AEB 4085 Exam 3 Review

As a basis for awards determination, claimants are typically paid ____ of their average weekly wage (AWW), but must have ___ weeks of earnings prior to the date of injury (DOI) for payments to be awarded.

"2/3" & "10."

Injured workers have ___ days to report an injury to their employer, & after this time allotment, the case is ___ & no ___ can be awarded.

"30," "disbanned," & "benefit."

In the practice of law, most overhead amounts to ___-___% of the total legal fees.

"45-50%."

In the case of temporary partial disability, ___% of the claimant's average weekly wage (___) is awarded.

"64%" & "AWW."

A federal employee will be protected by the ___ Tort Claims Act; whereas a Florida state employee will be protected by the ___ Tort Claims Act (___ of sovereign immunity).

"Federal;" "Florida," & "waiver."

In reference to the press, if it doesn't ___, it doesn't ___.

"bleed" & "lead."

The Equine Immunity Statutes (EIS) does not provide ___ ___ for equine owners or sponsors, but does provide protections.

"complete immunity."

Punitive damages are awarded when the defendant ___ the ___ & ___ of another person or persons; an exception exists, however, in the case where at the time of the act or omission, the defendant was ___.

"disregards," "rights," "safety;" & "intoxicated."

The core of a sound risk management program is ___; however, it is an element & not a ___ for a total risk management program.

"insurance," & "substitute."

In the case of a partnership, partners are ___ for one another's actions; however, in the case of a joint venture, each person is ___ liable for the tortious acts of the other only if committed within the ___ of the ___.

"liable;" "vicariously," "scope," & "project."

In the case of employers of the injured person, historically, the "___" had a property interest in the services of their "___" ("____-____" relationship) today reflected in the doctrine of ___ ___.

"master," "servant," "master-servant," & "respondiat superior."

Both the Federal Tort Claims Act (FTCA) & the Florida Tort Claims Act generally limit ___ liability; however, they do not provide liability protections if the employee acts in ___ faith or with a malicious or ___ intent ___ of the realm of employment.

"personal;" "bad," "criminal," & "outside."

Under common law, the plaintiff is required to be restored to ___-___ condition ("made ___"), achieved primarily through a(n) ___ settlement.

"pre-injury," "whole," & "monetary."

If the plaintiff is ___ to injury, the defendant is going to be ___ for the outcome even if a "normal" person wouldn't be (e.g., ___ ___ Rule Law).

"predisposed," "liable," "Eggshell," & "Skull."

An ounce of ___ is worth a pound of ___.

"prevention" & "cure."

Historically, under common law, the father was entitled to the ___ & ___ of a(n) ___ minor child, as was the mother in the instance of sole ___.

"services," "earnings," "unemancipated," & "custody."

Historically, under common law, the husband was entitled to the domestic ___ of his wife & her ___ outside of the home, later further being entitled to loss of ___; whereas, the wife was entitled to ___ (until the year ____).

"services," "earnings," & "consortium;" "nothing," & "1839."

At the state level, Florida provides for ___ of sovereign immunity in ___ actions; however, said ___ does not apply if the employee acts ___ the scope of ___ or in ___ faith.

"waiver," "tort;" "waiver," "outside," "employment," & "bad."

In regard to worker's compensation awards, which elements are awarded & which ones are not considered?

- Awards include: Medical payments & lost wages (AWW) - Awards do NOT include: Pain & suffering & loss of consortium

What are the primary reasons that both individuals & businesses should purchase from a single insurance company?

- Coverage gaps are easier to avoid - Company is more aware of your needs

What are five (5) notable exceptions to the protections covered under the Equine Immunity Statutes (EIS)?

- Failure to make a reasonably prudent effort to determine ability of participant or suitability of a particular equine - Intentional injury of a participant - Willful & wanton disregard for the safety of the participant - Failure to warn of a dangerous latent condition - Failure to comply with some specific statutory mandate

In regard to business insurance, what is the primary difference between first-party & third-party coverage?

- First-party coverage: Business owners protected from damage to their own property or other assets - Third-party coverage: Liability protection for injury or damage to others or their property

Compensatory damages include both "general" & "special" damages. What is the primary designation between the two?

- General= Awarded as a result from the tort & damages are speculative in nature & difficult to calculate (i.e., pain & suffering) - Special= Damages that are legislatively set & thus generally easy to identify (i.e., medical expenses & lost wages)

How would you classify the following individuals? As policy formulators or as policy implementors? - Janitor - University dean - Grounds keeper - School teacher

- Janitor= implementor - University dean= formulator - Grounds keeper= implementor - School teacher= formulator

Describe the origins of the concept of "sovereign immunity" & how such a principle was integrated into the legal system of the United States?

- Origins: Founded in feudal England under the legal precedent that, "King (sovereign) could do no wrong" - First adopted by U.S. courts in Cohen v. Virginia (1821) wherein liability was imposed (personally) on the public employee committing the wrong

According to the Equine Immunity Statutes (EIS), what is the definition of an "equine professional"?

- Person who instructs or rents an equine to a participant - Person who rents equipment or tack to a participant - Person who provides daily care to horses - Trainer of an equine (*held to a higher standard fo care)

According to the Equine Immunity Statutes (EIS), what is the definition of "inherent risk"?

- Propensity of equine to behave in a way that might cause injury to a person near it - Unpredictability of an equine's reaction to: Sounds or sudden movement, hazards (e.g., surface condition), & collisions with other equines or objects

What are some ways that equine professionals & activity sponsors can advise participants of equine liability standards?

- Require participants to sign a release agreement - Post signs warning of the inherent risks of equine liability & the possibility of the equine professional's lack of liability

What are the client's rights as they relate to contingency fees?

- Right to know of attorney's education, training, & expertise - Right to know "up-front" how client will need to pay expenses & legal fees at case's conclusion - Right to be told of adverse consequences - Right to receive & approve a closing statement at case's end prior to paying - Right to ask for progress of case & have these questions answered - Right to make final decision regarding settlement of case - Right to report excessive charges to the Florida Bar

What is meant by "contingency fees" as they relate to attorney fees? & what relation do these payments have with a "contingency agreement"?

- With the contingency fee, the attorney accepts a percentage of the settlement as the fee for legal work carried out - The attorney & client must enter into a written agreement at the beginning of your negotiations (contingency agreement) - There is no legal requirement as to the percentage that an attorney can charge a client (same can be negotiated for lower percentage)

What are the seven (7) primary types of insurance policies?

1) Comprehensive general liability insurance: Property damage & bodily injury (negligence) 2) Umbrella insurance coverage ("excess liability policy"): Supplemental liability insurance applied after primary insurance limits are exhausted 3) Commercial vehicle insurance: May cover repairs, replacement, bodily injury for employees & 3rd parties 4) Pollution insurance: Hazardous waste 5) Employment practices liability insurance: Protects against employee suits for sexual harassment, wrongful termination, & discrimination 6) Directors & officers liability insurance: Protects for errors & omissions with respect to financial loss due to poor management decisions 7) Errors & omissions liability insurance: Professional services (i.e., financial loss for improper advice)

What are the five (5) types of attorney fees?

1) Contingency fees 2) Fixed fees 3) Judge set fees 4) Court awarded fees 5) Divorce case fees

What three (3) components are attorney fees determined based upon?

1) Difficulty of the case 2) Amount of time involved in the case 3) Experience & skill of the attorney (i.e., certification within specific disciplines)

What are four (4) possible examples of damages for personal injury?

1) Economic loss: Past & future monetary losses (i.e., out-of-pocket expenses, medical expenses, lost wages, earnings & profits, custodial care) 2) Physical pain: "Pain & suffering" (i.e., both past & future) 3) Mental distress: I.e., future anxiety, loss of peace of mind or mental health (e.g., neuroses & psychosis) 4) Physical impairment: Injury impairs eyesight, hearing, & ability to conceive/bear children

What five (5) components should a risk management plan fulfill at a minimum?

1) Identify the risk; 2) Follow through with recommended procedures to handle the risk; 3) If recommended alternatives exist, select the best alternative to address your need; 4) Implement; 5) Keep informed (recommendations & laws change overtime)

What are the five (5) primary components of an educational strategy in the workplace?

1) Management commitment 2) Supervisory commitment 3) Employee involvement & commitment 4) Written safety procedures 5) Safety inspections

When answering interview questions, recall the following nine (9) reccommendations?

1) Remain positive 2) Give simple responses (no acronyms or professional "shop talk") 3) Never say "no comment" (easy for public to misinterpret & carries a cloud of guilt) 4) Never comment "off the record" (NOTHINg is off of the record) 5) Present your facts (you are not obligated to accept the reporter's facts) 6) You are not obligated to answer hypotheticals ("trap for the unwary") 7) If you don't understand a question, ask the reporter to repeat it ("repetition is the mother of learning") 8) Be truthful (never lie) 9) Be prepared

What are the two (2) primary categories of disability established in worker's compensation cases?

1) Temporary disability (i.e., temporary partial & temporary total) 2) Permanent disability (i.e., permanent impairment & permanent total)

What are the four (4) basic questions to ask when addressing public employee liability?

1) What "hat" was worn at the time the wrong was committed (federal or state employee)? 2) Was the wrong committed within the course/scope of employment? 3) Was the act discretionary (policy formulator) or ministerial (policy implementor)? 4) Was the wrong committed with malicious or criminal intent or in bad faith?

What is the statute of limitations for worker's compensation?

2 years & 1 day from the initial date of injury (DOI).

Preventive law includes a __% knowledge of the law & ___% common sense.

"1%" & "99%."

Risk management can be summarized by the acronym A.C.T.; what do each of the three (3) letters represent?

A= Assessment: Hazard identification by both law & experience C= Communication: Ensure what is being communicated is adequately understood T= Take action: Reduce risk to the lowest practical or achievable level

What influence did the passage of the Married Women's Acts in 1839 have on the consequential damages awarded to the wife?

Acknowledged women now had a separate legal identity from their husbands, which entitled her to certain consequential damages.

What is meant by a "discretionary act" in the context of determining liability under sovereign immunity?

Act conducted by individuals whom formulate policy (known as policy formulators) that require deliberation, decision, & judgement.

What is meant by "compensatory damages"?

Actual damages for tort injuries to person or property (also referred to as money damages).

What is meant by an "emancipated minor"?

An adult as recognized by the courts & has most rights of an adult despite having yet to reach the legal age of majority.

According to the Equine Immunity Statutes (EIS), what is the definition of an "equine activity sponsor"?

An individual, group, club, partnership, or corporation which sponsors, organizes, or provides the facilities for equine activity.

According to the Equine Immunity Statutes (EIS), what is the definition of a "participant"?

Any person, whether an amateur or professional who engages in an equine activity (whether or not a fee is paid).

In what situation would nominal damages be pursued? & what is the general amount awarded for such damages?

Applied to situations in which there is liability due to a legal wrong, but there are no actual damages/harm. Typically, monetary awards for damages are very small ($1-$2).

What is meant by "court awarded fees" as they relate to attorney fees?

Attorney fees which are awarded as part of the recovery by the opposing client.

What is meant by "fixed fees" as they relate to attorney fees?

Attorneys will charge a fixed fee for specific matters (e.g., incorporating a business & drafting a contract or will).

What is the definition of a "hazard" as it relates to risk management?

Condition or changing set of circumstances that presents a potential for injury, illness, or property damage.

What is meant by "punitive damages"? & why are such fines imposed?

Defined: A civil fine to punish Imposed: 1) Defendant's actions were malicious, intentional, or grossly negligent & 2) Designed to carry a message to prevent others from engaging in similar conduct in the future

What is meant by "consequential damages"? & what parties are often entitled to these types of damages?

Defined: Such damages, loss, or injury as does not flow directly & immediately from the act of the party, but only from some of the consequences or result of such act ("indirect damages" to 3rd parties) Includes: Spouses, parents, & employers of the injured person not directly inured, but injured as a result of consequences of the act

What is meant by a "joint enterprise"? & what are the two (2) primary examples of such an enterprise?

Defined: Two (2) or more people work together toward a certain objective, including... 1) Partnerships: Two (2) or more people engaged in an activity to make a profit &/or share profits/losses 2) Joint ventures: Relationship of a limited scope & duration of time

According to the Equine Immunity Statutes (EIS), what is the definition of an "equine activity"?

Definition varies widely among statutes; in Florida, for instance, the definition is broad & includes hoof trimming of an equine & assisting in veterinary treatment.

What is meant by the doctrine of "respondiat superior"?

Doctrine in which the employer is held responsible (liable) for the tortious acts of their employees when those acts are committed within the scope of employment & cause injury/damages to the plaintiff.

Does the plaintiff pay taxes on compensatory damage awards? If not, are there any exceptions to this principle?

Generally, the IRS will exempt plaintiff from income tax, yet an important exception is applied... - Those plaintiffs with high annual salaries & large settlements may be subject to income tax

What is a "major" exception to the liability protections awarded under the Federal Tort Claims Act (FTCA)?

In instances wherein discretionary acts (acts requiring deliberation or judgement) have been committed in bad faith or with a criminal intent.

What rights & responsibilities are associated with the insurance company & policyholder, respectively?

Insurance company: - Right to examine business financial records - Right to conduct periodic inspections - Right to prompt notification of an event Policyholder: - Right to cancel policy for any reason

What is meant by "divorce case fees" as they relate to attorney fees?

May include one or a combination of fees (e.g., hourly fee & court awarded fees); further, court has discretion to order spouse to cover the other spouses fees & costs.

What information is provided in the "declaration" component of an insurance contract?

Provides a coverage overview, including reference to such items as coverage type, policyholder name/address, policy number, agent's name, type of coverage provided (e.g., cash value vs. replacement costs), covered amount, & premium.

In what way did the passage of the Federal Tort Claims Act (FTCA) contribute to the evolution of the concept of "sovereign immunity" in the American legal system?

The FTCA provides that the federal government will be liable for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of their office or employment.

What factor(s) are taken into account when determining damages to real property?

The difference in the property's value before & after the tort event (calculated by the reasonable cost of repair plus loss of value as a result of the damage) & compensation for loss of use.

What factor(s) are taken into account when determining damages to personal property?

The difference in the property's value before & after the tort event (calculated by the reasonable cost of repair plus loss of value as a result of the damage).

What is meant by "judge set fees" as they relate to attorney fees? & what factors are considered by the judge when deciding such matters?

There are judge set fees for over 200 Florida statutes (these statutes provide fees in certain legal actions); the following factors are considered by the judge when setting same... - Attorney's time in addressing the matter - Complexity & uniqueness of case - Customary fees in that locality - Experience & reputation of lawyer

Does the doctrine of "respondiat superior" extend to independent contractors? If not, are there any exceptions to these circumstances?

Under most circumstances, the employer is NOT held responsible for the actions of an independent contractor; however, exceptions apply: - When said contractor is carrying out an ultra-hazardous activity (e.g., aerial application) - When said contractor is carrying out an activity that is non-delegable as a matter of public policy (e.g., common carriers)

What is meant by a "ministerial act" in the context of determining liability under sovereign immunity?

Unlike a discretionary act, a ministerial act only requires an obedience to orders or performance of a duty by a policy implementor (POINT: The employee is left no choice of their own).

What is the definition of "vicarious liability"?

Wherein an individual is held liable for the tortious act of another ("vicarious"= "taking the place of another").

Are there statutory limits of monetary damages under the Florida state waiver of sovereign immunity? If so, what should happen if the award exceeds the payment "cap"?

Yes, there are statutory limits ($200,000 per person & $300,000 per incident). Should awards exceed this "cap," a "claims bill" must be filed, requesting the legislature to pass a special act to cover damages.