DCA 2002); Bruner v. Caterpillar, Inc., 627 So. 2d 46, 47 (Fla. 1st DCA 1993). Now, however, the Fifth DCA may have receded from its prior precedent without even recognizing it was doing so. In Rasinski v. McCoy, So.3d , 42 FLW D1711, 2017 WL 3318712 (Fla. 5th DCA 8-4-2017), the court held that the defendant was entitled to a setoff where it was undisputed that the healthcare provider released its lien and waived it subrogation rights. Citing to only section 768.76(1), and not Sutton or any other case construing that statute, the Rasinski court reasoned that the subrogation right did not “exist,” warranting a setoff. If the Rasinski opinion becomes final, it would give defendants an unwarranted windfall. The tortfeasor should not reap the benefit of the plaintiff’s successful negotiation with a medical provider to reduce the amount of his or her balance. See Bruner. Practical considerations also make the Rasinski approach untenable. For instance: •
What must the “release” and “waiver” say for the right to not “exist” under section 768.76(1)?
•
What if a medical provider which initially wrote off the balance as a bad debt decides to exercise its subrogation rights upon learning that the plaintiff recovered money in a lawsuit? Would the judgment get amended to undo the setoff?
•
Will the court postpone the entry of a final judgment to give medical providers time to evaluate whether they will release their lien and/or waive their subrogation rights?
At the time of writing, plaintiff’s motion for rehearing remains pending, so perhaps the court will revise its opinion to follow its prior Sutton opinion or at least certify conflict with the First and Second DCA’s opinions in Bruner and Centex-Rodgers Construction. Stay tuned. 15-Day Deadline to Join Insurance Carrier to Judgment A motion to join the defendant’s insurance carrier to a judgment under the Non-Joinder Statute, §627.4136(4), Fla. Stat., must be made no later than 15 days after the entry of the judgment. See GEICO Gen. Ins. Co. v. Nocella, So.3d , 42 FLW D1781, 2017 WL 3495338 (Fla. 2d DCA 8-16-2017). New Rule: Check Your Online Case Dockets Regularly “Excusable neglect” is one of those phrases that can strike fear in even the most hardened trial lawyer, at least when speaking of one’s own conduct. But no one is perfect. And at one time or another, most of us have experienced the utter terror of realizing you missed a deadline because the tickler was not updated properly, having your computer crash at 11:55 pm on the day of the deadline while you’re trying to upload your filing, and so on. Rule 1.540(b) provides attorneys with some solace, permitting courts to vacate a default or any final order because of excusable neglect,
PRE-SETTLEMENT CASH FOR YOUR CLIENTS WITHOUT FEES OR INTEREST Fast Funds eliminates the pressure to accept a lower settlement. Take the time you need to settle your client’s case for its maximum value. Our program is the fairest in the non-recourse funding industry. Unlike other companies, we have no fees or charges. And, we do not charge interest, no matter how long it takes for the case to resolve.
We fund all types of personal injury cases. We comply with all state laws and ethical rules. We only get paid if the case is won.
Disclaimer: An attorney should not discuss non-recourse advance funding with a client unless it is done in compliance with Florida Bar Ethics Opinion 00- 3. The Florida Bar discourages the use of non- recourse advance funding companies. An attorney may provide a client with information about companies that offer non- recourse advance funding if it is in the client’s interest and done in compliance with Florida Bar Ethics Opinion 00-3. The individual lawyer is responsible for ensuring that his or her conduct is in compliance with the Rules Regulating The Florida Bar and comports with Florida Ethics Opinion 00-03. The Florida Justice Association recommends that attorneys who do provide names of non- recourse advance funding companies to clients should provide only names of companies that are in conformity with the guidelines contained in the agreement between the New York Attorney General and certain companies dated Feb. 17, 2005. The Florida Justice Association makes no determination or representation as to whether any particular non-recourse advance funding company is in conformity with Florida Bar rules or opinions, or any other guidelines.
Applications available online or by phone: 305-740-0603 • Toll Free: 866-738-3817 • Email: money@fastfunds4you.com • www.fastfundsforyou.com www.FloridaJusticeAssociation.org | September/October 2017 | 25