Under The Law, Rescuing A Pet Is Not The Same As Rescuing A Person

The Superior Court of New Jersey, Appellate Division, recently addressed whether rescuing a pet (or a person’s property) manifests the same protection afforded to a person under the “rescue doctrine.”  See Ann Samolyk, et al. v. Dorothy Berthe, III, et al., No. A-3431-19, 2021 N.J. Super Unpub. LEXIS (App. Div. June 2, 2021).  Although pets are an important part of one’s family and strong emotional ties develop, the law identifies pets as property owned by an individual and the State of New Jersey, unlike several other states, does not extend the protections of the “rescue doctrine” to a person who chooses to rescue imperiled property due to the negligence of a defendant; simply, a plaintiff cannot obtain recovery under the “rescue doctrine” when the plaintiff seeks to “rescue” imperiled property or an imperiled pet.

The record in Samolyk, is limited to only written discovery before the trial judge required to file dispositive motions before proceeding to oral or expert discovery.  Nonetheless, the plaintiff allegedly sustained injuries—namely a debilitating brain injury— when the plaintiff attempted to rescue the defendants’ dog, which fell into a canal and needed help, by jumping into the canal after the dog; the plaintiff responded when the defendants’ called for help.  During the rescue attempt of defendants’ dog, the defendants called for emergency services because plaintiff needed assistant.  When the police arrived, plaintiff was laying unconscious on the dock with emergency services performing CPR, and when plaintiff regained consciousness, she was transported to the hospital. 

Defendants filed a Motion for Summary Judgment arguing that the protections of the rescue doctrine do not apply for people seeking to rescue imperiled property (i.e., pets) and without the rescue doctrine, no causal connection between the conduct of defendants’ pet and plaintiff’s actions exist.  In response, plaintiff cross-moved for Summary Judgment for negligently placing their property in danger which “invited the risk” of plaintiff to save defendants’ dog.  Ultimately, the trial court denied plaintiff’s Motion for Summary Judgment and granted defendants’ Motion for Summary Judgment; the plaintiff appealed whereby the Court affirmed the trial court’s decision.

Generally, New Jersey recognizes the rescue doctrine which originated “as a response to the argument that one who rushed into danger” is contributorily negligent for his injuries and therefore barred from recovery; however, a rescuer is permitted to maintain a cause of action against the person whose negligence placed the victim in danger.  See Samolyk at Slip Op. 6-7. When New Jersey Courts have only applied the rescue doctrine, it was always applied when a person was injured attempting to rescue another person and not property.  Despite other states and jurisdictions permitting a plaintiff’s cause of action under the rescue doctrine against defendants’ who negligently place their property in peril to proceed, New Jersey Courts fail to do likewise; New Jersey Courts have never applied the rescue doctrine, and continue to not apply it, to cases involving imperiled property.

From a defense perspective, Samolyk teaches us that while other states may choose to extend certain protections, the importance of a state’s legal interpretations matter most; a strong stance from the state as expressed in prior cases and prior legislative intent will affect the outcome of an action.  Even through the Court in Samolyk acknowledged the plaintiff’s efforts to extend New Jersey’s interpretation of the rescue doctrine for injuries sustained during a rescue of imperiled property, the Court agreed with the defendants’ position that the Court’s past precedence does not permit recovery for injuries sustained during a rescue of imperiled property, even when the imperiled property is a loved pet.  Therefore, a defendant’s familiarity with a Court’s prior rulings and a state’s legislative intent on specific issues, which may differ in other states, is imperative to defending an action at all stages of a litigation.

A Pivotal Change May Be Coming to Florida’s Collateral Source Rule

A major change may be coming to Florida’s Collateral Source Rule, as we know it.  When being used to determine the amount of damages a plaintiff is entitled to recover in a personal injury case, the Collateral Source Rule, at its core, reduces a plaintiff’s recovery for medical expenses by the total of all amounts which have been paid by a collateral source for the benefit of the plaintiff.  Additionally, in its function as an evidentiary rule, it has served to limit the amount of medical expenses that may be “boarded” in certain cases, such as in the case of government-paid benefits like Medicare or Medicaid. 

It is well-known that medical expenses paid by Medicare or Medicaid are often deeply discounted due to significant adjustments that are applied by the medical provider.  Florida law has, for many years, limited plaintiffs to admitting or “boarding” at trial only the net amounts that Medicare or Medicaid paid the plaintiff’s medical providers in satisfaction of the plaintiff's medical expenses.  See Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003).  By contrast, amounts paid under private health insurance are generally permitted to be boarded in the full, gross amount of the charges, and any adjustments to the past medical expenses are then set-off from the verdict amount by post-trial motion.  For personal injury defendants, the Thyssenkrupp limitation has been favorable because it has limited the amount of past medical expenses the plaintiff can demand from the jury, and that may translate to lower awards for other categories of damages, such as future medical expenses or past and future pain and suffering. 

In 2015, in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), the Florida Supreme Court held that “when a provider charges for medical service or products and later accepts a lesser sum in full satisfaction by Medicare, the original charge becomes irrelevant because it does not tend to prove that the claimant has suffered any loss by reason of the charge.” This ruling expanded on the Collateral Source Rule, by prohibiting the introduction of Medicare benefits as evidence in a personal injury case for the jury’s consideration of future medical expenses.  Since Joerg, plaintiffs in Florida have sought to use the decision’s rationale to further erode the Collateral Source Rule and have often argued that the Florida Supreme Court intended to abandon the Thyssenkrupp exception for Medicare and Medicaid benefits and, as a result, unadjusted Medicare- or Medicaid-paid expenses should be admitted at trial.  Recently, one appellate court considering the issue held that Joerg did not go so far, with respect to past medical expenses, but that Thyssenkrupp, a Florida Fourth District Court of Appeal decision, did not bind the trial courts in its district.  See Dial v. Calusa Palms Master Ass'n, Inc., 308 So. 3d 690 (Fla. 2d DCA 2020).   

On May 19, 2021, in the case of Gulfstream Park Racing Association, Inc. v. Volin, the Fourth District Court of Appeal certified the following question to the Florida Supreme Court as a question of great public importance: 

Does the holding in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), prohibiting the introduction of evidence of Medicare benefits in a personal injury case for purposes of a jury's consideration of future medical expenses also apply to past medical expenses?

Gulfstream Park Racing Association, Inc., d/b/a Gulfstream Park Racing and Casino v. Volin, 46 Fla. L. Weekly D1146a (4th District. Case No. 4D19-3471; Opinion: May 19, 2021).  Volin arose from a Seventeenth Judicial Circuit case in Broward County.  The plaintiff, Margret Volin, sued Gulfstream Park Racing Association, Inc. for personal injuries.  Gulfstream moved to prevent Volin from introducing the gross amount of her past medical expenses into evidence at trial.  The trial court denied the motion based on Volin’s argument that, under Joerg, she could introduce the gross amount of her past medical expenses, even if Medicare satisfied her them for a lesser amount. Gulfstream argued that Medicare's satisfaction of the debt for a lesser amount rendered the gross amount billed inadmissible, citing Thyssenkrupp, which held that “it is error to admit the gross amount of a plaintiff's medical bills if Medicare paid their medical providers a lesser amount in full satisfaction of the plaintiff's medical expenses.” Volin contended that, by extension, the Florida Supreme Court’s Joerg decision “implicitly overruled” Thyssenkrupp.

By certifying the question to the Florida Supreme Court, this suggests a departure by the Fourth District from its prior decision in Thyssenkrupp.  Should the Florida Supreme Court consider and answer the certified question, this will provide greater clarity on the admissibility of past medical expenses paid by Medicare and Medicaid throughout the state.  Potentially, this will result in an acceptance or rejection of the Fourth District’s rationale in Thyssenkrupp by Florida’s highest court.  If the gross amounts of past medical expenses are held to be admissible in Medicare and Medicaid cases, that could mean in increase in potential exposure in those cases.  We will continue to follow and report on this significant case and issue as it continues along the appellate process.

Understanding Florida’s Push to End No Fault Auto Insurance System

In Florida, Personal Injury Protection (“PIP”), or “No-Fault” automobile insurance, is a requirement for all drivers to carry. PIP covers expenses accrued as a result of injuries sustained in an accident, irrespective of who was at fault. Similar to other states, Florida has its own set of special laws and regulations surrounding PIP. Specifically, approximately 80% of one’s medical costs will be covered by PIP and, additionally, should the injury not be classified as an emergency, the injured party is only entitled to $2,500.00 worth of benefits.

In recent days, however, the Florida legislature has taken steps that could spell the end of the State’s no-fault auto insurance rules. Specifically, Senate Bill 54 would create a new framework to govern motor vehicle claims handling and third-party bad faith failure to settle actions against motor vehicle insurance carriers. The Senate previously passed it, and on April 30th, 2021, the House and Senate approved Senate Bill 54 in a 99-11 vote. If the bill is signed by Governor DeSantis, as it is expected to, it would take effect on January 1, 2022.

Under the new law, personal injury protection coverage and the no-fault provision would be discontinued. Florida drivers will instead be required to carry at least $25,000 in bodily injury coverage for the injury or death of one person, and $50,000 in coverage for the injury or death of two or more people. The insurance for the person at fault in the accident would be responsible for paying the claims. The reasoning behind this drastic move is that the discontinuation of no-fault insurance will stabilize and control Florida’s auto insurance rates. Notably, the Tampa Bay Times has recently reported that approximately 35% to 45% of Florida drivers currently do not carry $25,000 in bodily injury coverage.

The new bill, however, has been met with great trepidation from insurers who believe the bill will backfire. Specifically, some insurers argue that one of the reasons for the large auto insurance coverage gap in Florida is because the insurance is prohibitively expensive. Thus, if the minimum coverage requirement is raised, it may cause more drivers to drop coverage all together. Currently, Florida’s uninsured motorist rate rests at 20%, Low-income and underinsured drivers may be unable to purchase the higher amounts of coverage.

Callahan & Fusco will continue to monitor the progress of this proposed legislation.        

Volunteer at Work-Related Event Compensable under the Workers’ Compensation Act

Recently, in Kim Goulding v. NJ Friendship House, Inc., 245 N.J. 157 (2021), the Supreme Court of New Jersey considered whether an employee injured while volunteering at a “social or recreational event” can receive workers’ compensation benefits.

In September of 2017, Kim Goulding, an employee of North Jersey Friendship House, Inc. (“Friendship House”), volunteered for a “Family Fun Day.” Goulding assisted by setting up breakfast and preparing lunch for the attendees. As she prepared lunch, she stepped into a pothole and injured her ankle. Goulding filed a workers’ compensation claim which was denied by Friendship House. Friendship House stated Goulding was not entitled to relief because she was not working at the time. The Appellate Court sustained the decision, and the Supreme Court of New Jersey took the matter under review.

Generally, under the Workers’ Compensation Act, an employee injured during a social or recreational activity cannot receive workers’ compensation benefits for injuries sustained during such activity. This general rule, however, has expressly permitted an exception under N.J.S.A. 34:15-7 such that, “when such recreational or social activities [1] are regular incident of employment and [2] produce a benefit to the employer beyond improvement in employee health and morale” the injury is compensable. Ultimately, the Supreme Court reversed the lower court’s decision and held Goulding was entitled to workers’ compensation benefits.  The Supreme Court first addressed whether application of the exception was appropriate within the meaning of the statute. Specifically, it analyzed whether Goulding’s activities at the event were “social or recreational.” The Court found the lower courts erred by looking at the event as a whole and that “[i]f the employee is helping to facilitate the activity in the manner that occurred here, the event cannot be deemed a social or recreational activity as to that employee, and any injuries sustained by the employee while acting in that capacity should be compensated.” New Jersey has long held that when an employee is mandated to perform tasks outside of the workplace and then injured, the injury is compensable. However, “determination of whether a noncompulsory activity is a recreational or social activity within the meaning of the statute thus remains a fact intensive and case-specific inquiry.” In this case, despite the fact that Goulding volunteered, her activities at the event were not recreational or social and to disqualify her compensability because volunteered “ignores that the Act is supposed to be construed liberally in favor of compensation, and it fails to consider the employee's role in the activity.” Alternatively, even if such activity was “social or recreational,” the Court found that Goulding’s role at the event satisfied both prongs under N.J.S.A. 34:15-7. As to the first prong, the Court held that she would not have attended the event and would not have been injured but for the Friendship Houses request for volunteers. Friendship House maintained complete control over the event and was actively involved, therefore, the volunteer activity was a regular incident of employment. The Court also found Goulding satisfied the second prong as there was to be no evidence Goulding benefited as to “health and morale.” In fact, the Court found Friendship House was the beneficiary, “Friendship House received the ‘intangible benefits’ of promoting itself and fostering goodwill in the community.”

From a defense perspective, as an employee’s sole remedy for injuries sustained during the course of their employment is workers’ compensation, the Act is liberally construed, and employers may be responsible for injuries sustained when an employee volunteers at an event outside of their normal course.        

On Appeal, Connecticut Supreme Court Finds Sufficient Plaintiff's Objection to Jury Instruction, Trumping General Verdict Rule

The plaintiff, Ussbasy Garcia, sought to recover damages for personal injuries sustained when she slipped and fell on a staircase outside of her apartment building. Garcia v. Cohen, 335 Conn. 3, 225 A.3d 653, 2020 Conn. LEXIS 69.  Plaintiff claimed that the defendants were negligent in failing to keep the steps of the staircase free of dirt and sand and by allowing the surface to become pitted, worn and uneven.  Defendants raised the Special Defense of contributory negligence, stating that it had delegated tasks, such as snow removal, to a third party.  At trial, the Court declined to instruct the jury on the nondelegable duty to maintain doctrine or to submit plaintiff’s proposed interrogatories referring to same.  A verdict was returned for the defendants and the plaintiff appealed the Court’s decision as to jury instruction.

The case was appealed and eventually reached the Connecticut Supreme Court.  The Supreme Court disagreed with the lower courts that the “General Verdict Rule” barred review of the issue and that another independent error needed to be established to overturn the jury’s verdict. 

Under the general verdict rule, if a jury renders a general verdict for one party, and [the party raising a claim of error did not request] interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party….Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall….Id. at 10-11.

According to the Court, the claims of negligence and contributory negligence are so intertwined with the plaintiff’s nondelegable duty charge claim on appeal that the Rule does not bar the review of this issue.  The Court found sufficient that plaintiff’s submission of interrogatories and her objection upon the court’s refusal to submit them to the jury as a defense to the application of the general verdict rule, not requiring an independent claim of error. Id at 6.

Additionally, the Court found that the plaintiff renewed her objection to the court’s denial of her request to submit her proposed interrogatories to the jury after the court had charged the jury on the applicable law.  The Court cited evidence that plaintiff filed her interrogatories; addressed the court’s decision not to submit them to the jury on the record; and raised her objection again after the court had charged the jury on the applicable law. See Id. at 28.

Analyzing this decision, the Court has reinforced its principal that formal objections to the court’s procedure as to charges to the jury are not necessary.  As long as the record is clear as to the party’s position on appeal, the objection is preserved for review by the subsequent appellate court, making the general verdict rule inapplicable in those instances.  Therefore, it emphasizes the importance of a clear record at trial, even if a party does not necessarily utter the words “I object” during the proceedings.       

Amendment 10 to Administrative Order AOSC20-23

The Florida Supreme Court recently passed Amendment 10 to Administrative Order AOSC20-23 regarding Comprehensive Covid-19 Emergency Measures for Florida Trial Courts.  The totality of this Order regards the way the Covid-19 pandemic has been handled by the judicial court dating back to March 2020.  Amendment 10 creates a new Section III.G.(1) which is pertinent to all attorneys practicing in Florida.  The new amendment is titled “Case Management and Resolution.”  The purpose of this amendment is to maximize resolution of cases, due in part to the continued backlog of cases during the Covid-19 pandemic.

The Chief Judges are instructed to issue an administrative order applicable to each county within the Judicial Circuit, which will take place on April 30, 2021.  The administrative order passed in each judicial circuit shall require the presiding judge for each civil case, as defined by the Florida Rules of Civil Procedure, to actively manage civil cases as specified.

First, Amendment 10 requires a review of each civil case to determine whether the case is complex (provided by Fla. R. Civ. P. 1.201), streamlined (based on criteria specified in the administrative order), or general (all other civil cases).   TThe presiding judge is required to issue a case management order for each streamlined and general civil case that, at a minimum, specifies deadlines commonly associated with Case Management Orders.  Of note the Case Management Order is required to specify the projected date of trial and indicate that the deadlines established will be strictly enforced by the court. 

Second, the issuance of Case Management Orders applies to all civil cases.  Of note, any cases filed after April 30, 2021, a Case Management Order shall be issued within 30 days of service of the Complaint on the last of all named defendants.  Cases filed before April 30, 2021 the Case Management Order shall be issued within 30 days of service of the Complaint on the last of all named defendants or by May 28, 2021, whichever date is later. 

Thirdly, the maximum period of time allowed for case management deadlines will be differentiated on whether the case is defined as streamlined or general.  The most important thing to note is that all judges are directed to strictly comply with the Florida Rules and court ordered deadlines determined in the Case Management Order to conclude litigation as soon as it is reasonably and justly possible to do so.  The Amendment recommends that continuances only be allowed for good cause shown.

Following a hearing with the Broward County Chief Judge, the Chief Judge believes the impact of Amendment 10 will be substantial.  He stated that every civil case will be reviewed, and old cases are going to be set for trial in the fall.  He also noted that lawyers should not expect continuances to be granted after the April 30, 2021 deadline. 

This Order will have a huge impact on litigation in Florida.  Cases, especially older cases, will get set for trial whether they are ready or not.  Judges will have a firm expectation that cases are prepared and efficiently moved toward resolution.  This expectation can put added pressure on both sides to reach a reasonable settlement.  It is anticipated that, county by county, Administrative Orders will put added pressure on plaintiff’s firms that intend to take their time preparing a case and firms that continue to push unreasonable demand numbers.