Counting Assets for Medicaid Long-Term Care

At Clarke Law, we specialize in helping Florida residents qualify for Medicaid while preserving as many assets as possible.

If you are applying for Medicaid long-term care or Medicaid waiver (care in a nursing home, ALF, or the provision of aides to your home), be aware that there are limits to the amount and type of assets that you may own.  If you exceed those limits, you will need to spend the assets  down or restructure them.

Florida Medicaid’s 2025 Asset Limits for Long-Term Care :

·       Asset Limit for a Single Applicant: $2,000 in countable assets

·       Asset Limit for a Married Couple (both applying): $3,000 in countable assets

·       Asset Limit for a Community Spouse (non-applicant spouse): $154,140 (in protected resources)

To qualify, applicants must ensure their assets fall within these limits. However, Medicaid exempts certain assets, allowing individuals to retain some property and financial resources while still qualifying for benefits (see below). A summary of the relevant financial eligibility criteria for Florida Medicaid can be found here: Florida Medicaid Fact Sheet

What Assets Does Florida Medicaid Exempt?

Certain assets are not counted toward the Medicaid asset limit, meaning you can keep them while still qualifying for benefits. These exempt assets include:

•        Primary Residence: If the applicant or a spouse lives in the home, it is exempt (up to an equity value of $713,000 in 2024). If the applicant is single and moves into a nursing home, Medicaid may place a lien on the home unless proper planning is done.

•        One Vehicle: Any vehicle is exempt, regardless of its value. A second vehicle may also be exempt if it is over seven years old but under twenty-five years old.

•        Personal Belongings & Household Goods: Clothing, furniture, appliances, and other household items are exempt.

•      Prepaid Funeral and Burial Plans: Irrevocable funeral contracts and burial spaces for immediate family members are exempt.

•      Term Life Insurance: Since these policies have no cash value, they are not considered assets.

 How Florida Medicaid Treats Common Assets 

Beyond exempt assets, Medicaid considers most other financial resources as countable assets.

1. Retirement Accounts (IRAs, 401(k)s, Pensions): If the applicant is not withdrawing required minimum distributions (RMDs), the full value of the account is counted as an asset.

If RMDs are being taken, Medicaid exempts the balance and counts only the monthly distributions as income. For spouses, the non-applicant spouse’s retirement accounts are fully exempt.

2. Stocks, Bonds, and Investment Accounts: Stocks, mutual funds, and brokerage accounts are countable assets, even if they generate income.

Dividends or interest from these investments count as income, but the assets themselves still count toward Medicaid’s asset limit.

3. Cash and Bank Accounts: Checking, savings, and money market accounts are countable assets.

4. Jointly Owned Assets:  Medicaid typically assumes that the applicant owns 100% of any jointly held assets unless evidence shows otherwise.

If an asset is jointly owned with a non-spouse, the applicant may need to prove they do not have full control over the funds.

5. Gifts and Transfers (Look-Back Period): Medicaid has a five-year look-back rule, meaning that any gifts or transfers for less than fair market value within five years of applying could result in a penalty period of ineligibility.

How Can You Protect Your Assets and Qualify for Medicaid?

Medicaid planning strategies help individuals legally protect assets while ensuring they qualify for long-term care benefits. Some common techniques include:

•        Spending Down Assets: Paying off debts, home improvements, or purchasing exempt assets (such as a vehicle or funeral plan).

•        Medicaid Asset Protection Trusts: These irrevocable trusts remove assets from an applicant’s ownership while preserving them for heirs.

•      Caregiver Agreements: Paying a family member for care services in a way that Medicaid recognizes as a valid expense.

Need Help with Medicaid Planning? Clarke Law Can Assist! At Clarke Law, we specialize in Medicaid planning strategies that ensure you or your loved one qualifies for benefits without unnecessary financial loss.

📞 Contact John Clarke today for a consultation at (305)467-5560 to discuss your Medicaid planning needs!

Florida Uniform Heirs Property Act

          In 2020, the Florida legislature passed a new law called the Florida Uniform Partition of Property Heirs Act (“the Act”).  The purpose of this law is to allow heirs of property to buy the shares of other heirs in a court-supervised sale.

 In the past, if one of a group of heirs wanted to keep an inherited property but others wanted to sell, and the parties couldn’t agree on a buy-out, then the only legal remedy was a partition sale.  The Act allows the heir that wants to buy another heir’s property share the ability to purchase it for its appraised value.  Thus, the new law facilitates preservation of real estate within a family.

When Does the Florida Uniform Heirs Property Act Apply

Heirs who inherit a property share may avail themselves of the Act when the following conditions apply:

-the heir holds his property interest as a tenant in common

-there is no prior agreement among all the heirs governing partition of the property

-one of more of the cotenants acquired title from a relative, whether living, or deceased

AND, any of the following applies:

1.       Twenty percent or more of the interests are held by co-tenants who are relatives;

2.     Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or

3.       Twenty percent or more of the cotenants are relatives.

Buyout Process Under the Act

The process is initiated when an heir who wants to sell his portion of the property  files  a partition action under Florida Statute Section 64.041. In his partition complaint, he asks the court to apportion and sell the property.  The court then determines whether the property is heirs’ property under the criteria stated above.  If the property meets these criteria, the court then orders an appraisal to determine the fair market value of the property.  Once the court notices all parties of the results of the appraisal, it holds a hearing at which it decides whether to adopt the results of the appraisal as the fair market value of the property.

      The next step that the court takes under the Act is to send notice to all the other co-tenants that they have the right to buy out the cotenant who requested partition at a purchase price based on the appraised value of the property multiplied by the co-tenant’s fractional ownership share.  The cotenants then have 45 days to exercise their purchase rights under the Act.

     What happens next depends on whether one or more cotenants elect to purchase the property interest of the co-tenant who sought partition.    If no cotenant exercises his purchase rights, the court orders a physical partition or partition by sale of the property.  If one or more cotenant exercises his purchase rights, the court notices the other co-tenants of this fact and then issues a judgment of partition that reallocates the co-tenants’ respective shares in the property.

      In keeping with the purpose of the act, a court-ordered buyout is only available when a relative of the decedent owns a portion of the property (so, if decedent’s heirs are not relatives, the Act will not apply).  The Act defines a relative broadly as “ an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or law of this state other than this part.”  However, an heir who is not a relative may exercise buyout rights under the Act as long as 20% or more of the other cotenants are relatives (or 20% of shares belong to a relative).  Thus, the act has broad applicability in situations where heirs inherit a decedent’s real property.

If you need legal assistance with devising or inheriting property, call John Clarke Esq. at (305) 467-5560!

Suing for Kratom Overdose

Kratom is an extract from the leaves of a plant, mitragyna speciosa, that is native to Southeast Asia. In recent years, kratom  has become quite popular in the United States as a dietary supplement.   Kratom has several psychoactive compounds and acts as a stimulant at low doses and a sedative agent at higher doses.  Its distributors ascribe many extraordinary health benefits to the plant : curing opioid addiction, easing withdrawal from opiods, and alleviating depression and anxiety.  The limited studies on kratom’s physiologic effects indicate that it may provide analgesia and improvements in mood, but it can also cause addiction, dependence, and death.

Regulation of Kratom in the United States

       Due to the paucity of research on kratom’s physiologic effects, The FDA has discouraged the sale and consumption of kratom.  It has also stated that it is illegal to market kratom as a dietary supplement.   Due to concerns regarding kratom’s adverse health effects, import of kratom into the United States for medical purposes has been banned.  Nonetheless, it is legal to buy kratom as a botanical extract. A burgeoning industry of kratom growers and distributors has emerged in the last 15 years that generates billions of dollars in revenue yearly.  The FDA estimates that there are now over 5 million people who regularly consume kratom products in the United States.  The FDA has initiated a few enforcement actions against kratom manufacturers who were marketing kratom products to treat opioid use disorders and withdrawal symptoms.  However, the FDA has thus far failed to enforce its ban against kratom manufacturers who market their products as extracts rather than supplements (though all of these products are in fact  designed to be consumed like drugs).

A Tide of Kratom related Overdoses and Deaths

A 2019 report from the American Association of Poison Control Centers (AAPCC) noted that there was a 52-fold increase in kratom use, based on reports of intoxication,  between the years 2011 to 2017.  As kratom use has increased,  many consumers have paid the ultimate price.  Over 18 months in 2016 and 2017, 152 overdose deaths involving kratom were reported in the United States, with kratom as the primary overdose agent in 91 of the deaths.

Wrongful Death Litigation Against Kratom Manufacturers

 There have been an increasing number of wrongful death cases filed against kratom manufacturers in recent years as kratom overdose deaths have risen.  These cases tend to assert claims that the relevant manufacturers and retailers are negligent in how they market their products, and/or are strictly liable for failure to warn consumers of their dangers.

- In 2022, the Estate of Krystal Talavera won a judgment of $11,000,000 against Sean Michael Harder, owner and operator of the Kratom Distro after Krystal died from a kratom overdose on Father’s Day 2021.

 In August 2023, a Seattle jury awarded $2.5 million to a Castle Rock family in a wrongful death lawsuit after a man with back pain died after ingesting kratom. 

If you or a family member have been injured by the use of kratom products, call personal injury attorney John Clarke at (305)467-5560 for a free consultation!

Privacy Policies for Florida Websites

        In this digital age, web commerce and marketing are essential for many small businesses.  Customers increasingly shop as well as research businesses on the internet in order to decide who to hire.  Whether you are a lawyer or an online boutique, having an interactive website that collects consumer information is very useful.  

        If a business collect consumer information, it should have a privacy policy that spells out the type of data it collect and how it uses it.   A privacy policy serves two purposes. First, it informs the consumer about how his or her data will be used, and ideally inspires trust.  Secondly, a privacy policy can be a tool that brings the website into compliance with applicable privacy laws.

         Governments around the world have recently placed increased importance on safeguarding data by enacting laws such as the GDPR (European Union) and the CCPA (California).  These  laws give consumers an increased ability to control how their information is used.   As more business moves online, the trend seems to be for more government regulation in this area and more protection of consumer data.  

Florida’s Digital Privacy Law

Florida recently enacted the “Florida Digital Bill of Rights” (Chapter 501.701-501.722, Florida Statutes),  which goes into effect on  July 1, 2024.  An important distinction is drawn in this law between large businesses (defined as “controllers”) and smaller businesses. Most of the restrictions in this law apply only to controllers, which represent a  small group of large tech companies.  A controller is defined as an entity that does business in the state of Florida, collects personal data from consumers, that has an annual global revenue of more than $1 billion and meets one of the following criteria:

• Derives 50 percent of its global gross annual revenue from the sale of advertisements online;

• Operates a consumer smart speaker and voice command service with an integrated virtual assistant connected to a cloud computing service that uses hands-free verbal activation; or

• Operates an app store or digital distribution platform with at least 250,000 different software applications for consumers to download and install.

A consumer has the right under the FDBR to opt out of the collection and sale of her personal data (defined below) by the controller.  The consumer can also enforce these provisions against entities that handle her information on behalf of the controller.

A.    Definition of Personal Information

         The definition of personal information  in Florida’s data breach law, Section 501.171, is expanded in the FDBR to include biometric information as well as information regarding a person’s geolocation (if in combination with the individual’s first name or first initial and last name). This is an important development for all businesses to consider in reviewing their breach notification obligations.

B.     Sensitive Information

 “Sensitive data” means a category of personal data which includes any of the following:

(a) Personal data revealing an individual’s racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status.

(b) Genetic or biometric data processed for the purpose of uniquely identifying an individual.

(c) Personal data collected from a known child.

(d) Precise geolocation data.

The FDBR requires that a controller that sells a customer’s sensitive information must  display a prominent notice on the controller’s website to notify the customer of this practice.

C.     Data Processors

An entity that processes data for a controller also has obligations under the FDBR to safeguard consumer data.  In order to ensure compliance with the FDBR, a data processor should ensure its contract with the controller has provisions that ensure the safeguarding of consumer data.

D.    Enforcement

The FDBR lacks a private right of action.   Instead, the Florida’s Attorney General is tasked with enforcing the law (therefore, a consumer who believes his rights have been violated should file a complaint with Florida’s AG).  A 45 day cure period is at the discretion of the attorney general and civil penalties authorized by the FDBR run as high as $50,000 per violation.  

Summary

       In conclusion, the collection of consumer data is becoming more highly regulated in many jurisdictions.  It is essential that all businesses that collect customer information through a website or app have robust privacy policies in place that disclose how they use customer data.  A privacy policy builds customer trust and may also be required to comply with applicable privacy laws.  Florida’s FDBR gives consumers rights to restrict collection of their data against a limited set of entities. 

       Contact John Clarke Esq. today at (9540 556-8952 for assistance in drafting a privacy policy or complying with Florida’s privacy laws!

2023 Changes to Florida’s Personal Injury Laws

A bill was recently signed into law in Florida that makes it more difficult for plaintiffs to sue for personal injuries in many ways.

The new law includes the following provisions:

• Repeal of law that required insurers to pay a policyholder’s attorney fees and costs if a court held that the company acted in bad faith

• A shortened statute of limitations for negligence-related personal injury cases, (reduced from four to two years)

• A modified comparative fault statute that denies Plaintiffs any relief from defendants in a personal injury suit if the plaintiff is found to be 51% or more liable.

• Significant reductions in damage awards against property owners when their negligence causes a personal injury

• Requires new disclosures to juries about letters of protection used to obtain medical treatment

       While the law was advertised as being necessary to bring down insurance and litigation costs, my opinion is that it will do neither, but instead compromise the ability of plaintiffs to be compensated for their injuries.  There is no provision in the new law that regulates insurers’ business practices  nor caps the rates an insurer charges.  On the other hand, the law will discourage attorneys to take cases against insurers for wrongdoing on a contingency basis unless the amount in dispute is very high.  As a result, many consumers whose claims have been wrongfully denied by their insurers  who lack financial resources will likely be unable to pursue their claims in court.

      The adoption of a modified comparative fault law is also problematic for personal injury plaintiffs.  Under the previous pure comparative fault standard, all parties who shared liability for an injury would be charged with paying a portion of the damages that corresponded to their percentage of fault. This system created incentives for everyone to be careful and avoid causing injuries.  Under the new standard, a defendant who is held to be 49% at fault for causing a plaintiff’s injury will not be liable to pay any damages to the Plaintiff.  This scenario creates a potential windfall for defendants, and also will likely cause attorneys to take fewer personal injury cases on a contingency basis.

     In this challenging environment for personal injury lawsuits, it is important that you choose an experienced and knowledgeable attorney to represent you when you are injured. If you have been injured, Call Fort Lauderdale attorney John Clarke for a free consultation at (305)467-5560.

Florida Defamation Law

Definition of Defamation:

Defamation is a general legal term that is defined as the act of communicating a false statement to a third party that results in harm to another’s reputation.   The tort of defamation can be subdivided into two types:

Slander: a spoken communication of a false fact to a third party that results in harm to the reputation of another.

Libel: A written false fact that is published or communicated to a third party that results in harm to the reputation of another

Florida law provides that a defamation plaintiff must prove the following elements:

-Falsity

-Communication to a third party

-Negligence, reckless disregard of or knowledge of falsity of the matter

-Actual damages

Jews for Jesus, Inc., 997 So. 2d at 1106

Public v. Private Figure:

A public figure has less protection than a private figure from false statements, according to the US Supreme Court’s decision in New York Times v. Sullivan, which is the law of the land.   The rationale for this distinction is that a public figure has a lesser expectation of privacy than a private individual owing to his circumstances.  

 Why is this distinction important?

 A private figure need only prove that the defendant acted negligently in making his false statement.  A public figure, on the other hand, would have to show that the defendant acted with actual malice.

Defamation Per Se:

 The biggest difficulty in proving defamation usually lies in showing the plaintiff suffered actual damages.  Florida law provides that certain types of statements are defamatory by nature – this concept is known as “defamation per se. “

 Examples of per se defamation include the following:

• When the statement charges that the plaintiff has committed a serious crime;

• When the statement charges a plaintiff with having an infectious disease (or mental illness);

• When the statement tends to cause the plaintiff to be regarded with  distrust, hatred,  ridicule, contempt or disgrace; or

• The statement tends to injure the plaintiff in his trade or profession.

Defenses Against Defamation Claims:

 There are several common defenses to defamation suits that apply in Florida.  These include: truth, substantial truth, pure opinion, retraction (see paragraph on procedural requirements) and privileged communications.   Under Florida law, there are absolute privileges and qualified privileges.  An absolute privilege allows a speaker to make a statement under any circumstance, even where the speaker communicated with actual malice or reckless disregard for the statement’s truth.

Absolute privileges include:  

- statements made during judicial, administrative, and legislative proceedings,

- statements made by executive officials in connection with their duties and responsibilities

-communications between spouses

A qualified privilege typically applies when a person in authority makes a statement that the public at large has an interest in hearing. The difference between absolute and qualified privilege is that the latter does not protect statements made with actual malice.  Qualified privileges include reporting by media on government proceedings and statements to a government agency concerning a public issue.

Online forums, such as Facebook, and Twitter are generally exempt from liability for defamation for the statements posted by third parties, according to Section 230 of the Communications Decency Act (47 US Code §230).   Defamation immunity for webmasters is destroyed, however, if the webmaster told the user to post the statement or edited it.

Procedural Requirements for Defamation Suits in Florida: 

Before bringing any civil action for libel or slander, the Plaintiff shall serve notice on the Defendant as to the broadcast and statement that he alleges to be defamatory. Florida Statute Section 770.01

If the following are determined at trial, then Plaintiff shall only recover actual damages:

-         That the broadcast was made in good faith

-         That its falsity was due to an honest mistake of the facts,

-         That there were reasonable grounds for believing that he statements in the broadcast were true, and

-         A full and correct apology or retraction is published by the newspaper or other broadcaster within a statutorily-specified time period

     Florida Statute Section 770.02

 Statute of Limitations for Defamation:

Florida's statute of limitations for defamation is two (2) years. See Florida Statute Section 95.11(4)

If you believe that you have been defamed or been the victim of a personal injury, contact attorney John Clarke at (305)467-5560 for a free consultation!

Florida Slip and Fall Accidents

Unfortunately, slip and fall accidents are common occurrences in the busy stores and parking lots of the sunshine state. If you slip and fall on someone else’s property, and your fall was caused by an unsafe condition, you may be able to recover against the property owner.

Some of the most common situations that lead to slip and fall accidents are:

·         Wet, slippery surfaces, such as a spill

·         Negligently-maintained parking lots with potholes

·         Faulty construction equipment

·         Unexpected obstacles, such as debris or fallen merchandise

Depending on the situation, slip and fall accidents can cause their victims to suffer bruises, broken bones, spine and brain injuries, and dislocated joints.  Also, a slip and fall accident is potentially the basis for a claim for property damage and emotional distress.

1. What you need to prove in your slip and fall case:

You slipped and fell

Your fall caused injuries.

Someone else (often the property owner) failed to maintain a safe environment.

The property owner’s failure to maintain a safe environment caused your slip and fall.

2. Florida statute section 768.0755 sets a high bar for a plaintiff to hold a business  liable for a slip and fall due to a “transitory foreign substance”

This Florida law states that a business may be held liable for a slip and fall due to the presence of a wet or sticky substance only if it had actual or “constructive” knowledge of the condition.  Constructive knowledge may be proven by evidence that the dangerous condition had existed for a period of time prior to the slip and fall, or that the condition occurred with regularity, such that it was foreseeable.

3. Evidence concerning the condition that caused your slip and fall is crucial to prove your case

As the plaintiff, you have the burden of proof to show that there was a dangerous condition that caused you to fall AND that the defendant knew or should have known about that condition and removed it before you fell.

Important evidence:

1.      Video surveillance showing dangerous condition (sticky substance on floor) – most large stores maintain 24 hour video surveillance of their premises

2.      Eye witness testimony that establishes that there was a dangerous condition and that this condition caused your fall.

3.      Maintenance logs that show when and how often the business establishment maintained the premises

4. Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

5. Negligence per se is important way of proving slip and fall case in which property owner has failed to obey safety regulation in the design of its property. (ramp that is too steep)

 

The principle of “negligence per se” is that a court will consider a defendant’s actions that violate a law to be negligent without asking whether a reasonable person would have done the same thing.  In slip and fall accidents caused by a structure or surface that does not meet the applicable building codes, negligence per se can be an easy to prove a case.

 6. The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

4. Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law. 

7. What Types of Damages You Can Get for a Slip and Fall

Economic damages – medical bills, lost wages, property damage

Non-economic damages – pain and suffering, loss of enjoyment of life, emotional distress, etc.

 If you have been injured in a a slip and fall accident, or any other accident, call Fort Lauderdale personal injury attorney John Clarke at (305)467-5560 for a free consultation!

Suing for Wrongful Death

  In Florida, when a person dies as a result of someone else’s wrongful act, the decedent’s estate can sue the wrongdoer to recover money. This lawsuit is called a wrongful death action and is defined by Florida Statutes, Chapter 768. In this article, I will examine the purpose and nature of a wrongful death claim, who is eligible to collect damages,  what type of damages can be claimed, and the statute of limitations for filing this claim.

Definition of a "Wrongful Death"

            Under Florida law, a wrongful death occurs when a person causes another person's death by a "wrongful act, negligence, default, or breach of contract or warranty." (Fla. Stat. § 768.19).  The following fall under this definition:

• negligent manslaughter (car accident, slip and fall)

• unsafe condition in a rented house that causes death

• defective product that causes death

• intentional, wrongful act that causes death (assault that causes fatal injury, murder, etc.)

Who May File a Wrongful Death Lawsuit in Florida

          Florida law provides the personal representative of the decedent’s probate estate the exclusive right to file a wrongful death claim on behalf of the estate and surviving family members. (Fla. Stat. § 768. 20).

Purpose of a Wrongful Death Claim

              A wrongful death lawsuit seeks only financial compensation from the wrongdoer for those who have suffered as a result of his death.  A wrongful death judgment is intended to reimburse the decedent’s family for support he would otherwise provide them.   The judgment may also award the family  intangible losses caused by  the decedent’s death such as “mental pain and suffering.”   In short a wrongful death lawsuit is similar to a personal injury suit in the type of relief sought.   Since the victim has died, however, the beneficiaries of the lawsuit are the victim’s estate and family.

            The burden of proof in a wrongful death action is “preponderance of the evidence,” meaning it is more likely than not that the defendant caused the death at issue.  So it is easier to win a wrongful death action than a criminal case for murder, in which the burden of proof is “guilt beyond a reasonable doubt” (which is what happened in the OJ Simpson cases).

 Damages Available in a Florida Wrongful Death Lawsuit

          In a successful wrongful death case, the court will order the defendant to pay "damages"—or the plaintiff's claimed losses—to compensate for the death. Under Florida law, the types of potential damages in a wrongful death suit fall into two categories: damages awarded to the deceased person's family and damages awarded to the estate.  Importantly, the beneficiaries of a Florida wrongful death claim are authorized by statute to collect damages for both loss of support from the time of the decedent’s injury until his death and also for the future loss of support and services.  The duration of future losses is computed with reference to the life expectancies of both the survivor and the decedent. In the case of a child beneficiary of a wrongful death action, the remaining period of the child’s minority is considered when calculating future damages.     Damages paid to the family commonly include money to compensate for:

• the loss of the financial support provided by the decedent

• the loss of the decedent’s companionship to decedent’s spouse

• the loss of parental companionship, instruction and guidance

• mental pain and suffering

• decedent’s medical and funeral expenses paid by a surviving family member.

         The deceased person's estate may also recover the following damages:

• lost wages, benefits, and other earnings from the date of the person's injury to the date of his or her death

• the value of earnings and benefits the deceased person could reasonably have been expected to retain as savings and leave as part of the estate if he or she had lived, and

• medical and funeral expenses that were paid directly by the estate.

 (Fla. Stat. § 768.21).

Punitive Damages

          Punitive damages are available in a wrongful death lawsuit if it is shown that the wrongdoer recklessly or intentionally caused the decedent’s death.  Florida Statutes Section 768.72 states that A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.

            In Florida, an award of punitive damages is a two-step process.  First, the trial court determines at a preliminary hearing whether Plaintiff has  presented sufficient evidence that the defendant’s conduct was more than mere negligence .  If the court allows the punitive claim to go forward, the Plaintiff must then establish, based on clear and convincing evidence, at trial that the punitive damages should be awarded.  

          The amount of punitive damages that a court may award depends on the nature of the defendant’s misconduct.   If the court determines that the defendant’s conduct was grossly negligent or reckless, it may award up to three times the amount of compensatory damages or $500,000 (whichever is less) in punitive damages (Florida Statute §768.73(1)(a)).  If the defendant’s conduct is proven to be motivated by financial gain and “unreasonably dangerous,” the punitive damages limits increase to four times compensatory damages or $2 million dollars .  Finally, if it is proven that Defendant had a specific intent to harm the claimant, then there shall is no cap on punitive damages.

The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

4. Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law. 

 Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, and you will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

Time Limit for Filing a Wrongful Death Action

          Like other types of lawsuits, wrongful death claims must be filed within a certain period of time. In Florida, the statute of limitations for most wrongful death lawsuits is two years from the date of the decedent’s death. (Fla. Stat. § 95.11(4)(d)).   However, there is no time limit for bringing a wrongful death claim if the death was a result of murder or manslaughter (Fla. Stat. § 95.11(10)).

          If your family member has died as a result of a wrongful act by another, call Florida wrongful death attorney John Clarke at (954)556-8952 for a free consultation!

Rideshare Accidents

     Over the past several years, rideshare services such as Lyft and Uber have exploded in popularity across the sunshine state.  In response, Florida’s legislature has passed  several laws that impose insurance requirements on and mandate safety features for rideshare vehicles to protect passengers.  However, these laws do not offer optimal protection to passengers in every circumstance.  

Required Insurance

Florida Statute Section 627.7483 spells out the insurance requirements for Transportation Network Companies (“TNC”) such as Uber and Lyft. When the TNC driver is logged on to the digital network but is not transporting a rideshare passenger, the insurance coverage requirements are:

• $10,000 for death and bodily injury per person,

• $20,000 for death and bodily injury per incident,

• $10,000 for property damage,

• Personal injury protection benefits, and

• Uninsured and underinsured vehicle coverage (“UM/UIM”).

There is a twist to the statutory requirement for uninsured and underinsured motorist coverage, which compensates victims for their injuries caused by owners or operators of uninsured motor vehicles. Pursuant to Section 627.727(1),  uninsured and underinsured vehicle coverage  can be rejected by the “insured named in the policy” on behalf of all insureds under the policy by executing a written rejection.  So, UN/UIM is not required to be carried by a rideshare operator or company, but can be rejected by the insured named in the policy, which is usually the rideshare company.  Lyft routinely rejects UM/UIM coverage altogether while Uber select limits lower than the required BI limits . The upshot of these laws and policies is that both TNC drivers and their passengers are financially vulnerable when they suffer injuries caused by the negligence of an uninsured/underinsured driver.

         A TNC driver can protect himself from these risks by purchasing UM/UIM insurance, which should have an endorsement so that it covers him during the transport of rideshare passengers.  The rideshare passenger can apply the UM/UIM coverage for any vehicle for which he is an insured or insured family member to compensate for injuries sustained in rideshare accidents caused by un/underinsured drivers, pursuant to Florida Statute Section 627.727(9)(c).

Other Laws Affecting Safety

A new Florida statute that became effective on January 1, 2022, Section 627.7483, requires rental and rideshare vehicle to be current on safety recalls . The passage of this law was prompted by studies that found large numbers of rideshare vehicles with unserviced recalls listed on the rideshare companies’ apps.

 Recovering for Your Injuries

          In a personal injury lawsuit, a successful plaintiff may collect economic damages as well as non-economic damages.  Economic damages include costs of medical treatment of injuries,  lost wages, loss of future income, and property damage.   Non-economic damages include pain and suffering, loss of enjoyment of life, and, loss of consortium for the injured party’s spouse.  If the accident was the result of egregious or intentional behavior of the at-fault party, the court may also award the plaintiff punitive damages. 

            The same damages are available for victims of rideshare accidents as for victims of other automobile accidents.   Florida’s personal injury protection scheme requires each driver’s insurer to provide a personal injury protection policy to pay up to $10,000 for personal injuries sustained by the driver and/or his passengers.   An injured party must claim against this policy first as a source of payment for treatment of his injuries and lost wages.  He may collect from the at-fault driver’s insurance company for damage sustained by his vehicle in the accident. 

 Limitation on Damages for Motor Vehicle Accidents

             While an at fault driver may have resources to pay for his victim’s injuries far in excess of the $10,000 personal injury protection limits, Florida law limits an injured motorist’s right to sue in these circumstances.  Florida law prohibits injured drivers and passengers to sue an at-fault driver for non-catastrophic injuries.  The permanency requirement of F.S. section 627.737 provides that a driver may sue to recover damages sustained in a car accident (both economic and non-economic) only if the plaintiff has suffered death or serious bodily injury (such as significant scarring and permanent physical impairment).  Importantly, this prohibition applies to motor vehicle accidents, but not to motorcycle accidents.

 Proving Your Case

A plaintiff injured in a car accident who meets the permanency requirement of  F.S. 627.737 has the burden to show by the greater weight of the evidence that the at-fault driver was negligent in order to recover for his injuries. 

Most motor vehicle accident cases are grounded in the negligence theory of liability.   A successful negligence plaintiff must show that:

A.    The defendant driver owed him a duty of care.

B.     The defendant driver breached this duty of care.

C.     The defendant driver’s breach caused the plaintiff to suffer injury.

D.    The plaintiff’s injuries resulted in compensable damages (in Florida, this means a significant injury or death).  

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

Summary

As you can see, getting compensated for rideshare accidents can be complicated.  . Florida Accident Lawyer John Clarke represents victims of rideshare and other hired vehicle accidents deal with insurance issues and receive compensation for their injuries.

Bicycle Accidents in Florida

Florida is a popular place for bicyclists due to its warm weather and many beaches. However,   according to the U.S. News and World Report, Florida is the third most dangerous state for cyclists.. The high rate of bicycle accidents could be down to Florida’s recent surge in population and  relative lack of bicycle-related infrastructure.

This article will give you a primer on what to do if you are injured in a bicycle accident and a summary on the laws and procedures that govern bicycle accidents in Florida.

What to do after an accident:

A.  File insurance claim:

The first step to take if you are injured in a bicycling accident is to file a claim with the insurer of the at-fault party. After a claim is opened, the claim will be assigned to an adjuster. This individual represents the insurer’s financial interests, so he or she will attempt to deny or resolve the claim for as little as possible. It is important to cooperate with the insurance company’s investigation of your claim, but you should hire an attorney to look out for your own interests.

Florida has a no-fault insurance scheme, which provides that each party in an accident must avail himself of his own insurance coverage before seeking contribution from another party’s insurance, regardless of who is at fault.

This means that if you are injured while riding a bicycle but you own a car as well, you need to file a claim against your Personal Injury Protection insurance policy to pay the first $10,000 of your injuries.  If your injuries exceed your PIP coverage, you can sue the other driver and his insurance company to pay the balance of your claim.

 B. Call the police

Make sure to notify the authorities immediately after an accident. This will help to document what occurred and verify the identity of all parties involved.

The police not only document the circumstances and witnesses to an accident, but also investigate the cause of accidents (drunk driving, for example).

C. Collect evidence

Collect as much evidence as you can of the accident  as quickly as possible.  Evidence that may be important to prove your bicycle accident includes:

- Video surveillance captured by traffic cameras

- Names and contact information of eye witnesses

-Data from the “blackbox” (event data recorder) of any cars involved in the accident

-Physical imprints of the accident on vehicles involved

 D. Seek medical assistance

Do this as soon as possible. Seeking prompt medical attention is a sign that you have suffered serious injuries. 

Write on the intake form of your medical provider that the reason you are seeking medical care is injuries sustained in a bicycle accident.

When you are discharged, ask your provider for copies of all your medical records.

E. Hire an experienced personal injury lawyer

It is crucially important that you hire someone to represent you who understands how to evaluate your claim and put forward your best case.

Summary of Florida Laws on Bicycles:

According to F.S. Section 316.2065, “Bicycle Regulation,” bicycles are treated as vehicles. Therefore cyclists have same rights and duties as do drivers other vehicles, such as: stopping at all stop signs and red lights, riding with flow of traffic, using lights at night, yielding right of way when entering a roadway, and yielding to pedestrians at cross walks. Additionally:

·        

• You cannot carry passengers on a bicycle that is not intended to carry more than one person.

• Your bicycle must have a fixed, regular seat for riding.

• Parents must not allow minors to violate any of Florida’s provisions.

• All bicycles must come equipped with a braking system.

• If riding on the sidewalk, bicyclists have the same rights and duties as a pedestrian.

• Bicycles must be equipped with a lamp when operating between sunset and sunrise.

• Bicyclists must use the designated bicycle path when not traveling at the speed of other traffic.

• Bicyclists can get out of the bicycle lane in anticipation of making a turn.

• Other laws can be found here.

Damages in Florida personal injury cases

Injured individuals can request compensation for damages they’ve suffered, including medical expenses, pain and suffering, lost wages, and punitive damages, as applicable.

Statute of Limitations

The statute of limitations limits the time you can file a claim. Florida’s  statute of limitations for personal injury cases is four years from the date of injury, which  drops to two years if it is for wrongful death. If the claim is against the city, county or the state, there is a 180-day investigatory period and then a three-year statute of limitations (again, two years if it involves wrongful death).

If you have been injured in a bicycle accident, call Florida personal injury attorney John Clarke for a free consultation at (305)467-5560!

DEFECTIVE PRODUCTS

Imagine if the fuel tank of your car exploded during a collision with another vehicle.  Imagine if a medication that you took to cure digestive problems caused a deadly cancer.  Well, these scenarios actually occurred .  And it was largely through the effort of lawyers who sued the manufacturers for making defective products that the problems were exposed and corrected.

Elements of a Defective Product Case

Generally speaking, the law puts the burden on a manufacturer to produce a safe product. It  holds the manufacturer liable for all injuries that occur when the product is used as intended.  It doesn’t matter whether the manufacturer knew the product to be dangerous.  . The first element that a defective product plaintiff needs to prove is that the product was defective.

The law groups product defects into three categories: design, manufacturing, and marketing defects. Marketing defects occur when a product is advertised or sold for a dangerous purpose. Marketing defects  may include inadequate warnings.  Most of the cases against the tobacco industry in the last several decades fall into this category .  In these cases, The plaintiffs typically convinced courts that the tobacco companies had failed to warn consumers of the risks of smoking, and due to this failure, the consumers became chronic smokers and suffered illness and death as a result.

A design defect occurs when a product’s design makes it unreasonably dangerous. The gas tank in the Ford Pinto that I discussed above was defectively designed because it wasn’t insulated from the engine.

A manufacturing defect is a problem that occurs during the manufacturing process that makes the product unreasonably dangerous and to not conform to the intended design of the product.  This is often an issue with cars that have complicated supply chains where many different companies can supply parts. Often cars are recalled to fix manufacturing defects that cause safety problems.

The other elements that you would need to prove are:

1. Loss. that you suffered an actual injury or financial loss as a result of using the manufacturer’s product.

2. Cause. that the product’s defect caused your injury.

3. Product used as intended. You must show that your injury occurred when you were using the product as the manufacturer intended it to be used.

Liable Parties

So who is liable if you are injured by a defective product? Florida law makes all parties in the chain of distribution of a defective product liable when the defect causes injury.   So, if you purchased a defective lawnmower at Home Depot that caused you an injury, you have the option of suing Home Depot the manufacturer or both for your injuries.  

Damages

In a defective products suit, you can recover compensation for:

• Medical bills for treatment of injuries caused by the defective product

• Lost income

• Emotional distress resulting from the accident or injuries

• Pain and suffering

• Wrongful death if the defective product caused the death of a family member

Important Laws and Cases

Florida Statute Section 768.81 defines a product liability action.  West v. Caterpillar Tractor Co. , 336 So. 2d 80 (Fla. 1976) and Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015) are important cases in that they set forth the strict liability consumer expectation test for product design defects.

Defective products cases are often complex and  not what they initially seem.  When products turn out to be dangerous and cause injury that’s when you need a good defective products  lawyer on your side.

If you or a loved one have been injured by a dangerous product, call Fort Lauderdale personal injury lawyer John Clarke for a free consultation at (954) 556-8952..

Swimming Pools are Attractive Nuisances

    Florida’s Attractive Nuisance Doctrine provides that a property owner may be liable when a child wanders onto his property and gets injured by a dangerous condition. Attractive nuisance is a type of negligence that is based on a property owner’s liability to maintain his premises in a safe condition.

In general, an owner is liable for a child trespasser’s injury if :

(1)  he/she knows or has reason to know that the area where a dangerous condition exists can be trespassed by a child, 

(2)  the dangerous condition poses an unreasonable risk to a child’s safety, 

(3)  the child is too young to realize the risks associated with the dangerous condition,

 (4)  it is less of a burden to remove the danger than the risk posed to a child, and

 (5)  the owner fails to either remove the danger or protect the child from the risk of harm. 

      The following abandoned or discarded items are specifically declared to be attractive nuisances to children by Florida Statute Section 823.08 (because they have air-tight doors):

-Refrigerators

-Iceboxes   

-Washers

-Dryers

      The most dangerous attractive nuisance in the Sunshine State would be swimming pools.  Other potential attractive nuisances include lawn mowers, trampolines, and unstable or decrepit structures, such as tool sheds.

   It is important to note that an attractive nuisance must be a feature that is man-made (like a playground or pool).  A natural feature, such as a lake or a hill, is not an attractive nuisance, so a property owner does not have the same duty to protect children from potential injuries there.

  In addition to liability to trespassing children under the attractive nuisance law, a property owner owes all guests on his property a duty of care to maintain it in a safe condition.

 The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

4. Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law. 

 Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

If you have been injured in an accident, call personal injury attorney John Clarke today at (305)467-5560 for a free consultation!

Getting Paid for Car Accident Injuries

Florida law only requires drivers maintain minimal insurance to cover the costs of treating accident-related injuries.  There are several types of insurance which pay these expenses .  Pursuant to Florida’s no-fault insurance scheme , the primary insurance that pays for a vehicle owner/occupant’s injuries is his own personal protection insurance.  Once this coverage is exhausted, the the party that caused the accident, and his bodily injury insurance, becomes liable to pay the injured party’s medical bills.  Finally,  a vehicle owner may purchase uninsured motorist insurance to  that will pay for injuries caused by another driver when that driver is uninsured or underinsured.

Personal Injury Protection

Florida has a “no-fault” insurance scheme which requires all drivers to maintain personal injury protection insurance (PIP). This insurance is  designated by statute to be the primary payment source for automobile occupants’ injuries, and must be exhausted before other insurance coverages for bodily injury can be tapped.   Every owner and driver of an automobile carries a PIP policy that will be the first source of payment for injuries that he and his passengers (if they don’t have their own PIP policies) sustain in an accident, regardless of who is at fault.

Pursuant to Florida Statute § 627.736, the minimal coverage that a Personal Injury Protection policy must provide is $10,000 per eligible claimant.  Furthermore, it must cover at least 80% of the insured’s medical expenses, and 60% of his  lost wages.

Bodily Injury Liability Insurance

Bodily injury liability insurance pays for injuries to others that are caused by a vehicle owner/driver’s negligence  .  Florida law does not technically require drivers to  carry bodily injury liability insurance. However, there is a separate  law that states that a party who has been involved in a serious accident or found guilty of certain traffic-related offenses must prove that he is “financially responsible”, and this proof includes carrying bodily injury liability insurance of at least $10,000 per injured party and $20,000 per accident. For this reason alone, it is important that a driver maintain bodily injury liability coverage in these amounts.

There are several other good reasons to carry bodily injury liability insurance.  .  First, accidents are expensive. According to a 2013 study, the average auto  insurance claim for bodily injury in the United States was $15,443 and rising faster than the cost of living on a yearly basis.  This amount is significantly higher than Florida’s personal injury protection coverage limit of $10,000. If you cause an accident that results in injury to another driver, you will be personally liable for any medical bills of the injured party that insurance doesn’t pay.  Therefore, I recommend that a driver purchase at least $100,000 per person and $300,000 per crash of bodily injury insurance to protect himself from these financial risks.

Another reason to carry bodily injury coverage is that an insurer will require that you  have this coverage in place before it will sell you  uninsured motorist insurance. Uninsured motorist insurance  will  reimburse you for injuries sustained in an accident caused by another driver, when that driver lacks sufficient bodily injury insurance to cover them.  Since Florida law doesn’t require drivers to carry any bodily injury liability insurance , many do not.  So, it is frequently the case that drivers at fault in Florida accidents do not have insurance to cover injured parties .  Therefore, buying UM coverage is an important way that a Florida driver can insure his accident injury-related costs are reimbursed regardless of the other driver’s insurance status.

What Expenses will Bodily Injury Liability Insurance Cover?

Bodily injury liability insurance generally covers all economic damages for an accident victim’s injuries, including medical bills, lost wages, funeral expenses, and legal fees.  It will not, however, pay for special damages such as pain and suffering, loss of quality of life, and loss of consortium.

Can You Sue Another Driver Directly for Your Injuries?

Yes, vehicle operators have a duty of care to obey all traffic laws and drive with reasonable care. They can be sued if they negligently cause an accident that injures others.  An injured party will have to prove that the offending driver breached his duty of care, that the breach caused him injury, and the amount of damages he suffered as a result,  in order to win his lawsuit.

It is important, however, to consider a defendant’s financial resources before commencing a lawsuit.  Most people don’t have a lot of liquid assets to pay a potential judgment.   Moreover, Florida’s homestead law protects people’s homes from being sold to compel payment of debts such as judgments for personal injuries.  So, often it is not worth suing other drivers even when you can prove their negligence.

Florida law also restricts the damages that a party injured in an automobile accident may recover in lawsuit in an important way. Florida Statute § 627.737 exempts owners and occupants of vehicles who cause accident from liability to pay victims non economic damages (pain and suffering,  loss of enjoyment of life, punitive damages) unless the victim suffered a catastrophic injury. This statute defines a catastrophic injury as one which causes:

-significant and permanent loss of an important bodily function

-permanent injury

-death, or

-significant or permanent disfigurement or scarring.  

     This restriction sharply reduces the financial recovery of most parties injured in automobile accidents in Florida.

The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

4. Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law. 

Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

Summary

In summary, the laws that govern insurance for injuries in automobile accidents in Florida are quite complicated.   Florida’s no-fault insurance scheme provides that an injured party must first claim against his own PIP policy before seeking recovery from other sources.  The law does not mandate drivers to carry enough insurance to cover the average cost of an automobile related injury.  Therefore,  all drivers should carry bodily injury liability and uninsured motorist insurance in order to financially protect themselves.

If you have been injured in an automobile accident, call personal injury attorney John Clarke at (954)556-8952 for a free consultation concerning your legal rights.

Malicious Lies! Defamation of Public Figures

Defamation is the act of communicating a false statement to a third party that causes harm to one’s reputation.  It consists of slander (spoken falsehoods) and libel (written falsehoods).   Check out my previous blog post for a general summary of defamation law in Florida.

It is common for media outlets to report on public figures, sometimes publishing falsehoods that injure their reputations.  Prior to 1964, it was common for public figures to recover damages against media outlets for these defamatory statements.  However, in New York Times Co. v. Sullivan, the U.S. Supreme Court  held that  the freedom of speech protected by the First Amendment to the. Constitution restricts the ability of American public officials to sue for defamation.  Specifically, the Sullivan Court required that a public official (in this case, a city commissioner of Birmingham, Alabama)  prove not only that the alleged defamer made a false statement to a third party about the official , but also that the statement was made with actual malice.

The rationale for the actual malice standard  is that it protects the media when it reports on  public figures but makes erroneous but honest statements.  The Sullivan holding recognizes that it is often difficult  for a news outlet to investigate the truth of every detail of every story prior to publication.  Given these difficulties, liability for defamation claims disincentivized the media from reporting on the conduct of public officials that could be of great public importance. Therefore, the application of a higher standard of liability for defamation of public officials, “actual malice”,  was necessary to promote free speech.

The Supreme court has steadily increased restrictions on defamation claims since Sullivan. In Curtis Publishing Co. v Butts, the Supreme court expanded the class of people to whom the “actual malice” standard applied from public officials to public figures (and held that a football coach was a public figure because he was prominent in the public eye).   In Gertz v. Robert Welch, Inc., the Supreme Court held that states were free to establish their own standards of liability for defamatory statements made about private individuals.  However, the court held that, if the state standard was lower than actual malice, only actual damages may be awarded. 

 

Actual Malice

Let’s take a look at what “actual malice” means and what kind of evidence is needed for a public figure to win a defamation claim.  According to Sullivan, a statement  is made with actual malice when it is uttered or published “with knowledge of its falsity or with reckless disregard of whether it was true or false   When competent evidence shows that a defendant had serious doubts about the truth of a statement but published the statement anyway, there is reckless disregard for the truth.  The bottom line is that when someone says or publishes a statement they know or strongly suspect to be false about someone to a third party, there is actual malice.  And when there is actual malice, a public figure may recover for defamation  (Incidentally, under Florida law, proving actual malice also entitles a defamation plaintiff to special damages).

General vs. Limited-Purpose Public Figures

Case law since Sullivan has drawn a distinction between general and limited-purpose public figures.  In Gertz, the Court held that  a private person becomes a limited-purpose public figure when he injects himself into a public controversy (by holding a press conference, etc.). When an individual thrusts himself into the spotlight, the court held, he should expect to be the subject of media scrutiny.

Therefore, according to Gertz, defamatory speech about any conduct by a general-purpose public figure (like Oprah Winfrey) would be subject to the actual malice standard. Defamatory speech concerning someone who is only known to the public because of a single incident ( like  Richard Reid, who tried to detonate a shoe bomb on a flight in 2001) would only have to meet the actual malice standard if it addressed the thing that the person is known for (in this case, shoe-bombing).   Defamatory speech concerning anything else about the limited-purpose figure would be subject to liability for negligence.

Defamation

If you have been the victim of defamatory speech, you may have a claim for damages against the defamer.  Contact experienced attorney John Clarke for a free consultation to discuss your claim at (305)467=5560.

Recovering for Catastrophic Injuries

Catastrophic injuries are all too common in the sunshine state today.  Florida is a highly-urbanized state with an extensive and crowded highway system.   Catastrophic injuries, which by nature are severe and long-lasting, typically require extensive and expensive medical treatment. They often rob their victims of the ability to perform basic life functions and diminish their quality of life.  Besides causing physical and psychological impacts, catastrophic injuries can cause financial devastation.

For this reason, it is important for you to hire an experienced Florida personal injury attorney to fight for you in case you suffer such an injury.   

Definition of Catastrophic Injury

There is not a single, straightforward definition of “catastrophic injury” in Florida law.  Florida Statute Section 627.737 defines serious types of injuries incurred in automobile accidents for which a victim may recover for pain and suffering as follows:

(a) Significant and permanent loss of an important bodily function.

(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

(c) Significant and permanent scarring or disfigurement.

(d) Death.

Florida Statute Section 440.15, which deals with workers’ compensation for disability, considers a catastrophic work injury to include:

(a) Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;

(b) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

(c) Severe brain or closed-head injury.

(d) Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands;  and

(e) Total or industrial blindness.

Accidents That Cause Catastrophic Injuries

Most common type of accidents that cause catastrophic injury include:

•   Car Accidents

•   Motorcycle Accidents

•   Defective Products

Proving Catastrophic Injury Cases

In order for you to prevail in a personal injury case, you need to prove that the Defendant’s negligence caused your injury.  Then you have to prove what damages you suffered as a result of this negligence.  In a catastrophic injury case, where the injury typically impacts all domains of the victim’s life,  damages can be very substantial.  It is important that you or your attorney understand all types of compensable damages that you may be eligible for in order for you to get maximal compensation. 

 The Four Elements of Negligence in Florida

Negligence occurs when an individual fails to exercise the level of reasonable care expected to minimize the risk of harm to others. In Florida, negligence laws not only define what constitutes a claim but also outline the types of damages a plaintiff may pursue. The four essential elements of negligence in Florida are duty of care, breach of duty, causation, and damages. Here’s a breakdown:

1. Duty of Care – This refers to the legal obligation a person has to act (or refrain from acting) in a certain way based on their relationship to others. For example, every driver has a duty to operate their vehicle safely and in accordance with traffic laws to protect others on the road. Similarly, a business owner has a duty to take reasonable measures to keep their premises safe for visitors.

2. Breach of Duty – A breach occurs when someone fails to uphold their duty of care. For instance, a driver breaches this duty by speeding, tailgating, or being distracted while driving. A business owner breaches their duty by neglecting to promptly clean up a spill or fix a leaking freezer that creates a hazard in a walkway.

3. Causation – Causation links the breach of duty directly to the harm suffered. While it might seem straightforward, determining causation can be complex, especially in cases involving multiple parties or factors. To establish causation, it must be shown that the breach of duty logically and foreseeably led to the injury or damage.

4. Damages – Finally, the plaintiff must demonstrate that they suffered compensable injuries or losses due to the breach of duty. This can be proven through evidence like medical bills, lost wages, or property damage assessments. Additionally, non-economic damages such as pain and suffering or loss of enjoyment of life are also recoverable under Florida law. 

 Proving Your Case at Trial

In order to prevail at trial, you must prove the elements above by a preponderance of the evidence (in other words, show that it is more likely than not that the Defendant was negligent). You may need to hire experts, such as medical doctors, to establish the extent of your injuries and the present and future costs of treatment. You will also need to gather evidence concerning the Defendant's allegedly negligent action, which may involve taking statements from him under oath (depositions) or getting physical custody of evidence (through the use subpoenas).

 If you or a loved one are injured in South Florida, contact Florida injury attorney John Clarke at  (954)556-8952 today for a free consultation!

Getting Paid for Pain and Suffering in a Personal Injury Lawsuit

   Often when one gets injured, the worst part of the experience is lingering pain.  For this reason, pain and suffering is a distinct category of damages that is compensable in a personal injury lawsuit.  Pain and suffering is a non-economic damage because it does not have a value attached to it.   Nonetheless, courts and insurance companies have developed methods to place a dollar value on it.

Multiplier Method

Insurers often approximate general damages, which include pain and suffering, by applying a multiplier to the out-of-pocket damages suffered by the victim. The first step would be to add up all the economic damages (which could include medical expenses, approximated future medical expenses, lost wages, loss of earning capacity, property damage, etc).  The next step would be to determine a multiplier between 1.5 and 5 to apply to the economic damages.  The severity of the injuries suffered by the victim should determine which multiplier is selected.   The resulting product should yield a grand total for the victim’s damages.

Specific factors that bear on the severity of the injuries:

-presence of permanent physical impairment

-psychological effects of the injuries

-the day to day pain experienced as a result of the accident

-inability to perform tasks of daily life

Sample Damage Calculation

Vanessa Victim is shopping at Walmart. She suddenly slips and falls on a wet floor, which results in severe knee and back injuries.  Despite surgery, her back is in chronic pain and the pain prevents her from playing tennis, her lifelong passion. The damages that flow from Vanessa’s injuries are calculated as follows:

Special damages (medical bills, lost wages, rehabilitation):              $100,000

Choice of multiplier – because Vanessa suffers loss of quality of life and pain, the multiplier is 4.5.

Total damages - $450,000

 Limitations to Pain and Suffering Damages in Florida

 Unfortunately, Florida law limits recovery for pain and suffering for personal injuries for automobile accidents.   Florida has a “no fault” auto insurance system.  This means that, for most auto accident claims, the victim can not sue the other driver, even if he is completely at fault.  Instead, the victim’s first source of payment would be his own personal injury protection (PIP) insurance policy that pays 80% of medical bills and 60% of loss of income up to a limit of $10,000. 

In order to recover directly from the at-fault driver for injuries, the victim must suffer a “serious injury”.  Florida law defines this term to encompass:

 ·         Significant and permanent loss of an important bodily function

 ·         Permanent injury within a reasonable degree of medical probability  

 ·         Significant and permanent scarring or disfigurement 

  Conclusion

            As you can see, estimating damages in a personal injury lawsuit is complicated and depends on many factors.   This is one reason why it is very important that you use an experienced personal injury lawyer to maximize your recovery.  Call Florida personal injury attorney John Clarke is you have been injured at (305)467-5560.  You never pay a fee unless he recovers for you.

Planning For Your Childrens' Futures

Many clients with young children ask me how to plan for the possibility that  they may die before their children become adults.  This is a particular concern for a single parent.  In this scenario, there are two issues that need to be addressed: who will care for the children until they become adults, and how will the assets that the parent devises to the children be managed during this time.

Pre-Need Guardian Declaration

A pre-need guardian declaration is an instrument prescribed by Florida Statute § 744.3046 in which a competent adult tells a court whom she would like to be a guardian of herself or her minor children under certain circumstances.  The declarant must reasonably identify the chosen guardian in the document, sign it in front of 2 witnesses, and then file it with the local clerk of court.

  A guardianship for minor children needs to be established when the last surviving parent dies or becomes incapacitated.  A parent plans for this contingency by filing a Pre-Need Guardian Declaration while she is alive and well (hence “pre-need”).  If the children subsequently become orphaned, the court will hold a hearing to determine who to appoint as their guardian.  The Court considers the wishes expressed by the parent in the pre-need guardian declaration in this proceeding.  Ultimately, the Court has absolute discretion to select a guardian that will best serve the interests of the  children.

 Testamentary Trust

A parent can plan for her children’s financial well-being by creating a testamentary trust in her will.  This provision typically creates an irrevocable trust upon the death of the testator. In the case of a testamentary trust for a minor child, the trust corpus will consist of assets that the parent devises to a trustee for the benefit of the minor child.   The Trustee will manage these assets on behalf of the child until he becomes an adult.

Uniform Transfers to Minors Account

The Uniform Transfer to Minors Act is a model law intended to simplify custodial transfers of assets to minors.  A UTMA account provides some of the advantages of a trust, but is easier to set up and less costly to administer.

Florida’s version of the UTMA can be found at  § 710.101 of the Florida Statutes.  It provides for a party to transfer assets to an account controlled by a designated custodian (who could be the transferor) for the benefit of the minor.  Upon transfer to the UTMA account, the property belongs to the minor, but the custodian manages it as the minor’s fiduciary.

A UTMA is a popular way to transfer funds for the benefit of a minor beneficiary when the transferor definitely intends for the minor to take control of the asset when he becomes an adult.  A trust, on the other hand, would be preferred in a situation where the transferor does not wish for the minor to become outright owner of the asset when he reaches the age of majority.  Also, the trust affords the beneficiary protection from collection efforts by his creditors while a UTMA account, to which the beneficiary has legal title, is not protected from such actions.

Contact attorney John Clarke at (305)467-5560 if you would like assistance with estate planning.

Special Needs Trusts

       A special needs trust (“SNT”) is an arrangement set up by a special needs individual or a third party to provide income to this person while allowing him to receive public benefits (such as SSI or Medicaid).

         A special needs trust is contemplated by United States Code 42 USC Section 1396p(d)(4).

Necessity of Special Needs Trusts

          If money were put in the special needs beneficiary’s personal bank account, the funds would be counted against him in terms of qualifying for needs-based public benefits. Funds put in a qualifying SNT, on the other hand,  are not countable against  his eligibility for such programs.    The “catch” is that the  goods and services purchased by the SNT must not be provided  by the government benefit received by the special needs individual.

Definitions: First Party and Third Party SNTs

        A first-party SNT is funded by the special needs individual himself while a third party SNT is funded by someone else (often a family member).  A first-party SNT is also known as a “self-settled” SNT because the support applicant is both the creator and beneficiary of the trust.  Most provisions of the self-settled trust are similar to those of a third-party SNT. The most prominent  rules of SNTs of both varieties are:

   - a restriction against distributions that would eliminate or reduce the beneficiary’s eligibility for public benefits, and

   -  a prohibition against the special needs beneficiary demanding income or principal from the SNT.

             Third-party special needs trusts are  typically created by family members of special needs individuals to plan for their future care. For instance a third party SNT may be set up in a parent’s will or living trust for the benefit of her child. These arrangements are designed to prevent  the special needs descendant from receiving an inheritance that would cause him to lose eligibility for government assistance.

            Self-settled SNTs, on the other hand,  are used by public assistance beneficiaries who suddenly receive a lot of assets. For instance, if a medicaid recipient is involved in a car accident that results in a settlement or award, the resulting payment may disqualify the accident victim from continuing to receive benefits unless it were placed in a self-settled trust. If the parent of a special needs individual failed to create a special needs trust in her estate planning documents, her bequest to this heir may  disqualify  him from receiving government benefits.unless he were to create his own self-settled SNT and assign the devise to it.

Differences Between First-Party and Third-Party SNTs  

               Self-settled SNTs in Florida are different from third-party SNTs in three ways. First, only disabled persons under the age of 65 may create a self-settled SNT. Third-party SNTs may be established by anyone at any time regardless of the age of the beneficiary. Also, self-settled special needs trusts must be irrevocable; the disabled creator of the trust cannot change his mind and either amend or undo his trust. Third-party trusts, by contrast, may be freely amended or terminated by the third-party creator until her death. Finally, first-party SNTs must provide that the SNT pay all assets in the trust at the time of the beneficiary’s death to the government to the extent required to reimburse for the  lifetime Medicaid benefits received by the beneficiary.  Since a third-party SNT is funded by the third-party’s assets, the trust creator is free to devise the trust assets as he chooses.

Contact Fort Lauderdale Attorney John Clarke at (305) 467-5560 for all your estate planning and elder law needs.

The Elective Share: What Your Spouse Inherits

            Florida law provides that you are entitled to a minimum 30% share of your spouse’s assets after he dies, regardless of what his will says.   This is called the elective share. The elective share prevents an individual from disinheriting his spouse.  In order for you to receive an elective share, you have to file an election with a probate court after your spouse’s death.   Here is what you need to know about this important law:

 

Why an Elective Share

The elective share is intended to protect a surviving spouse from impoverishment.  The underlying assumption is that a marriage is an economic partnership.  Regardless of how property is titled, a portion of the property that a spouse holds at death should inure to his widow.

What Property is in the Elective Estate

The decedent’s elective estate includes not only the probate estate, but many additional assets as well.  In Florida, the elective estate includes:

• Property that passes to the surviving spouse upon the decedent’s death

• The decedent’s probate estate

• The decedent’s interest in property that passes by right of survivorship at death (such as in joint tenancy)

• Property held in revocable trusts

• Certain property transfers the decedent made up to one year prior to his death

• Death benefits paid by retirement plans

• Joint bank accounts and “transfer on death” accounts

• The decedent’s interest in the cash surrender value of life insurance policies on the decedent’s life

Satisfaction of the Elective Share  

Under Florida law, a surviving spouse who takes an elective share is entitled to a percentage of the value of the elective estate. In order to satisfy the surviving spouse’s elective share, the assets in the elective estate are distributed in the following order:

1. Assets that pass to or for the benefit of the surviving spouse

2. Assets from the remainder of the decedent’s probate estate and any revocable trusts

3. Remaining assets in the elective estate that pass to other recipients

4. All other assets in the elective estate.

Deadline for Claiming an Elective Share

A surviving spouse who wishes to claim an elective share must file the election before the first of these deadlines:

-Six months after service of notice of  probate administration, and

- Two years after decedent’s death.

Defenses to the Elective Share

A surviving spouse will generally be entitled to the elective share unless an interested party successfully proves that she:

-procured the marriage by fraud, duress, or undue influence, or

-killed the decedent

The Elective Share Can be Waived

An individual can waive her rights to receive an elective share in her spouse’s estate by executing a valid pre-nuptial or post-nuptial agreement.

Award of Attorney Fees and Costs in Elective Share Proceedings

A spouse who files an elective share action can recover fees and costs from the decedent’s estate under certain circumstances.  Florida Statute Section 732.2151 provides that the court may award prevailing party fees and costs when there is an objection or dispute over a surviving spouse’s entitlement to or the amount of the elective share.

Contact attorney John Clarke at (954) 556-8952 for all your estate planning and probate needs.