.

What's Hot in Workers' Comp

A judge of compensation claims must be specific when awarding non-professional attendant care to a family member.

Kelly Girardin v. AN Fort Myers Imports, LLC, Gallagher Bassett, DCA#: 22-1485, Decision date: May 08, 2024

June 1, 2024

by Linda Wagner Farrell

The claimant petitioned for attendant care benefits to be paid to her husband. The judge of compensation claimant ordered the employer/carrier to pay him for 30 hours per week at the federal minimum wage. The judge made a generalized finding that services “such as carrying her upstairs for her bathe, qualifies as attendant care under Florida Law.” The judge did not specify which “services” provided by the husband qualify for compensation, and the employer/carrier argued that some services do not qualify.

The First District Court of Appeal agreed with the employer/carrier in this regard and found that the judge erred in its award for non-professional attendant care. The judge could not award compensation for the husband under 440.13(1)(b), Fla. Stat. (2020), “that falls within the scope of household duties and other services normally and gratuitously provided by family members.” 

The evidence revealed that much of what the husband was doing around their home are things the claimant did before the accident, such as household chores and taking care of their children. The judge failed to make any specific findings or take steps to ensure that the husband was to be paid only for services that are not “within the scope of household duties and other services normally and gratuitously provided by family members.” For that reason, the First District Court vacated the order and set aside the ruling on the related fees and costs. 

 

What’s Hot in Workers’ Comp, Vol. 28, No. 6, June 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Thought Leadership

Documentation as a Defense: Protecting Against Legal Malpractice Claims

Legal malpractice claims often arise years after the events in question, when memories have faded and key details may be difficult to recall. In those moments, thorough documentation and well-maintained files can become an attorney’s strongest defense. Read Megan's article on the PLUS Blog: Documentation as a Defense: Protecting Against Legal Malpractice Claims - PLUS

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Thought Leadership

State Of Insurance: Q3 Notes From Pennsylvania

Pennsylvania courts issued several noteworthy insurance coverage decisions in Q3 2026, offering guidance on public policy defenses, commercial umbrella coverage, and privilege disputes in bad faith litigation. Todd's article reviews three key cases and their implications for insurers, policyholders, and coverage counsel, highlighting the continued importance of precise policy language, disciplined claims handling, and thorough documentation.

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

News

Marshall Dennehey Shareholders Recognized as Florida Trend Legal Elite Notable Women Leaders in Law

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

Thought Leadership

New Jersey Appellate Division Affirms Recreational Immunity for County Under Landowners' Liability Act

In a recent unpublished decision in Matthew Kuzma, etc. v. Middlesex County Parks Department, et al., the New Jersey Appellate Division affirmed summary judgment in favor of Middlesex County Parks Department, holding that the county was immune from liability under New Jersey's Landowners' Liability Act (LLA), notwithstanding its failure to plead the immunity as an affirmative defense in its answer to the Complaint. The case arose from injuries sustained by fourteen-year-old plaintiff, Matthew Kuzma, while playing basketball at Spring Lake Park in South Plainfield on August 23, 2019. The plaintiff observed a crack in the basketball court before beginning to play but did not consider it dangerous. During the game, his foot became caught in the crack, causing him to fall and suffer a significant ankle injury. The plaintiff alleged that the injury resulted in ongoing physical limitations and deprived him of the opportunity to play collegiate basketball. The plaintiff filed suit alleging that the defendants negligently maintained the basketball court. Although the county did not assert LLA immunity as an affirmative defense in its answers, it later moved for summary judgment on that basis. The plaintiff opposed the motion, arguing that the county had waived the defense by failing to plead it. The county maintained that the plaintiff had received sufficient notice of its intent to rely on the LLA through discovery and therefore suffered no unfair surprise or prejudice. The trial court agreed and granted summary judgment, concluding that the county should be permitted to invoke statutory immunity notwithstanding its failure to formally plead the defense. Relying heavily on the New Jersey Supreme Court's guidance in Arias v. Cnty. of Bergen, holding a county park was subject to the immunity of the LLA, the Appellate Division affirmed, holding that the county's failure to plead LLA immunity did not preclude reliance on the defense under the circumstances presented. The court determined that the plaintiff had received adequate notice of the immunity claim through discovery and that permitting the defense furthered the public-policy objectives embodied in the LLA. In affirming dismissal, the Appellate Division acknowledged the seriousness of the plaintiff's injury and the general societal interest in maintaining parks and recreational facilities in a safe condition. However, the court emphasized that both the legislature and the New Jersey Supreme Court have expressed a clear policy choice to limit liability for public and private landowners who make recreational property available for public use. The decision reinforces the courts' continuing adherence to the Landowners' Liability Act and the principle that recreational lands and facilities should be broadly protected from liability exposure, even in cases involving significant personal injuries.