer determines that the claimant is still improving medically, a severely injured worker has no legal right to obtain
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any other disability benefits. As we recognized in Hadley, the occurrence of a “statutory gap” in disability benefits for a severely injured worker has not been a rare circumstance, and we have adhered to the Oswald rule many times. Id. at 625-26 (“We have consistently applied the rule of law announced in Oswald over the past 13 years . . . .”).
        We now must answer a question not raised in Hadley, but noted by the dissenting opinion: Whether this “statutory gap” created under Florida’s Worker Compensation Law violates article I, section 21 of the Declaration of Rights in the Constitution of the State of Florida. See Hadley, 78 So. 3d at 634 (Van Nortwick, J., dissenting). We emphasize that the constitutionality of the 104-week limitation on temporary total disability benefits was not an issue in that case—the issue presented in Hadley was one of statutory interpretation relative to Hadley’s entitlement to permanent total disability benefits. See 78 So. 3d at 623 n.2. We now determine that Westphal is precisely the type of severely injured worker who has been denied access to courts and the constitutionally guaranteed right to the administration of justice without denial or delay, in violation of the Florida Constitution.
Standard of Review
        A determination concerning the constitutionality of a statute is a question of law reviewed de novo. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d
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925 (Fla. 1st DCA 2005). Here, we review that provision of the constitution that guarantees Westphal access to the courts, but in addition, also guarantees that he will receive justice without denial or delay: “[T]he Courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Art. I, § 21, Fla. Const. (emphasis added). To the extent possible, courts have a duty to construe a statute in such a way as to avoid conflict with the constitution. See The Fla. Bar v. Sibley, 995 So. 2d 346 (Fla. 2008), cert. denied, 555 U.S. 1188 (2009). If a statute may be construed in multiple ways, one of which is unconstitutional, courts should adopt the constitutional construction. See D.S. v. J.L., 18 So. 3d 1103 (Fla. 1st DCA 2009). In Hadley, this court, in an en banc decision, concluded that the proper interpretation of the statutory scheme now before us is not “susceptible” to another interpretation, specifically one which removes the “gap” in disability benefits for individuals situated such as Westphal. See 78 So. 3d at 626. We are bound by this conclusion, and thus our constitutional analysis today is based on this court’s interpretation of chapter 440 in Hadley.
        In conducting our constitutional analysis, we must look to the statutory law in place when this constitutional amendment to Florida’s organic law was adopted:
[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. s. 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to
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protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.
Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973).
        Thus, we look to the statutory remedies that would have been available to a similarly injured worker in 1968, when Florida’s electorate adopted both the right of access to the courts and the timely administration of justice in our organic law. We emphasize there are two different rights contained in the constitutional provision at issue: Both the right to enter the courthouse doors (or a reasonable alternative thereof), and, once inside, the right to the administration of justice “without sale, denial or delay.”
Discussion and Analysis
        As noted, Westphal was severely injured and disabled while performing his duty as a firefighter in 2009, but he was prohibited by law from suing his employer to recover any damages. Instead, under Florida law, Westphal was required to obtain any and all remedy for his injuries from the City, under the Florida Workers’ Compensation Law, codified in chapter 440, Florida Statutes.
        Under this law, the City—not Westphal—had the right to select and, if appropriate, de-select, the doctors who would treat his work-related injuries. Through this statutory system of recovery, the City had the right to meet and confer with their selected doctors without Westphal’s involvement, and obtain
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otherwise-confidential medical information—whether or not Westphal consented to such communications. And the City had the right to make decisions as to whether it would authorize the medical treatment recommended by the doctors of its choosing. For his part, Westphal, removed from his otherwise inherent right to select his medical providers and make unfettered decisions about his medical care, was required to follow the recommendations of the doctors authorized by his employer. Should he fail to do so, he risked losing entitlement to his workers’ compensation benefits, his only legal remedy.2
        As part of his medical care, Westphal required multiple surgical procedures, culminating in a five-level fusion of the lumbar spine. Under chapter 440, Westphal was then required to refrain from working and go without disability pay or wages—and wait. Westphal had to wait until the E/C’s authorized doctors opined that he had reached maximum medical improvement, with no guarantee that such a day would ever come. But, even once he fully recovered, Westphal could not, under normal circumstances, recover disability benefits for the indeterminate waiting period.
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        We hold that such a result cannot comport with any legal or natural notion of justice. It does not comport with a notion of legal justice, because it violates Westphal’s state constitutional right of access to courts, and it violates his right to the administration of justice “without . . . denial or delay,” under article I, section 21, of the Florida Constitution. This system of redress does not comport with any notion of natural justice, and its result is repugnant to fundamental fairness, because it relegates a severely injured worker to a legal twilight zone of economic and familial ruin.
        Addressing the concept of natural justice first, the Supreme Court of the United States has instructed that in analyzing the constitutionality of a workers’ compensation system, a court “cannot ignore” whether the arrangement is unreasonable “from the standpoint of natural justice.” See N.Y. Cent. R. Co. v. White, 243 U.S. 188, 202 (1917). In describing the “natural justice” that must be considered in determining the validity of a workers’ compensation scheme, the Court in White explained that it is not unreasonable to require an employer to bear the expense of an employee’s injury or death, because the employer benefits from the employee’s efforts and the employee is thereby subjected to the risks of the employer’s trade. Id. at 203-04. And although the employee subject to a workers’ compensation scheme must surrender his right to collect full damages that may be attributable to the fault of his employer, natural justice is not offended by a
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substitute system of redress because the employee is assured “easily ascertained compensation” under this alternate scheme. Id. at 204.
        The concept of fundamental or “natural” justice is not foreign to Florida jurisprudence. Article I, section 21, of the Florida Constitution guarantees that the “courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” At the core of this constitutional guarantee for redress of injury is a promise that “justice shall be administered”— but even more so, without denial or delay. Although reasonable debate might be had on whether a particular system for the redress of injury is sufficiently swift or adequate to meet the constitutional guarantees of article I, section 21, it should be beyond debate that, if a system of redress is so fundamentally unjust as to violate the very tenets of natural justice, it cannot pass constitutional muster.
        In accord, the Florida Supreme Court, in arriving at the proper test to be used to determine whether the Legislature can abolish a cause of action or a statutory right to redress for injury, held that the Legislature may do so, but it must provide a reasonable alternative to the right being removed or substituted. Kluger, 281 So. 2d at 4. This test, although addressing the reasonableness of the alternative means by which an injury might be redressed, is, of necessity, a recasting of the question of whether a substitute system of redress enacted by the Legislature is a just and adequate substitute for those rights available through
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statutory or common law existing upon the adoption of the Declaration of Rights of the Constitution of the State of Florida on November 5, 1968.3
        Hence, we turn to the rights available to an injured worker eligible for workers’ compensation benefits in 1968. On November 5, 1968, Florida statutory law provided an injured worker full medical benefits, a right to veto the carrier’s selection in physician, and notably, 350 weeks of temporary total disability benefits. §§ 440.13(1)-(2), .15(2), Fla. Stat. (1967). And at common law, in 1968, an individual with the right to sue in tort for injury could recover the full amount of his or her damages, including any lost wages and other non-economic damages, all without legislatively imposed restrictions—rights which are purportedly substituted, and definitely foreclosed, by the workers’ compensation system. See generally Smith v. Dep’t of Ins., 507 So. 2d 1080, 1087 (Fla. 1987). Here, Westphal has been deprived of substantial common law and statutory remedies, to the point where he is denied any disability payment, despite his unchallenged inability to work while he recovers from severe, life-altering injuries.
        In 1991, more than twenty years after Florida adopted the Declaration of Rights of the Constitution of the State of Florida, the Florida Legislature reduced injured workers’ available temporary total disability benefits from 350 to 260
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weeks, a reduction of two years, or 28.5%. See Ch. 91-1, § 18, at 58, Laws of Fla. In 1994, the Legislature again substantially amended chapter 440, and reduced the temporary total benefits available to an injured worker from 260 to 104 weeks, a 60% reduction from 1991 levels, and a 71% reduction when compared to the temporary total disability benefits available in 1968. See Ch. 93-415, § 20, at 118, Laws of Fla.
        Just as significantly in the 1994 Law, the Florida Legislature also removed a statutory provision that made it unlawful for an employer or carrier to “coerce or attempt to coerce a sick or injured employee in the selection of a physician . . . .” § 440.13(3), Fla. Stat. (1993). This statute gave employers and insurance carriers the nearly unfettered right to select treating physicians in workers’ compensation cases. See Butler v. Bay Center/Chubb Ins. Co., 947 So. 2d 570 (Fla. 1st DCA 2006) (explaining carrier’s right to select physicians under chapter 440). Under the law as amended in 1994—applicable here—temporary benefits “cease” at the termination of 104 weeks, regardless of the condition of the injured worker. See § 440.15(2)(a), Fla. Stat. (Supp. 1994). And, under this court’s decisional law, an injured worker who is totally disabled and still recovering from his or her injuries at the expiration of 104 weeks of temporary disability benefits is prohibited from obtaining permanent total disability benefits—even if he or she must refrain from working for an indefinite period of time on the advice of those doctors selected by
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the employer and its workers’ compensation carrier. See Hadley, 78 So. 3d at 622.
        Westphal has thus fallen into the class of workers’ compensation recipients who are unable to work but are not receiving any disability payments, because they have exhausted their entitlement to temporary benefits before they reached overall maximum medical improvement. In fact, Westphal spent nine months without receiving any disability payments before the E/C agreed that he was entitled to permanent total disability benefits.
        Here, we must review the dramatic reduction in temporary total disability benefits provided to severely injured workers in Florida in 1994, in context with 1968 law,4 and also in comparison with the laws of other states. This is necessary
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to evaluate both the legal and natural justice involved with such a change in the law.
        When the 104-week limit on Florida’s temporary total disability is compared to limits in other jurisdictions, it becomes readily apparent that the current limit is not adequate and does not comport with principles of natural justice.5 The
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overwhelming majority of jurisdictions—in excess of forty—allow a minimum of 312 weeks, three times the benefits provided to Florida’s injured workers, up to a maximum entitlement of unlimited duration (i.e., for the duration of disability). Only five jurisdictions limit disability benefits to 104 weeks, and one of those has enough exceptions to allow for the receipt of disability benefits for up to seven years. See Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, Appendix B, Table 6 (2006).
        But we do not end our analysis there. To ensure a fair and proper examination, we review the duration of temporary total disability benefits available in our sister states, as these states are more likely to face similar economic conditions. This examination reveals Florida to be even more significantly lacking in providing disability payments to severely injured workers, with two sister states
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imposing no limit to the payment of temporary total disability payments, and no state providing less than 400 weeks of this benefit. See Section 25-5-57, Alabama Workers’ Compensation Law (“This compensation [temporary total disability benefits] shall be paid during the time of the disability . . . .”); Code Section 34-9-261, Georgia Workers’ Compensation Law (“The weekly benefit under this Code section shall be payable for a maximum period of 400 weeks from the date of injury . . . .”); La. R. S. 23:1221(1)(a), Louisiana Workers’ Compensation Law (“For any injury producing temporary total disability [compensation shall be paid at the rate of] sixty-six and two-thirds percent of wages during the period of such disability.”); Section 71-3-17, Mississippi Workers’ Compensation Law (“In case of disability, total in character but temporary in quality, [benefits] shall be paid to the employee during the continuance of such disability not to exceed four hundred fifty (450) weeks . . . .”); G.S. 97-29(b), North Carolina Workers’ Compensation Act (“The employee shall not be entitled to compensation pursuant to this subsection [addressing temporary total disability] greater than 500 weeks from the date of first disability unless the employee qualifies for extended compensation under subsection (c) of this section.”); Section 42-9-10(A), South Carolina Workers’ Compensation Law (“In no case may the period covered by the compensation [for total incapacity for work resulting from an injury] exceed five hundred weeks except as provided in subsection (C) [addressing permanent total
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disability]”); T.C.A. 50-6-207, Tennessee Workers’ Compensation Law (providing for payment of temporary disability “during the period of the disability, not, however, beyond four hundred (400) weeks”) (emphasis added in all citations).
        Finally, we look to whether this case is an isolated example, and thus, inappropriate to consider as indicative of a systemic deprivation of justice. We find that our own decisions disprove such a conclusion. See Hadley, 78 So. 3d at 622 (explaining JCC denied claim for permanent total disability after claimant received 104 weeks of temporary benefits even though doctors opined claimant was totally disabled, not at MMI, and would need additional surgeries); see also East v. CVS Pharmacy, Inc., 51 So. 3d 516, 516-17 (Fla. 1st DCA 2010); Crum v. Richmond, 46 So. 3d 633, 636 (Fla. 1st DCA 2010); Fla. Transport 1982, Inc. v. Quintana, 1 So. 3d 388, 389-91 (Fla. 1st DCA 2009); Olmo v. Rehabcare Starmed/SRS, 930 So. 2d 789 (Fla. 1st DCA 2006); Rivendell of Ft. Walton v. Petway, 833 So. 2d 292 (Fla. 1st DCA 2002); Office Depot v. Sweikata, 737 So. 2d 1189, 1191-92 (Fla. 1st DCA 1999); Oswald, 710 So. 2d 95, 98 (Fla. 1st DCA 2011).
        This case illustrates a recurrent problem resulting from the 104-week limitation on temporary disability benefits enacted by the Legislature effective January 1, 1994—which limitation was carried over to the 2003 enactment at issue here. When an employee sustains serious injuries that require prolonged or
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complicated medical treatment, it is not unusual for that claimant to exhaust entitlement to 104 weeks of temporary disability benefits before reaching maximum medical improvement (the status of full medical recovery)— paradoxically leaving only seriously injured individuals without compensation for disability while under medical instructions to refrain from work that cannot be ignored lest a defense of medical non-compliance be raised.6 Although this result is anathema to the stated purposes of chapter 440, providing injured workers with prompt medical and indemnity benefits, this court has held on numerous occasions that an award of permanent total disability benefits is premature until an injured worker reaches the stage of full medical recovery. See Anderson & Padgett Sawmill v. Collins, 686 So. 2d 795, 796 (Fla. 1st DCA 1997).
        In Martinez v. Scanlan, 582 So. 2d 1167 (Fla. 1991), the Florida Supreme Court employed the Kluger test to address a challenge to the constitutional validity of the 1990 Workers’ Compensation Law. The supreme court struck the law on other grounds, but concluded that chapter 90-201, which reduced available benefits when compared to the predecessor act, was not constitutionally infirm because “[i]t continue[d] to provide injured workers with full medical care and wage-loss payments for total or partial disability . . . .” 582 So. 2d at 1172. We are now
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presented with a different iteration of the Workers’ Compensation Law from that addressed in Martinez—one which today provides an injured worker with limited medical care, no disability benefits beyond the 104-week period, and no wage-loss payments, full or otherwise.7 And, the lack of disability compensation occurs only because the severely injured worker has not reached maximum medical improvement as to the very injury for which redress is guaranteed under the Florida constitution.
        The natural consequence of such a system of legal redress is potential economic ruination of the injured worker, with all the terrible consequences that this portends for the worker and his or her family. A system of redress for injury that requires the injured worker to legally forego any and all common law right of recovery for full damages for an injury, and surrender himself or herself to a system which, whether by design or permissive incremental alteration, subjects the worker to the known conditions of personal ruination to collect his or her remedy, is not merely unfair, but is fundamentally and manifestly unjust. We therefore conclude that the 104-week limitation on temporary total disability benefits
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violates Florida’s constitutional guarantee that justice will be administered without denial or delay.
        Further, we hold that there is simply no public necessity, much less an overpowering one, that has been demonstrated to justify such a fundamentally unjust system of redress for injury. In fact, workers’ compensation insurance premiums have declined dramatically in Florida since 2003, falling 56%.8
        Thus, while it may be correct, as the Solicitor General noted in oral argument, that this decline in workers’ compensation insurance premiums attests to the effectiveness of reforms limiting benefits to injured workers, this fact would not support a claim of an overwhelming public necessity under article I, section 21, of the Florida Constitution to justify the draconian reduction of temporary total disability payments under Kluger v. White. Thus, the 104-week limitation is not
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an adequate substitute for the benefits provided to seriously injured workers in 1968, and no public necessity can justify the unjust nature of the system of redress available today.
Severability and Statutory Revival
        We must now decide whether chapter 440’s unconstitutional limitation on temporary total disability benefits renders the entire workers’ compensation system invalid, or whether this limitation can be severed from the Law. Severability is a judicial doctrine—”derived from the respect of the judiciary for the separation of powers”—which acknowledges the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions. See Fla. Dep’t of State, Div. of Elections v. Martin, 916 So. 2d 763, 773 (Fla. 2005); see also 10 Fla. Jur. 2d Constitutional Law § 123 (2003). “The portion of a statute that is declared unconstitutional will be severed if: ‘(1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other, and (4) an act complete in itself remains after the invalid provisions are stricken.'” State v. Catalano, 37 Fla. L. Weekly S763, S766 (Fla. Dec. 13, 2012) (quoting Lawnwood Med. Ctr., Inc. v.
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Seeger, 990 So. 2d 503, 518 (Fla. 2008)). If the legislative intent of the statute cannot be fulfilled absent the unconstitutional provision, the statute as a whole must be declared invalid. Martin, 916 So. 2d at 773. Applying the foregoing test, we hold that severing the 104-week limitation on temporary total disability benefits from chapter 440 is both permissible and necessary, because this limitation can be separated from the remainder of the Act, leaving a complete system of recovery suited to fulfill the express legislative intent contained in section 440.015, Florida Statutes.
        Having stricken on constitutional grounds the 104-week limitation on temporary total disability benefits, we now must decide whether the Workers’ Compensation Law shall proceed with no limitation on temporary total disability benefits, or whether another remedy can be achieved. Again, at the time of the 1968 adoption of the Declaration of Rights of the Constitution of the State of Florida, injured workers were permitted to recover 350 weeks of temporary total disability benefits. See § 440.15(2), Fla. Stat. (1967). Under the doctrine of judicial revival, “when the Legislature approves unconstitutional statutory language and simultaneously repeals its predecessor, then the judicial act of striking the new statutory language automatically revives the predecessor unless it, too, would be unconstitutional.” B.H. v. State, 645 So. 2d 987, 995 (Fla. 1994). This rule generally is applicable only where the loss of the invalid statutory
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language will result in an intolerable “hiatus” in the law. Id. In accordance with the foregoing, we hold that the limitation in the Act preceding the 1994 amendments to chapter 440 is revived. Thus, the limitation on temporary total disability benefits available to claimants is 260 weeks, as established in the last version of the Act that does not contain this invalid 104-week limitation, specifically, the Act as enacted on January 24, 1991. See § 440.15(2)(a), Fla. Stat. (1991); Ch. 91-1, § 18, at 58, Laws of Fla.
        This opinion shall have prospective application only, and shall not apply to rulings, adjudications, or proceedings that have become final prior to the date of this opinion. See generally Aldana v. Holub, 381 So. 2d 231, 238 (Fla. 1980) (holding statutory medical mediation procedure unconstitutional, but permitting prospective application only); Martinez, 582 So. 2d at 1176 (holding chapter 90-201 unconstitutional, but concluding that holding “shall operate prospectively only”).
        For the above reasons, we hold that section 440.15(2)(a), Florida Statutes, is unconstitutional as applied, to the extent that it limits entitlement to temporary total disability benefits to 104 weeks, and we revive the repealed portion of the statute to allow for entitlement temporary total disability benefits in an amount not to exceed 260 weeks.
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        1. According to the payout record attached to the pretrial stipulation, Westphal was paid impairment benefits totaling $14,917.50, translating to 26 weeks of benefits during the gap. Nevertheless, under section 440.15(3)(a), such benefits should not have been paid, in that this section provides “Once the employee has reached the date of maximum medical improvement, impairment benefits are due and payable . . . .” (Emphasis added.) And, as noted, Westphal had not reached maximum medical improvement before the expiration of his temporary total disability benefits.
        2. See Lobnitz v. Orange Mem’l Hosp., 126 So. 2d 739 (Fla. 1961) (reversing award of compensation for period when claimant declined available medical treatment which would have ameliorated skin condition); see also Sultan & Chera Corp. v. Fallas, 59 So. 2d 535, 537 (Fla. 1952) (“There can be no question that an injured employee will be denied compensation because of some disability which may be removed, or modified, by an operation of a simple character not involving serious suffering or danger of death.”).
        3. The Florida Supreme Court has clarified that the “adoption of the Declaration of Rights” referred to in Kluger refers to the November 5, 1968, adoption of the Florida Constitution. See Eller v. Shova, 630 So. 2d 537, 542 n.4 (Fla. 1993).
        4. The State argues that because the 1968 version of the Workers’ Compensation Law limited weekly temporary total disability benefit payments to $49, Westphal cannot maintain a constitutional challenge to the benefits currently provided under the law. Thus, argues the State, Westphal has recovered more money than he would have under the 1968 Act. The State’s argument in this regard ignores the inflationary factors that explain the difference in amount of the benefits available in 1968 and those currently permitted by statute. In addition, this argument fails to acknowledge that the core function of the workers’ compensation remedy is to replace wages for the individual who has been injured. See Nat’l Distillers v. Guthrie, 473 So. 2d 806, 808 (Fla. 1st DCA 1985) (“The workers’ compensation statute is designed to replace actual wages which an injured employee formerly received but later lost by reason of a compensable injury.”). In workers’ compensation jurisprudence, the compensation rate, the weekly benefit amount payable for disability, has always been a product of the injured worker’s average weekly wage, limited by the statewide average weekly wage for the year in which the injury occurred. See § 440.12, Fla. Stat. Thus, a reference to the dollar amount of benefits that an injured worker such as Westphal would have received in 1968 is insufficient to answer the question before us, as it can be said with near certainty that Westphal, or another similarly situated injured employee, would not have been earning $1,500 a week in wages in 1968; had he been, however, another substantial issue would likely arise as to whether $49 a week would constitute adequate redress for his injuries. Notably, however, the constitutionality of the limitation on the weekly rate of compensation as provided in section 440.12(2) is not before us. Furthermore, more than forty years ago, the Florida Supreme Court in Thompson v. Florida Industrial Commission, 224 So. 2d 286, 287 (Fla. 1969), recognized the inadequacy of even a 350-week limitation on temporary total disability benefits. The Thompson court, which did not address the constitutional issue presented here, implicitly advised that this shortcoming should be remedied by the Legislature. Id. Rather than heed the recommendation in Thompson, the Legislature cut back temporary disability benefits, exacerbating the “inadequacy” acknowledged in Thompson, and thus, creating the system we now review on constitutional grounds.
        5. The State’s brief urges that the reduction in a single classification of benefits (or damages) cannot, presumably under any circumstances, invalidate the constitutionality of the workers’ compensation scheme, because there is a right to some recovery by the injured worker under chapter 440. In Smith, the Florida Supreme Court rejected a similar argument, and struck and severed a statutory cap on non-economic damages from the Tort Reform and Insurance Act of 1986, reasoning, in relevant part, as follows:
[I]f the legislature may constitutionally cap recovery at $450,000, there is no discernible reason why it could not cap the recovery at some other figure, perhaps $50,000, or $1,000, or even $1. None of these caps, under the reasoning of appellees, would “totally” abolish the right of access to the courts. . . . There are political systems where constitutional rights are subordinated to the power of the executive or legislative branches, but ours is not such a system.
507 So. 2d at 1089. We note that the State’s argument in this regard is contrary to the doctrine of severability (discussed infra). The State seems to suggest that no severable portion of the workers’ compensation scheme may be struck on constitutional grounds or on an as-applied basis, so long as the Act is generally fair to other injured workers. This argument seems to reduce an individual’s constitutionally guaranteed right of access to the courts for the redress of any injury and to the administration of justice, to something other than the individual right that it is. See Art. I, § 21, Fla. Const. (“[T]he Courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”) (emphasis added); see generally Holland v. Mayes, 19 So. 2d 709, 711 (Fla. 1944) (interpreting right to access to courts contained in Declaration of Rights as giving “life and vitality” to the maxim “for every wrong there is a remedy”).
        6. See Lobnitz, 126 So. 2d at 739 (reversing compensation award for period when claimant declined available medical treatment which would have ameliorated skin condition).
        7. Under the 1991 Act, wage-loss benefits were payable to an injured worker who had achieved the status of maximum medical improvement to compensate the worker for an injury that was permanent in duration and partial in quality. See § 440.15(3)(b), Fla. Stat. (1991). The amendments to chapter 440, effective October 1, 2003, removed the availability of such benefits. See § 440.15(3), Fla. Stat. (2003).
        8. Florida Insurance Commissioner Kevin McCarty approved a 6.1% workers’ compensation insurance rate increase, effective January 1, 2013, but noted that “[e]ven with this increase, Florida’s rates are still 56 percent below the rates prior to the 2003 reforms, and are competitive with other states nationally.” See Florida Office of Insurance Regulation, 2012 Workers’ Compensation Annual Report, 3 (Dec. 2012), According to the 2012 Annual Report mandated by section 627.211(6), Florida Statutes, “Based on a comparative analysis across a variety of economic measures, the worker’s compensation market in Florida is competitive.” Id. (emphasis added). Looking historically, according to the Annual Report issued in 2001, “[c]omparison of cumulative rate changes since 1978 between Florida and the nation as a whole highlights the volatility of state rates. . . . Across all years, however Florida’s rates have remained lower relative to 1978 than national rates.” See Division of Workers’ Compensation, 2001 Annual Report, 70 (2001), (then click on “Annual Reports” and scroll down to “2001 Annual Reports”).


Motorcyclist Killed on I-75

Motorcyclist killed on I-75 today;
A tragic motorcycle accident occurred today involving a motorcyclist. TV 20 reports the driver was killed after he overtook a pickup truck striking the rear and being thrown off, landing in the path of a semi-tractor trailer. Motorcyclist, and scooter drivers need to take special care out there. I’m not sure why you sometimes get overlooked, or just flat out shown disrespect for your rights but it happens. Helmets help even if the take away from the riding experience. I have had a motorcycle and laid it down twice. These events happen in a split second. If you find yourself injured in a motorcycle accident call a former rider for help.

Car on bicycle accidents increasing

Bicycles on the roadway are by law vehicles with the same rights and responsibilities of all motorized vehicles used on our roadways. Recent statistics obtained by the National Highway Traffic Safety Administration (“NHTSA”) indicate that there were 618 fatalities in bicycle-motor vehicle crashes in the U.S. These numbers represent just under 2% of the total number of people killed in traffic crashes in 2010.

In 2010 there were at least 52,000 injuries reported, but this is only a fraction of the bicycle crashes causing injuries recorded by police. Many injuries go unreported. It is estimated that 52,000 is only 10% of the total injuries sustained in bike-vehicle crashes. The total cost of bicycle injuries and death is over $4,000,000,000 per year per the National Safety Council.[1]

Clearly this is a very high percentage of fatalities, when you consider that bicycle trips account for only 1% of all the trips in traffic in the United States. So bicycle accidents seem to be overpresented in the injury crash data as they account for almost 2% of the fatalities but only 1% of the trips. On the other hand we do not know how many miles bicyclists travel each year and we don’t know how long it takes them to cover these miles; in other words, how long they are exposed to motor vehicle traffic. Other unknown variables include exposure by time of day (with nighttime being more risky), the experience of the rider, the location of the riding and alcohol use. Many of these factors and exposure measures have not been determined; and, therefore, the organizations studying bicycle risk has to make certain assumptions to come to any conclusion.

The National Highway Transportation Safety Association (“NHTSA”) has made an effort to determine the age, gender and location of bicycle crash victims. During its last study which was in 2009, the average age of bicyclists killed in crashes with motor vehicles was 41 years, up from 32 years of age in 1998 and 24 years old in 1988. [87% of those killed were male and 64% of those killed were between the ages of 25 and 64.] It is clear that in the last 10 years the cycling demographics have changed dramatically. The study has determined that of the riders “in town” very few are children and teenagers. Today in town traffic bike riders are adults and often delivery men and women.

Automobile Insurance in Florida; landscape may be changing

Stay tuned to the Leon County Circuit Court case of Robin Myers et al vs. Kevin McCarty Florida Insurance commissioner. This case is at a preliminary stage but the first round goes to the Florida consumer. Myers is a message therapist who along with other professionals affected by the latest revisions to Florida’s no fault auto insurance laws, widely known as Personal injury protection (PIP) have sued the State to prevent enforcement of this law. Judge Terry Lewis in Tallahassee has entered a temporary injunction and stated that it is his belief that with the current changes, Florida’s PIP law is no longer a “reasonable alternative” to Article I, Section 21 of Florida’s Constitution. That’s technical legal speak for his finding that the law prevents peoples access to courts. The state of Florida has asked for a
delay in enforcing the injunction until the case can be argued before an appellate court. Hearings will be held to determine if the temporary injunction should remain or be postponed until the appellate courts decide the case.
The statute in question prohibited the type of medical treatment a person could seek for an injury suffered in an auto accident. The law also required that the injured person seek treatment only for “emergency medical conditions.”
Clients often report to me that the symptoms of whiplash are not felt right away or that they increase over night or that even when they are felt right away these symptoms are not the type that make someone feel the need to go to an emergency room and wait for treatment. The statute greatly favored urgent care type facilities and disfavored chiropractic care and message therapist. Again, my clients report chiropractors, message therapist, and acupuncturist have offered them the most relief from their symptoms. Chiropractors, acupuncturist and message therapist understand the nature of these injuries and are most interested in offering the treatments universally accepted in the medical community for them. Coincidentally these providers in my experience are the most reasonably priced among the options.
The latest revisions of the law do not benefit the great majority of people with injuries following automobile accidents. These people typically get better with the help and medical guidance from chiropractors, acupuncturist, and message therapist. They are not interested in suing the other driver. They just want to get back to work and to feeling like they did before the auto accident. The old law allowed for that. If you have been denied PIP benefits call me, you might have a claim I can help with.

Interstate Highway accidents/wrongful deaths

Over the weekend a college soccer player where my son goes to school was killed in an automobile accident on the interstate highway. Her passenger was killed too. These two wrongful deaths were caused by a drunk driver who survived the crash. The urge to “make some sense” out of these car accidents and the resulting deaths is unstoppable for everyone close to these young women. For folks not close to these families the accident and deaths is a sad warning of how dangerous driving can be, but gives little more pause for reflection.
I encourage everyone to reflect on these situations a little more if for no other reason to make yourself a little safer. These families may make a financial recovery, and the negligent driver will likely spend a good deal of time in prison for DUI manslaughter. Perhaps the place that sold the alcohol can be made partially responsible. Many in the public rail away and criticize our negligence law system. Does anyone doubt that a bar might have some responsibility to watch drunken patrons go to parking lots, get in cars and onto the interstate. Who doesn’t think that a bar having to pay a significant financial judgement would encourage the bar that is making so much money off the drunk to at least take some measure to discourage their customer from hopping on the interstate in a dangerous instrumentality- a car?