Monthly Archives: February 2013

THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT RENDERS AGE DISCRIMINATION DECISION THAT MAY MAKE IT MORE DIFFICULT FOR DEFENDANT EMPLOYERS TO OBTAIN SUMMARY JUDGMENT

In Barbara Kragor v. Takeda Pharmaceuticals America, Inc., 702 F.3d 1304 (11th Cir. 2012), the Eleventh Circuit, whose precedent is binding on all federal courts in Florida, Georgia and Alabama, recently reversed a district court’s summary judgment in favor of an employer in an age discrimination case brought by plaintiff under the Age Discrimination in Employment Act (“ADEA”). The plaintiff, a 49 year-old former pharmaceutical company employee, was terminated by the company president after an internal investigation because the employer determined that she had violated, or at a minimum had engaged in behavior that appeared to violate, the company’s conduct policies regarding improper gifts and benefits to client physicians. Plaintiff alleged that her employment was terminated based on her age in violation of the ADEA.

It was undisputed that plaintiff established the following four elements necessary to make out a prima facie case of age discrimination: 1) she was between the age of forty and seventy; 2) she was subjected to an adverse employment action; 3) a substantially younger person filled the position; and 4) she was qualified to do the job for which she was terminated. It was also undisputed that the employer proferred a legitimate, non-discriminatory reason for the termination. The next step in the age discrimination analysis is whether plaintiff can show that the employer’s proferred or stated reason is a pretext for discrimination. The district court initially granted summary judgment in the employer’s favor because plaintiff did not present sufficient evidence from which a jury could conclude that the employer’s proffered reason for the termination was pretextual, i.e., based on a lie or deceit.

The Eleventh Circuit reversed the district court’s summary judgment because evidence contradicting the employer’s proferred reason for the termination presented a factual issue that had to be decided by a jury. Namely, plaintiff offered evidence in the form of an affidavit from the employer’s physician client stating that he spoke to the company president and ultimate decisionmaker regarding her termination who said that plaintiff was an exceptional employee, that she had done nothing wrong, that she had done everything right, and that she should not have been terminated. The Eleventh Circuit held that when the employer’s decisionmaker, after terminating an employee for misconduct, says without qualification such contradictory statements – in combination with a prima facie case having already been established – then a jury question exists on the ultimate issue of discrimination. Such evidence casts sufficient doubt on the employer’s proffered nondiscriminatory reason for the termination to permit a reasonable factfinder to conclude that the proffered reasons were not what actually motivated the employer’s conduct. The Eleventh Circuit went on to hold that this type of case should be entrusted to the jury’s discretion, and also cited Gross v. FBI Fin. Servs., Inc., 557 U.S. 167 (2009) for the legal standard that ADEA plaintiffs must show, through direct or circumstantial evidence, “that age was the ‘but-for’ cause of the challenged employer decision.” (On a side note, it is good news from a defense perspective that the Eleventh Circuit cited Gross indicating agreement with the heightened “but for” standard that the factfinder must follow in ADEA cases).

Practical Significance for EPLI Claims Handling

The Eleventh Circuit’s decision in Kragor will likely make it more difficult for employer’s to prevail on summary judgment in cases in which plaintiffs are able to establish a prima facie case of age discrimination, and also present some form of evidence, whether via affidavit or deposition testimony of plaintiff or another witness, which contradicts the employer’s proferred legitimate, nondiscriminatory reason for the adverse action. Savvy plaintiffs’ employment attorneys will make sure they proffer this evidence and will cite the Kragor case to avoid summary judgment. This means that EPLI claims professionals and defense attorneys should be more hesitant to expend significant resources trying to build summary judgment in certain age discrimination cases, and instead more realistically focus the defense strategy and expend resources on either very early resolution or preparation for trial.

The materials contained in this Announcement are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney of your choice.

Slander of Title (Community Association Quarterly)

With condominium and homeowner’s associations still rebounding from the 2007 housing crisis, many communities are plagued with unit owners that have failed to meet their financial obligations. An association member’s failure to pay assessments can have dire effects on an association’s financial well-being and directly impact the prosperity, appearance, and operation of a community. Luckily, under Florida law, community associations can file a claim of lien on the delinquent member’s property in an effort to recover past due assessments. Filing a lien on a member’s property, however, if not done properly, can expose an association to liability. Once the association takes the steps necessary to file and foreclose on a claim of lien, the delinquent member and his or her counsel will undoubtedly scrutinize every aspect of the lien itself, as well as the association’s actions prior to the filing of the lien. It is not enough that the amounts owed are properly reflected in the claim of lien, but the association must be prepared to establish that the assessments were levied in accordance with its governing documents. Otherwise, the association could be exposed to a claim for slander of title.
In its most basic form, a claim for slander of title arises when a plaintiff can establish the malicious publication of a falsehood concerning title which impairs the marketability of the property.1 While malice is technically an element of a cause of action for slander of title, a plaintiff’s initial burden of proof in this regard is exceedingly light. Malice will be presumed upon a showing that the defendant communicated untrue statements to a third person which disparage the plaintiff’s title and cause actual or special damage.2 Notwithstanding this relatively easy burden, if the Association can show that it had a good faith belief that the statements in the claim of lien were accurate, the burden will shift to the plaintiff to prove “actual malice.”3
Once the plaintiff has established that the defendant communicated to a third party a false and malicious statement disparaging the plaintiff’s title, the plaintiff must then prove that the falsehood played a material and substantial part in inducing others not to deal with the plaintiff.4 Additionally, the plaintiff must demonstrate an actual pecuniary loss or damages. The last two elements are typically established when the plaintiff provides proof that it was unable to sell or lease its property as a result of the alleged improper liens.
Community associations often rely on third parties to prepare financial statements that properly reflect the amount of assessments owed by their members. Of course, there is no such thing as a perfect system, and on occasion the financial records prepared on the Association’s behalf may not accurately reflect the payments made by a unit owner. This type of clerical mistake could lead to a claim of slander of title should the association file and subsequently foreclose on a lien that contains misinformation. Of course, Florida Courts recognize contingencies such as this and developed what is known as the “good faith” affirmative defense. In addition to rebutting the presumption of malice, the “good faith” defense operates as a qualified privilege protecting an association who operates with a genuine belief in the truth of the statements set forth in the lien.5 In other words, the Association can defeat a claim for slander of title so long as it can show that it had a genuine good faith belief in the accuracy of the amounts reflected in the claims of lien. This, however, is a factual determination that will be left to the jury.6
Prior to filing a claim of lien against a delinquent member, it is imperative that an association take all reasonable efforts to confirm that the amounts reflected therein are accurate. Moreover, the association has the additional burden of proving that it complied with its own governing documents and procedures when it levied the assessments.7 As a result, it is essential that an association seek the advice and counsel of an attorney prior to taking any actions to collect past due assessments. Further, the attorney’s review should include not only the documents supporting the amounts contained in the lien, but a review of the actions taken by the association when it levied the assessments to ensure it was in conformity with its governing documents. While this will not necessarily be conclusive, it is certainly evidence that could support a finding of good faith.8
Ultimately, whether or not the association acted in good faith will be a question for the jury; however, taking extra time and effort to confirm the proper amounts owed, the propriety of the assessment itself, and discussing these issues with an attorney will help prevent any misstatements in the claim of lien, or in the alternative, establish a “good faith” defense. As the old adage goes, a stitch in time saves nine, and taking a few extra precautionary actions can go a long way to minimize liability exposure for slander of title claims.

(Endnotes)
1 Miceli v. Gilmac Developers, Inc., 467 So.2d 404, 406 (Fla. 2d DCA 1985).
2 Continental Development Corp. of Florida v. Duval Title & Abstract Co., 356 So.2d 925, 927 (Fla. 2d DCA 1978).
3 Residential Communities of America v. Escondido Community Ass’n, 645 So. 2d 149 (Fla. 5th DCA 1994).
4 McAllister v. Breackers Seville Ass’n, Inc., 981 So.2d 566 (Fla. 4th DCA 2008).
5 Allington Towers Condominium North, Inc. v. Allington Towers North, Inc., 415 So.2d 118 (Fla. 4th DCA 1982).
6 Id.
7 Berg v. Bridle Path Homeowners Association, Inc., 809 So.2d 32, 34 (Fla. 4th DCA 2002).
8 Allington Towers Condominium North, Inc. v. Allington Towers North, Inc., 415 So.2d 118 (Fla. 4th DCA 1982).

 

The Guide to Traumatic Brain Injuries

By: Christopher Donegan, Esq.

Between 2000 and 2006, an estimated 1.7 million people annually reported sustaining a traumatic brain injury (“TBI”), of which 52,000 people died, 275,000 were hospitalized and the remaining 1,373,000 were treated at their local emergency room and released without incident.1  According to the Centers for Disease Control and Prevention, commonly known as the CDC, reported cases of TBIs have increased steadily over the past 10 years.2  The reason for this increase is not exactly known.  Some experts attribute it to over-diagnosis while others credit it to emergency rooms being better equipped to accurately diagnosis a TBI.  Whatever the cause for the increase in these diagnoses, one thing is for certain, TBI claims are on the rise and they carry with them potential damages ranging anywhere from $85,000 for a mild TBI to $3 million for a severe one.3  In 2000, it was estimated that direct and indirect costs associated with TBIs in the United States topped an estimated $60 billion.4

 Whether dealing with a misdiagnosis or a real TBI claim, the bottom line to effectively handle these high value cases is to follow the old adage “knowledge is power.”  This article is going to walk readers through the initial evaluation of a TBI case starting with how to identify its leading causes and symptoms.  It will then discuss why it is important to establish a baseline comparison of the plaintiff’s cognitive function.  Finally, it will conclude with a brief discussion of the techniques to use to determine whether you are dealing with a genuine TBI claim and how to deal with the plaintiff’s claims during deposition.

 

IDENTIFYING A TBI

When the average person hears the term “traumatic brain injury,” the image of Muhammad Ali or Steve Young might come to mind – both professional athletes whose livelihoods involved blows to the head.  The image less likely to be thought of, but far more common, is the grandmother that slips on the sidewalk or the two-year-old that bumps into the coffee table reaching for that favorite toy.  Thanks to a very liberal definition, however, a TBI can be classified as almost any contact that potentially causes a bump, blow, jolt or a penetrating injury that disrupts the normal function of the brain ranging in severity from mild to severe.5

The greatest causes of TBIs across all age groups, and in both genders, are simple slip and falls – which accounted for about 35% of all reported cases occurring between 2002 and 2006.6  The leading cause of TBI related deaths during this same time period is motor-vehicle injuries – which accounted for about 17% of all reported TBI cases.7  About 75% of all TBIs each year are classified concussions or mild traumatic brain injuries with a high probability of complete recovery.8

 

COMMON SYMPTOMS OF A MILD TBI INCLUDE: 9

  1. Loss of consciousness for a few seconds or minutes, being dazed, confused or disoriented;
  2. Memory, concentration problems or sensitivity to light or sound;
  3. Headaches, dizziness or loss of balance;
  4. Nausea, vomiting, blurred vision, ringing in the ears or dry mouth;
  5. Mood changes or swings, feeling depressed or anxious; and
  6. Difficulty sleeping, fatigue, drowsiness or sleeping more than usual.

 

COMMON SYMPTOMS OF A MODERATE TO SEVERE TBI INCLUDE THOSE LISTED ABOVE FOR A MILD TBI, AS WELL AS: 10

  1. Loss of consciousness for several minutes or hours;
  2. Profound confusion, agitation, combativeness or other unusual behavior;
  3. Slurred speech, weakness or numbness in fingers and toes;
  4. Inability to awaken from sleep;
  5. Loss of coordination;
  6. Persistent headache or headache that worsens;
  7. Repeated vomiting or nausea, convulsions or seizures; and
  8. Clear fluid draining from the nose or ears.

 

COMMON SYMPTOMS OF A TBI IN YOUNG CHILDREN WHO ARE UNABLE TO COMMUNICATE INCLUDE: 11

  1. Change in eating or nursing;
  2. Persistent crying and inability to be consoled;
  3. Unusual or easy irritability;
  4. Change in ability to pay attention; and
  5. Change in sleep habits, sad or depressed mood or loss of interest in favorite toys or activities.

 

BASELINE COMPARISON AND MEDICAL RECORDS

When a plaintiff presents with symptoms of a TBI, whether mild or severe, the first step in the evaluation process is to establish the plaintiff’s baseline cognitive functioning.  Here you are looking for anything that depicts the plaintiff’s abilities prior to the alleged TBI, which can then be compared with the abilities they have claimed to have lost as a result of the accident.  A common TBI claim is an alleged personality change not previously present prior to the accident.  Good places to look for these records are:

  1. School records and standardized testing;
  2. Disciplinary records;
  3. Employment records including applications, performance reviews and separation records;
  4. Military records;
  5. Social security records;
  6. Other health disability or insurance records and/or applications

 

Next, you want to look for any pre-existing injuries the plaintiff may have suffered to the head, such as injuries incurred in any prior automobile accidents, sports injuries, and/or illnesses linked to cognitive dysfunction.  If you are able to find a pre-existing condition, the plaintiff’s experts will have to acknowledge that damages from brain injuries are cumulative, that the past brain injury may explain the plaintiff’s current symptoms, and that it is virtually impossible to determine which injury caused which symptom.  Other conditions to be on the lookout for are drug and alcohol addictions.  If present, defense counsel might argue that the plaintiff’s symptoms are connected to his or her addiction and not the subject accident.

 

EVALUATION AND THE PLAINTIFF’S DEPOSITION

Besides comparing the plaintiff to their baseline and analyzing their medical records, it is important to examine the scene of the alleged accident and interview witnesses to determine whether there was the potential for a TBI.  When looking at the scene, defense counsel should try to locate evidence demonstrating the nature of the accident (i.e., rear-end, T-Bone, side-swipe collision), the amount of property damage that resulted, and the speeds involved.  The focus should be on whether there was the potential for the plaintiff to strike his or her head, or be restrained in such a way that their own inertia would cause a jolt.  As a practice tip, an accident reconstructionist can provide valuable insight into whether there was the potential for the plaintiff to experience a bump, blow or jolt that could have resulted in a TBI.

When questioning potential witnesses, the focus should be on what he or she recalls about the plaintiff after the accident, such as any particular body part the plaintiff complained was injured, or if the plaintiff lost consciousness or was unable to communicate and/or control their body movements.12  While symptoms of a TBI do not always present immediately, evidence that the plaintiff did not appear dazed, injured or confused can go a long way in convincing a jury that any alleged injury occurred after the fact, if at all.

The best place to seek this information is in the emergency medical services (“EMS”) and police reports.  When looking at the EMS report, defense counsel will want to see whether the plaintiff was able to give a complete medical history and whether they could recall exact facts of the accident.  As for police reports, while not usually admissible, they can contain valuable information such as names of potential witnesses, the nature of the accident, and the extent of property damage and speed involved.

A common problem in evaluating whether a plaintiff has suffered from a TBI is malingering, the medical term for fabricating or exaggerating symptoms.  To reveal when a plaintiff is malingering you must remember time is your friend, so plan on prolonging the plaintiff’s deposition.  Defense counsel might want to start by taking the plaintiff as far back in his or her memory as possible, and then slowly move forward.  This will place the plaintiff at ease, and by the time he or she is being questioned about the subject accident and injury, they may be more likely to reveal any inconsistencies in their story.

By prolonging the testimony, the plaintiff may be placed in a position where maintaining the fabrication or exaggeration becomes both mentally and physically exhausting, thus creating more opportunities for him or her to make a mistake or reveal their malingering.  In some cases, it may be beneficial to videotape the plaintiff’s deposition, which will allow you to catch incidents where the plaintiff slipped out of character, and which may also give the defense experts something to evaluate and compare to other surveillance of the plaintiff.

The final step in effectively defending a TBI claim is retaining the right experts to help build the defense.  When evaluating experts, it important to look to the experts’ specialties and to try to match the experts’ qualifications to the plaintiff’s claims.  For instance, if the case involves a child plaintiff, experts that specialize in pediatrics may be utilized.  Potential TBI experts include:

  1. Neuropsychologists;
  2. Neuropsychiatrists;
  3. Neuroradiologists;
  4. Neurosurgeons;
  5. Neurologists;
  6. Psychiatrists; and
  7. Psychologists.

 

As a practice tip, defense counsel should always obtain the raw data generated by the plaintiff’s experts during neuropsychological tests.  This is important because over-interpretation of the raw data is a frequent problem.  It is also beneficial to retain similarly qualified experts, and to have all the raw testing data and radiological films interpreted by a defense expert.  In addition, defense counsel should confer with the defense experts as to their opinions on the reliability of questionable radiological testing (i.e., PET scans) and whether different medications might have had an impact on the test results.

 

CLOSING THOUGHTS

TBI claims are difficult to defend because of the lack of an examination that can definitively diagnosis a TBI and because the medical community still has no idea what the long-term effects are for a mild to moderate TBI.13  Rampant malingering and over-diagnosis have only complicated the matter.  Hopefully this article has helped to shed some light on the basic concepts involved in defending TBI claims.

 

(Endnotes)

1          Faul M, Xu L, Wald MM, Coronado VG. Traumatic Brain Injury in the United States: Emergency Department Visits, Hospitalizations and Deaths 2002–2006. Atlanta (GA): Centers for Disease Control and Prevention, National Center for Injury Prevention and Control; 2010.

2          Finkelstein E, Corso P, Miller T and Associates. The Incidence and Economic Burden of Injuries in the United States. New York (NY): Oxford University Press; 2006.

3          Craig M. Kabatchnick, The TBI Impact: The Truth About Traumatic Brain Injuries and Their Indeterminate Effects on Elderly, Minority, and Female Veterans of All Wars, 11 Marq. Elder’s Advisor 81, 102 (2009).

4          Finkelstein, supra note 2.

5          CDC analyzed existing national data sets for its report, Traumatic Brain Injury in the United States: Emergency Department Visits, Hospitalizations and Deaths 2002–2006. CDC’s National Center for Injury Prevention and Control funds 30 states to conduct TBI surveillance through the CORE State Injury Program. TBI-related death and hospitalization data submitted by participating CORE states are published in CDC’s State Injury Indicators Report.

6          Id.

7          Id.

8          Id.

9          Traumatic Brain Injuries, http://www.mayoclinic.com/health/traumatic-brain-injury/DS00552/DSECTION=symptoms (last visited October 13, 2012).

10        Id.

11        Id.

12        Traumatic Brain Injuries, http://www.mayoclinic.com/health/traumatic-brain-injury/DS00552/DSECTION=tests-and-diagnosis (last visited October 13, 2012).

13        Report to Congress on Mild Traumatic Brain Injury in the United States: Steps to Prevent a Serious Public Health Problem. Atlanta (GA): Centers for Disease Control and Prevention, National Center for Injury Prevention and Control; 2003.

 

Protecting Organizations from Allegations of Employee Sexual Misconduct

It seems as if every time we turn on the news there is a new allegation of sexual abuse and assaults committed in the context of an employment relationship: teachers, day care workers, Boy Scout leaders, college football coaches, and even police officers.  In other cases, the alleged victim is merely a woman who purchased a television and subsequently alleges she was raped by the company delivery man.  In still other cases, the alleged victim works with the accused perpetrator.   When the alleged victim and perpetrator are brought together as a result of an employment relationship, the employer, the proverbial “deep pocket,” is generally the one who is sued.

 

No matter the relationship between the alleged victim and alleged perpetrator, most often related civil lawsuits are based upon alleged negligence by the organization which brought them into contact.  Cases arising from sexual misconduct are generally based upon theories of negligent hiring and negligent retention/supervision.1  The ultimate question in such cases is “whether it is reasonable for an employer to permit an employee to perform his job in light of information about the employee which employer knew or should have known.2”  Negligent employment cases are successful when plaintiff’s counsel is able to prove that the employer failed to properly screen an applicant or had lax supervision that the alleged perpetrator may have exploited to commit misconduct.

We all have an interest in preventing sexual abuse and assault.  Not only are such crimes horrific for the victims, they can mean years of costly litigation and, in cases where abuse is alleged to be widespread, major public relations problems for an organization.  Therefore, it is critical that employers understand what makes them vulnerable to claims and how best to prevent situations where allegations of misconduct may arise.

 

Evaluating Applicants

 

Under the law, an employer is liable for an employee’s sexual misconduct where the employer is responsible for bringing the alleged victim into contact with its employee when the employer knows or should have known of the employee’s predisposition to commit wrong under circumstances that create opportunity or enticement to wrong.3  In every instance where an employee will have more than incidental contact with other employees and the general public, an employer has a duty to independently investigate applicants before hiring. 4  Depending on the position, the investigation goes beyond merely conducting a personal interview, receiving an application, and making personal observation of the applicant.5

The process of protecting an organization from allegations begins long before an employee is even hired. It is critical, particularly in cases of employees who will have contact with vulnerable populations such as children or the disabled, that a potential employer conduct a thorough background screening of each prospective employee.  This applies to applicants for all positions from a stock clerk to the CEO because potential sexual predators exist in every walk of life. A thorough background check includes more than just checking all references provided, though all references should be checked, bearing in mind that those people were hand-picked to provide glowing, positive information about the applicant.

 

Most importantly, the potential employer must speak with all of the applicant’s previous employers to determine if the applicant has any history of misconduct that may disqualify him or her from employment with the new organization.  Failing to check even a single prior job is evidence a plaintiff’s attorney can use to show that an employer breached the standard of care and therefore was negligent in hiring an employee.  Most previous employers will not share specific information about the applicant’s history without authorization from the employee due to privacy and confidentiality laws.  Prospective employers may consider requiring applicants to sign authorizations that allow representatives to speak with each prior employer when the employee is likely to have contact with the general public as part of the new job.

 

Even without an authorization, a previous employer is likely to confirm the applicant’s dates of employment and will usually answer the direct question, “Is the person eligible for rehire with your organization?”  In the event an applicant is not eligible for rehire, or if the stated dates of employment are different from those provided by the applicant, the prospective employer must follow-up with the applicant. These are red flags that plaintiffs’ attorneys live for; at the very least, the employee was a liar and should not have been hired, at worst, the company willfully failed to learn that he had a history of alleged misconduct. Most often, the reason an applicant is not re-hirable is relatively innocuous, but sometimes there is a pattern of conduct that is problematic, such as problems getting along with co-workers or a prior allegation of sexual harassment. Depending on the nature of the new position, companies may wish to take the extra step of requiring the applicant to sign an authorization allowing access his previous employer’s personnel file to evaluate the situation.  Likewise, prospective employers should not be afraid to verify other information contained in the application such as education and training.  Overstating qualifications can also be a “red flag” that plaintiffs’ attorney seek out, particularly when there is no follow-up by the employer.

 

Whenever possible, employers should conduct an additional criminal background check on all potential hires, particularly if the applicant has a history of unexplained relocations between cities or an unsteady job history. Until proven otherwise, companies should assume the worst and not rely upon the employee’s explanation when this information is easily verifiable.  Many private investigators will perform background checks in bulk for companies and it often involves little more than entering an applicant’s name and Social Security Number into a computer.  Every dollar spent before an employee is hired could result in saving your organization millions of dollars later on in the event the employee is the subject of a sexual misconduct allegation and the plaintiff can prove that simple things were missed or disregarded during the hiring process.

Under the law, prior allegations of misconduct need not be sexual in nature in order to create a foreseeable risk that sexual misconduct will occur.6  Any indication of past violent behavior, drug use, or mental illness could lead a jury to conclude that an employer created a zone of foreseeable risk to the alleged sexual assault victim, in the event an allegation turns into litigation.

Any action a prospective employer takes during the hiring process helps establish that the organization met, and preferably exceeded, the “reasonably prudent organization” standard, which is the legal litmus test applied in litigation.7  No matter what steps are taken, employers must be sure to document every single contact with an applicant, his previous employers, schools, and references, so that even years later, the exceptional due diligence can be shown.

Retaining and Adequately Supervising Employees

 

A case of negligent retention and supervision of an employee arises when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicate an unfitness for duty but the employer fails to take further action, such as investigation, discharge, or reassignment.8  Negligent hiring can give rise to a negligent retention/supervision claim even if the employee commits no other acts of misconduct between the time he is hired and the time the sexual misconduct allegation is made when the employer fails to take adequate precautions to adequately supervise or limit an employee’s duties.         Negligent retention/supervision claims formed the basis of the overwhelming majority of the child sexual abuse lawsuits against the Catholic dioceses in the United States; plaintiffs’ attorneys argued that, despite a history of sexual abuse allegations against the particular priests, Catholic bishops routinely reassigned them to new parishes and continued to give them unfettered access to children without warning parents and other parish staff, or otherwise limiting their duties.  In many cases, the accused priests were sent to work in rural parishes where they worked alone and had almost no regular interaction with their supposed supervisors.

 

It goes without saying that employees should be properly supervised at work.  However, adequate supervision is a particularly crucial issue when an employer has some indication of an employee’s unfitness- which might include involvement in the criminal justice system, mental health issues, or drug use- that may lead to danger.  Plaintiffs’ attorneys look for indications of lax supervision as evidence of employer negligence.  For example, in the case of alleged rape of an incapacitated plaintiff during a CT Scan, the plaintiff’s attorney may point to a hospital practice of allowing a CT Scan Tech to work alone on overnights, supervised only by the hospital’s nursing supervisor who only entered the CT Scan room once every 2-3 weeks, as evidence of negligent supervision.  Sexual misconduct does not occur in front of an audience, so adequate supervision will minimize or otherwise avoid situations where an employee is left alone with anyone who could be seen as a potential victim.  As another example, some schools require teachers who tutor students after school to have a minimum of two students in the classroom at all times or require multiple teachers to use the same room in order to ensure that no one is unmonitored.

 

Where appropriate, employers should consider installing surveillance cameras in areas where employees congregate.  In many cases of employee-on-employee misconduct, the cameras yield indisputable proof that an event did or did not occur, or, at the very least, may provide evidence to corroborate one employee’s version of events.  In either event, such evidence is usually helpful in the event of later lawsuits or EEOC complaints and is far more convincing than an attorney’s argument about what the facts suggest might have happened.

 

Immediately upon receipt of an allegation of sexual misconduct, employers should err on the side of caution and remove the alleged perpetrator from all contact with the general public as a company representative and, depending on the allegation, all contact with other employees. Nowhere is the axiom “better safe than sorry” more true for everyone involved than in a case of alleged sexual abuse or assault.  In most cases, the employer is generally within his rights to terminate an employee without further action if it so wishes.9  In some cases, an organization may instead choose to suspend an employee pending investigation of a claim.  In this event, it is advisable to bring in a third party investigator with experience in this area, rather than have another company employee conduct the investigation.  This leads to more dependable results that are not as easily subject to attack in later litigation, particularly if the employee is retained and additional allegations arise later on.

 

In the event that an employer chooses to retain an employee who has been accused and/or investigated for sexual misconduct, it should do so only after careful assessment of the potential risks. Consider the advice of those with more experience in these issues very carefully.  Learn from the example of Penn State University, whose leaders first learned in 1998 that Jerry Sandusky was the subject of a police investigation, more than a decade before another boy says he was sexually abused: do not assume that the failure to make an arrest means the police have concluded the alleged incident did not occur and that the allegation is false; it generally means only that the prosecutor is not confident she could obtain a conviction based upon available evidence.

 

Any time an employer chooses to allow the employee to continue working but with new duty limitations, the employer must also account for proper monitoring and supervision to ensure the employee is abiding by the limitations and no other potentially dangerous situations occur. Failure to provide proper supervision following the first allegation of sexual misconduct is a key element in lawsuits arising from subsequent acts of alleged misconduct and is particularly damning because the plaintiff is able to show an employer’s actual notice of a potential problem with the employee.

 

Conclusion

Sexual misconduct, be it sexual harassment, sexual assault, or sexual abuse, hurts everyone.  When it occurs, there is very often a highly damaged victim who seeks retribution.  Often, this means suing the organization that brought together the perpetrator and victim for damages.  In some, albeit rare, cases, the allegations are made by someone who was not a victim of sexual abuse or assault, but who has other motivations.  In either event, the costs and damage done to employers can be very high.  Employers can limit the potential for allegations and prevent sexual misconduct all together by taking simple steps from the moment a potential employee begins the application process, and by making prudent decisions during the course of employment.  This benefits everyone in the long run.

 

(Endnotes)

1     For ease of reference we will refer to all cases as “employment-based” cases, which also includes those in which the alleged perpetrator is an organization’s volunteer.

2     Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744, 751 (Fla. 1st DCA 1991).

3     See Garcia v. Duffy, 492 So. 2d 435, 439 (Fla. 2d DCA 1986).

4     Tallahassee Furniture Co. v. Harrison, 583 So. 2d at 751.

5     Id.

6     Id. at 757.

7     Garcia v. Duffy, 492 So. 2d at 440.

8     Tallahassee Furniture at 753

9     Of course, when terminating an employee for mental or physical health reasons, be sure that you comply with applicable federal, state and local laws regarding discrimination and disability accommodation.

 

Plaintiffs Can Now Mitigate Sanctions from a Proposal for Settlement by Utilizing the New Insurance Program Providing Coverage for Attorney’s Fees and Costs Incurred under Florida’s Proposal for Settlement Statute

With the advent of the mediation process (which is mandatory in any civil action in Florida), over 95% of all lawsuits now settle before trial. From the moment a complaint is served, each party seeks to identify, establish and exploit any potential advantage. In the chess match that is civil litigation, leverage is king. The key to the creation of leverage against an adversary is to convince them to settle their case rather than risk the unpredictable results of trial.

 

One of the more widely used methods for establishing such leverage is a Proposal for Settlement or Offer of Judgment. Florida’s Proposal for Settlement statute, section 768.79, Florida Statutes, was intended to encourage settlements by imposing court costs and attorney’s fees as sanctions upon a party who unreasonably rejects a Proposal for Settlement.1 Defense counsel frequently employs the use of Proposals for Settlement as a fee shifting mechanism, with the logic being that a plaintiff will become more reasonable in settlement negotiations if there is the potential that they will be responsible for paying the defendant’s attorney’s fees and costs if an unfavorable result is obtained at trial.2

 

The threat of potential sanctions for a plaintiff’s failure to accept a reasonable settlement offer before trial can now be essentially eliminated due to the creation of fee-shifting insurance. On October 9, 2012, Willis Programs, a subsidiary of Global Insurance broker Willis Group Holdings (NYSE:WSH), announced an insurance program that covers liability for attorney’s fees and costs under Florida’s Proposal for Settlement Statute. This dynamic new insurance, termed LegalFeeGuard, affords Florida state court litigants indemnification for sanctions under the Proposal for Settlement Statute. 3

LegalFeeGuard offers policies for general negligence matters, which are defined to include automobile, motorcycle, slip and fall, and products liability matters. The program, as advertised, does not specifically identify coverage for premises liability actions, negligent security, or other types of negligence matters, but coverage for such actions may be available as long as the underwriter’s criteria is satisfied. LegalFeeGuard also offers policies for professional negligence matters at a slightly higher premium due to the fact that court statistics indicate that professional malpractice cases are resolved through actual trial more than other types of liability cases. LegalFeeGuard does not advertise which types of professional negligence matters are covered, but we assume that policies will be available for actions which have triggered a party’s error and omissions policy.

 

LegalFeeGuard’s coverage limits and costs are as follows:

 

Therefore, as an example, a plaintiff can protect against fee sanctions in a general negligence action up to $100,000.00 for a relatively small premium payment of $3,500.00. The above policy premiums are non-refundable and carry no deductible. It is important to note that Florida Bar Staff opinion 78705 (revised) of the Professional Ethics Committee of the Florida Bar indicates that an attorney in Florida may advance the cost of the premium of the LegalFeeGuard policy and make the repayment of that premium contingent on the lawyer making a recovery on behalf of the client. This allows for easier access to LegalFeeGuard for plaintiffs, and we expect to begin to see plaintiffs’ attorneys shielding themselves and their clients from exposure to fees and costs from failing to accept a valid Proposal for Settlement by purchasing LegalFeeGuard. From a defense

attorney and claims professional perspective, you should expect plaintiffs’ attorneys and their clients to be less affected by the threat of payment of the defense attorneys’ fees and costs during settlement discussions before trial due to the availability of this insurance.

 

It should also be noted that LegalFeeGuard is available to either plaintiffs or defendants, so insurance carriers and their insureds can also benefit from this insurance in the appropriate cases.

(Endnotes)

1 Florida Rule of Civil Procedure 1.442, which implements section 768.79, adds additional requirements concerning the content of the Proposal for Settlement.

 

2 In any civil action for damages filed in the courts of Florida, if a defendant serves an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him, or on a defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25% less than such offer, and the court shall set off such costs and attorney’s fees against the award. Fla. Stat. § 768.79 (1).

 

3 However, this insurance is not available in federal court actions.