Equifax Data Breach Settlement: Find Out if You Were Affected and How Much You Can Recover

Equifax Data Breach Settlement: Find Out if You Were Affected and How Much You Can Recover

The majority of American consumers were affected by the equifax data breach (including me). A settlement has been reached in the class action suit, and equifax has agreed to pay each member of the class $125 plus compensation for time and money spent dealing with the impact of the breach. One can easily check if one is a member and file a claim here: www.equifaxbreachsettlement.com.
The deadline for claims is January 22 2020, and payment of claims should occur shortly thereafter.

Who is Liable for  Water Damage to My Condo?

Who is Liable for Water Damage to My Condo?

A Common Legal Quagmire in the Sunshine State…

Plumbing problems often occur in condominium buildings in florida .   Due to the shared structural elements of condominiums,  a pipe that bursts in one unit often causes collateral damage to neighboring units.  Determining liability for water damage  under Florida law can be challenging as there are a patchwork of laws, rights, and duties that  could apply.

Florida’s Condominium Act

FS 718.111, Florida’s condominium act, defines common elements in a condominium and assigns to the condominium association a non-delegable duty to maintain and repair these elements.  This duty includes maintaining insurance on the elements at all times.  

Section 718.111(11)(f) provides that an association has a general duty to maintain all structures on its premises except the following (which are the responsibility of the individual owners):

        all personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit. Such property and any insurance thereupon is the responsibility of the unit owner. 

So, the association has the ultimate responsibility to repair drywall, ceilings, and floors, but the individual unit owner is generally responsible for maintenance and repair for any coverings to these surfaces.  

  Even though the Association has ultimate responsibility to maintain common elements, its financial responsibility for repairs can be shifted to individual owners depending on the cause of the water damage.  The Florida Condominium Act (“Act”) decides liability depending upon whether the damage was caused by an insurable event (such as a weather event) or other reasons (such as normal wear and tear, an intentional act or a negligent act).  The Act mandates insurance coverage requirements for all condominium associations:

Any portion of the condominium property that must be insured by the association against property loss . . . which is damaged by an insurable event shall be reconstructed, repaired, or replaced as necessary by the association as a common expense.  Fla. Stat. § 718.111(11)(j).

 

      The effect of this mandate is that, when damage results from an insurable event, the liability provision of the Act quoted above will control.  On the other hand, when damage results from a non-insurable event, then other provisions of the Act or  the Association’s governing documents (Declaration and Bylaws) may control and may shift responsibility to the unit owner for the damage.   

What About When Plumbing Issues in a Neighboring Unit Cause the Damage?

  Where a neighboring unit is the source of the leak, and the specific cause of the leak was not foreseeable, such as a burst pipe, the association will be responsible for common elements as defined in the act (see preceding section) Any damage to the interior of the unit is the unit owner’s responsibility pursuant to § 718.111(11).  The owner’s condo unit insurance policy should cover all damage not covered by the association’s policy.  Because of the liability of individual owner’s for interior damage, many condominium associations require that all owners carry property insurance coverage for this type of damage.

If, however, the damage results from the neighboring unit owner’s failure to maintain or timely fix a foreseeable or known issue, then different rules apply.  A unit owner is responsible for the costs of repair or replacement of any portion of the condominium property that is damaged by his negligence or intentional conduct, or his failure to comply with the terms of the declaration or rules of the association. § 718.111(11)(j)1.  Also, the association is not required to pay for any repair or reconstruction expenses due to property loss or damage to any improvements installed by a current or former owner of the unit if the improvement benefits only the unit, whether or not such improvement is located within the unit.  . § 718.111(11)(n).

 

 

Example:

An upstairs unit owner knows that his toilet backs up periodically but neglects to have it serviced.   He attempts to use the toilet in spite of its condition, and then the backup of sewage causes a pipe to burst in the downstairs unit, which results in flooding, and damage to the downstairs unit.  Pursuant to Florida Statute § 718.111(11)(j)(1), the upstairs unit owner would be liable for the damage to all portions of the condominium property not covered by the condominium’s insurance policy because he acted negligently.  The statute also holds the upstairs unit owner liable for the damage to the downstairs unit. 

 

As you can see, determining liability for property damage in a condominium can be a challenge, and may involve litigation.  If you have incurred damage to your condominium or are being asked to pay for damage to your neighbor’s unit, you need an experienced attorney on your side.  Call John Clarke Esq. today for a free consultation at (954) 556-8952!

How Does Your Homestead Exemption Protect You from Creditors?

How Does Your Homestead Exemption Protect You from Creditors?

If you own your house in Florida, you may know that it is protected from forced sale by creditors by the homestead exemption provided by the Florida Constitution.   Like most laws, however, the exemption from forced sale is not absolute.   What follows is a brief explanation of the claims that are exempt from forced sale and those that are not under Florida law. 

 

Article X, Section 4 of the Florida Constitution provides:  

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;

  Qualification of Homestead Property:

The debtor must be a permanent resident of Florida.   The homestead property must be his primary place of residence. 

 

Florida’s homestead exemption protects the homeowner from the following claims:

I.                Judgment Creditors:       Creditors who provide services to a homeowner which are not related to the purchase or maintenance of the house can not compel him to sell the house to secure payment.   Even if the creditor obtains a judgment from a competent court,  the creditor will not be able to place a lien on the homeowner’s property. Instead, the judgment is a “cloud on the title” of the homeowner’s property.  If the homeowner later sells the property, the closing agent will deduct the amount of the judgment, plus applicable interest from the seller’s proceeds (no title insurance can be issued to the buyer unless this takes place). 

 

 Exceptions to Florida’s homestead exemption:

 

I.                Mortgages: 

A mortgage is a voluntary agreement in which the borrower pledges his property as collateral to secure payment of money owed to the lender.    Contractual liens such as mortgages and home equity lines of credit are not protected by Florida’s homestead exemption. 

 

II.             Mechanic’s Liens: 

Florida statute section 713.03 provides that any person who performs services for the improvement of real property is entitled to a mechanic’s lien against the property to secure payment.   This right applies to architects, interior designers, engineers, surveyors, appraisers, and any other party who provides services to maintain or repair a homesteaded property.  In order to file a valid mechanic’s lien, a claimant must file a claim of within 90 days of the date the service was rendered. 

  

III.           Equitable Liens:  

When a plaintiff proves to a court’s satisfaction that he is an equitable owner of a property (even though he is not on the title),  the court can place an equitable lien on the property.  This type of lien attaches to a homesteaded property and the plaintiff can foreclose on the property to compel payment.  An equitable lien most commonly arises when a party provides funding for the purchase or development of a property but lets another party take title.  An equitable lien is a remedy for the plaintiff against the  unjust enrichment of the party who takes title. 

 

John Clarke is a Fort Lauderdale attorney whose practice includes estate planning, personal injury law, and real estate.  Contact John Clarke today at (954) 556-8952 if you need legal assistance!

 

Rental Car Accidents

Rental Car Accidents

 

What to Do If You Have an Accident in a Rental Car

If you are involved in a car accident in a rental car, you should take the following steps to protect yourself:

1.  Seek medical treatment for the injured parties.

2.  Report the accident to the police.

3.  Obtain contact information of the other parties involved in the accident and take pictures.

4.  Notify your insurance company.

5.  Notify the rental car company.

As is the case with car accidents in general, the party that caused the accident  has liability for injuries and property damage. For this reason, it is important to get the insurance information for all parties involved in the accident.

The twist with rental cars is that Florida law generally allows rental car companies to avoid liability for damage when the party who rents the vehicle gets into an accident.  Even if you did not cause the crash, your contract with the rental car provider makes you financially liable for damage to the vehicle.

How the Insurance Process Works in a Rental Car Accident

Florida law requires every driver to have a $10,000 personal injury protection policy to cover injuries and property damage.  This policy will generally pay out first in a car accident, regardless of who is at fault.  The at-fault party is responsible to pay for additional damages and injuries once this policy is exhausted.

If someone else’s negligence caused the accident, contact a personal injury lawyer to help you pursue a claim for compensation.

What Role Does Personal Injury Protection Play in a Rental Car Accident?

Florida requires all personal vehicle owners to carry Personal Injury Protection coverage. PIP coverage generally pays for the damage to the rental car and covers 80 percent of your medical bills and lost wages up to $10,000. The deductible must be paid out of pocket.

 

How is Negligence in a Rental Car Accident Determined?

Negligence means that a party was not doing what he was supposed to do.   In car accidents, the law looks at how the parties behaved and assigns blame to the party who was negligent. 

For example, if a driver runs a red light and collides with a car that has the right of way, this driver is negligent.

If the other driver’s negligence caused the accident, you first seek coverage from your PIP policy, as stated above.  Once PIP is exhausted, you can submit a claim to the at-fault driver’s auto insurance company to compensate you for your injuries and property damage.

If you were the cause of the accident, or no one is legally to blame,  you and your auto insurance are liable for the damages.

If you do not have personal auto insurance, you may have to purchase coverage from the rental car company. You cannot legally rent a vehicle in Florida without having insurance.

Does the Rental Car Company Ever Have Liability in an Accident?

As stated, the car rental company generally avoids liability for accidents under Florida law.   Exceptions apply, however.

If the rental car company was negligent in maintaining the car, and this negligence caused the accident, then the company is liable for the damages to the other vehicle and injuries sustained by its driver.  However, you may still be held liable for damages to the  rental car pursuant to the rental contract you signed with the rental car company.

Also, most rental car companies offer insurance coverage to consumers.    This coverage generally shifts liability to the rental car companies for damage caused in an accident, and is mandatory for consumers who do not have their own auto insurance.  For consumers who already have auto insurance, this insurance is usually not necessary nor cost-effective.  However, it may supplement your  auto insurance coverage in certain situations.  Policies offered vary, so it is important to check the fine print to determine what is and is not covered.

 

Credit Card Insurance 

Many credit cards offer some form of free rental car insurance to a consumer who pays for the rental car with the credit card, typically for damage to or theft of the rental car.  This insurance usually kicks in after your personal auto insurance pays. This secondary coverage is potentially valuable as it may reimburse you for your auto insurance deductible.

Also, some  credit cards offer primary coverage for rental cars , meaning it pays out first, so it is important to check with your credit card issuer on the applicable insurance for rental cars. 

 

How a Personal Injury Lawyer Can Help You

If you have been injured in a rental car accident, a  personal injury lawyer help you to enforce your rights.   A lawyer can help you obtain key evidence to prove your case.  Also, he can contact the at-fault party’s insurance company on your behalf and ensure that it pays the damages for which it is liable.  John Clarke is an experienced personal injury lawyer who handles rental car accident cases.   Call (954) 556-8952 today for a free consultation with John Clarke!

 

 

 

 

Segway Accidents

Segway Accidents

 

            Two wheeled electric scooters for standing riders have become extremely popular in many Florida cities.   They allow tourists to explore the sites of its cities and beaches on their own terms, and also are becoming an important mode of transportation for those who lack cars or driver’s licenses. Recently, several scooter sharing services, such as Bolt, Byrd, and Lime, have set up shop in Florida cities.  These services will rent a scooter to an adult who downloads their free app,  meets the criteria of the user agreement (varies by vendor), and pays the rental fee.  As a result, the number of scooters zipping around the sidewalks and streets of Florida has increased dramatically.  Unfortunately, a tide of serious injuries involving scooter riders has accompanied this phenomenon.  

 

        If you have been injured while riding an electric scooter, contact personal injury lawyer John Clarke to find out what your legal rights are.    Call (954) 556-8952 today!

Regulation of Standing Scooters

Under federal law, standing scooters are considered consumer products, not motor vehicles.  Therefore, these devices are not regulated by the National Highway Traffic Safety Administration. 

A. Florida Law

Florida statute section 316.2068 regulates the use of standing scooters in the sunshine state.   It provides, in pertinent part that a standing scooter:

·         May be operated on a road or street where the posted speed limit is 25 miles per hour or less

·         May be operated on a marked bicycle path

·         May be operated on a sidewalk, if the person operating the device yields the right-of-way to pedestrians and signals to pedestrians before passing them.

·         A standing scooter need not be registered and insured. 

·         A person under the age of 16 may not operate a standing scooter unless he wears a bicycle helmet and other safety gear

·         A county or city may regulate the operation of standing scooters for safety purposes.

In summary, Florida’s regulation of standing scooters is minimal from a safety perspective.   The state statute grants individual cities discretion to regulate or ban these devices based upon a determination of the safety of their use within the local environment.

 

B.  Legal Status of Standing Scooters in South Florida

Fort Lauderdale – in November 2018, the city passed an ordinance permitting standing scooters to be used on sidewalks by when rented from a licensed vendor.

Hollywood – in February 2019, the city passed an ordinance that imposes a blanket ban on the use of standing scooters, citing safety concerns. 

Miami Beach – banned as of May 2018

Miami -laws in flux

 

 

Who can be held liable when you are injured while riding a standing scooter?    

The first step to determine liability for your injury is to find the cause of the accident.  Sometimes a scooter driver is injured due to a collision with a motor vehicle, while other times the injury is caused by a mechanical problem or an obstacle.   John Clarke’s legal team will investigate your accident and determine how to get maximum compensation for your injuries.  

 

The Driver of a Motor Vehicle Played a Role in the Accident

Often motor vehicles hit riders on scooters.    If the motor vehicle driver hits a scooter because he is not paying attention to his surroundings or driving at an excessive speed, he may be held liable for the rider’s injuries due to his negligent conduct.  You may be able to recover damages from the driver’s insurance company.    

The Manufacturer or the Company that Leased the Scooter to You, or Both

If the standing scooter malfunctioned or failed to perform as designed and this fact played a role in your accident, you may be able to recover against the manufacturer, the vendor, or both parties.

How Much Can You Recover For Your Scooter Accident?

 Depending on the facts of your case and the nature of your injuries, you may be entitled to the following damages:

  • Medical treatment

  • Lost wages and benefits

  • Personal property damage

  • Pain and suffering

  • Permanent injuries

  • Wrongful death (if your relative died in the accident)

Call personal injury lawyer John Clarke if you have been injured in a segway accident!

If you have been injured in a segway accident, contact an experienced personal injury lawyer like John Clarke immediately.    Remember that you will need evidence in order to prove your case.  Our team will get to work immediately to help you gather the evidence required and put your best case forward.   Call John Clarke today at (954) 556-8952 for a free consultation!  

 

John Clarke is a Fort Lauderdale personal injury lawyer.  John Clarke is also a personal injury attorney in Miami, Palm Beach, and Hollywood who handles Segway accident cases.

 

 

 

 

 

 

 

 

 

Defective Products

Defective Products

Your Legal Rights When You are Injured by a Dangerous Product…

When you buy a product, you generally expect it to be safe to use. As a consumer, you rely on the manufacturer to design a product that will not cause harm when used as intended. 

 You also rely on the retailer that sells you the product not to sell you merchandise that has been recalled or is dangerous.   Sometimes, however, the unexpected happens, and dangerous products are sold to the public and they cause serious injuries.   From cars that catch on fire when their fuel tanks  explode to drugs that cause adverse effects,  dangerous products are a significant cause of harm to innocent consumers who rely on their safety. 

Manufacturers often have strong reasons to keep a defect secret. Product recalls and product liability lawsuits cost companies big dollars and injure their brand names. The potential for lawsuits and action by government regulators help make manufacturers accountable for the safety of their products.  

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

When Are Manufacturers Liable for Defective Products?

Florida law provides that manufacturers are strictly liable for dangerously defective products.   This means that a consumer injured by a dangerous product does not need to prove that the manufacturer negligently or intentionally produced a dangerous product.   Rather, he only needs to show that the product is unreasonably dangerous when used as intended.   The law eases a consumer’s burden of proving liability because manufacturers are in the best position to design, test, and sell products that are safe.

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 purpose other than its intended use. This type of defect may include inadequate warnings. Design defects are conditions that are inherent in a product’s design. For example, a lawnmower with a fuel filter made of flammable material would be a design defect. Manufacturing defects are problems that occur during the manufacturing process.   In other words, a product that has a manufacturing defect was produced in a way that didn’t conform to the manufacturer’s own specifications for it. 

It is important to note that Florida law makes all parties in the chain of distribution of a defective product strictly liable.   So, if you purchased a defective lawnmower at Home Depot that caused you an injury, you can sue Home Depot as well as the manufacturer.   Depending on the retailer’s contract with the manufacturer, the retailer may be able to recover against the manufacturer.

 Proving Your Case

To win your defective product case, you must prove the following elements:

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

  2. Defect or failure to warn. You must prove that the product was 1) defectively designed, 2) defectively manufactured or 3) that the manufacturer knew or should have known of the product’s risks and failed to warn you.  

  3. Cause. You must show that the defect proximately caused the injury.    

  4.  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

 In a product liability suit, you can recover compensation for:

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

  • Lost income / wages

  • Emotional distress resulting from the accident or injuries

  • Pain and suffering

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

Many product liability cases are resolved in class action lawsuits because dangerous products often cause injuries to many consumers in different areas. John Clarke can help you decide whether joining a class action product liability lawsuit is in your best interest.

Free Consultation with a Fort Lauderdale Defective Product Lawyer

If you have been injured by a dangerous product, you should call an experienced products liability attorney to help you.   John Clarke helps injured parties find justice while getting them the resources they need to move forward. John Clarke is an experienced Fort Lauderdale personal injury attorney who handles defective product cases.   John Clarke is also a products liability lawyer in Miami and Palm Beach. Call John Clarke for a free consultation at (954) 556-8952!

 

Slip and Fall Accidents: Your Legal Rights

Slip and Fall Accidents: Your Legal Rights

         Slip and fall accidents are common occurrences in the busy stores and parking lots of South Florida. 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:

  • Unexpected obstacles, such as debris or fallen merchandise

  • Wet, slippery surfaces, such as a spill

  • Negligently-maintained parking lots with potholes

  • Faulty construction equipment

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   

When is the property owner at fault?

Florida premises liability law provides that property owners owe a duty of care to their visitors to maintain their property in a reasonably safe condition.  This duty requires a property owner or manager to monitor his property regularly for unsafe conditions and address problems quickly once they arise.

For example, a supermarket owner’s duty of care may include posting a yellow cone to warn consumers about a freshly-mopped floor and to send employees to patrol the store regularly to spot hazards.

To whom does the property owner owe a duty of care?

The rights of the victim of a slip and fall against an owner of property depend on the status of the victim with regard to the property.   Florida law provides that a property owner owes a high duty of care to maintain his property in safe condition to business guests (invitees) and social guests (licensees).    A property owner , however, has a much lower duty of care to a trespasser.

For example, a property owner is not required to protect an undiscovered trespasser from a known danger. A property owner can , however, be held liable for intentionally injuring a trespasser.

Proving your Slip and Fall Case

Nearly all slip and fall cases are based on a negligence theory of liability. In order to prove negligence, you must prove all 4 of the following elements:

1.      Duty: The property owner had a duty to you to maintain his property in a safe condition.

2.      Breach: The owner breached his duty of care by causing or allowing a hazardous condition to occur.

3.      Causation: the hazardous condition caused your fall and the injuries that resulted.

4.      Damages: You suffered measurable damages ( medical bills, lost pay).

         The law states that an owner is negligent if he knew or should have known about a hazardous condition that caused a slip and fall.   The standard by which the owner’s behavior is judged is what a reasonable property owner would do in a similar situation.

 

Preserving Evidence   

Obtaining and preserving evidence is an especially difficult issue in slip and fall cases.    If you have slipped and fallen and suffered a serious injury, taking pictures of the hazard and gathering evidence are usually the last things on your mind.  Evidence of the hazard as well as proof that the hazard caused you to fall and suffer injuries, however, are necessary for your case.  Other evidence that may be needed to prove your slip and fall claim includes maintenance records, video surveillance footage, and past cases involving the same owner or property.

  If you find yourself in a slip and fall situation, you should first seek medical attention.   Your next step should be to talk to any witnesses that may have observed the accident and get their contact information.   Find out if they took photos or video of the incident.   You should also photograph the hazard that caused your accident, if it has not already been removed.  Also, let the property manager or owner know that you have been injured.

Finally, you should contact a personal injury lawyer while you are still on the scene of the accident.   An experienced personal injury lawyer can send out an investigator to the scene immediately who can interview witnesses and make sure that evidence is properly preserved.

Comparative Negligence

 

Florida law provides for the apportionment of damages between the defendant and plaintiff in a personal injury case based on the fault of each party.  This means that if you sue another driver for your injuries and the court finds that you played some role in causing the accident, the court is required to determine the percentage of fault of each party.   The court is also required to reduce the damages you recover from the defendant by the percentage of your fault.

 

 

If you are involved in a slip and fall, you should call an experienced slip and fall attorney immediately to be on your side. The property owner and his insurance company work hard to avoid liability for slip and falls. John Clarke is a Fort Lauderdale personal injury lawyer who handles slip and fall cases.  John Clarke is also a slip and fall attorney in Miami-Dade, Broward, and Palm Beach counties. Call (954) 556-8952 today!

Motor Cycle Accidents in Florida

Motor Cycle Accidents in Florida

Florida is famous as a destination for motorcycle enthusiasts. From the sands of Daytona Beach to the long stretches of interstate 75 that traverse the Big Cypress Swamp, the Sunshine State offers breathtaking riding experiences. 

While riding a motorcycle can be a thrill, a motorcycle rider is extremely vulnerable to injury when his vehicle is involved in a collision. In 2017, Florida had 504 motorcycle related fatalities, the second highest of any state.  According to the  National Highway Traffic Safety Administration (NHTSA),  per vehicle miles traveled, motorcyclists are  28 times more likely than people in passenger cars to die in a traffic crash.

A strange discrepancy in Florida law is the fact that Motorcyclists are not afforded general PIP Coverage and Benefits which insurers must provide automobile drivers.

Due to that fact, it is essential that you have adequate elected coverage to protect yourself in case of a motorcycle accident. Insurance companies offer different choices as to medical coverage for a motorcycle rider, and they are often very confusing. I offer a free consultation to review your policy and determine  your policy and coverages.

 

Florida Does Not Have a Mandatory Helmet Law

Studies on motorcycle accident fatalities done by the NHTSA show that helmets are 37% effective in preventing death.

In spite of the safety enhancement afforded by helmets,  the Florida legislature repealed the mandatory helmet law of 2000.

Florida Statutes section 316.211 provides that a motor cycle rider or driver may ride without a helmet provided he maintains an insurance policy that provides at least $10,000 of medical benefits for injuries sustained in a motor cycle accident.  

Suing for Accident-Related Injuries

A plaintiff injured in a motor cycle accident has the burden to show by the greater weight of the evidence that the defendant was at fault in order to recover for his injuries. 

Most motor vehicle accident cases are grounded in the negligence theory of liability.   In order to prove his case, the negligence plaintiff must prove 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.  

 Comparative Negligence

 Florida law provides for the apportionment of damages between the defendant and plaintiff in a personal injury case based on the fault of each party.  This means that if you sue another driver for your injuries and the court finds that you played some role in causing the accident, the court is required to determine the percentage of fault of each party.   The court is also required to reduce the damages you recover from the defendant by the percentage of your fault.

 

 

If you are involved in a motorcycle accident in Florida, your rights as an injured party are immediately at stake. Do not speak with any insurance company until you have had an opportunity to speak with an attorney. Remember, our law firm offers extensive legal advice concerning your accident and your options.

Florida Car Accident Law

Florida Car Accident Law

Motor vehicle accidents are one of the most common causes of serious injuries as well as fatalities in Florida. According to The Florida Department of Motor Vehicles, there were 402, 385 crashes on the state’s roads in 2017. These crashes caused 254,310 injuries and 3,116 fatalities. As Florida’s population continues to grow, the number of crashes each year has risen. Motor vehicle accident deaths exceed firearm fatalities in the sunshine state.

Recovering for Your Injuries

For those injured in a Florida automobile accident there are several ways of recovering damages. 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 caused by other drivers. 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. Many cautious consumers have also purchased uninsured motorist coverage from their own insurer, which pays for their property damage when the at-fault motorist lacks insurance.

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 his 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.

Limitation on Damages for Motor Vehicle Accidents

The seriously injured party’s biggest potential source of recovery, however, is to sue the at-fault party for negligence. In Florida, however, an injured motorists right to sue are quite limited. In exchange for the personal injury protection policy guarantee of payment for medical claims, Florida law allows injured drivers and passengers to sue for only the most serious personal 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).

Proving Your Case

A plaintiff injured in a car accident has the burden to show by the greater weight of the evidence that the defendant was negligent in order to recover for his injuries.

Most motor vehicle accident cases are grounded in the negligence theory of liability. In order to prove his case, the 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).

Comparative Negligence

Florida law provides for the apportionment of damages between the defendant and plaintiff in a personal injury case based on the fault of each party. This means that if you sue another driver for your injuries and the court finds that you played some role in causing those injuries, the court will reduce the damages you recover from the defendant by the percentage of fault that is attributed to you.

As you can see, getting compensation for Florida motor vehicle accident injuries can be challenging. For this reason it is important that you consult with an experienced personal injury attorney if you have been injured in a car accident.

Contact John Clarke today at (954) 556-8952 if you have been injured in an accident for a free consultation!

                  When is a Private Conversation No Longer Private?

When is a Private Conversation No Longer Private?

 

            Have you ever sat down and heard a voice coming from your pocket and then realized that you butt-dialed someone at an inappropriate hour and freeze in embarrassment?  Have you ever had a conversation in a crowded place in which you have revealed compromising information   and wondered whether it was recorded by one of the many cell phones in use around you?  Following are a few recent cases concerning these issues.

 

Are “Butt-Dialed” Calls Private?

 

       A federal appeals court has recently weighed in on the issue and several cases are pending in state courts.  So far, the outlook is not good for butt dialers hoping for some privacy.  According to the U.S. Court of Appeals for the Sixth Circuit holding in Huff v. Spaw (2015),  a butt dialer has no reasonable expectation of privacy in the matters disclosed as a result of the butt dial pursuant to Title III of the U.S. code (“The Wiretap Act”). 

 

            Huff arose when James Huff, the Chairman of the board that oversees the Cincinnati/Northern Kentucky International Airport, inadvertently dialed the office phone of Carol Spaw, the Senior Executive Assistant to the airport’s CEO, Candace McGraw from the pocket of his pants. During the call, Huff spoke to Vice Chairman of the Board Larry Savage about sensitive business matters on a hotel balcony.    Each party then returned to his respective hotel room, and Huff recounted the conversation with Savage to his wife Bertha as the call to Spaw continued.  Spaw answered the call, determined that the call was unintended but  that the communications between the caller and the other parties in the room with him at the time concerned her boss.  She listened to the 90 minute call, and took meticulous notes, and recorded the last few minutes of the conversation with her phone.   Spaw typed a  summary of the conversation and then shared it along with the recording with other members of the Airport board.

 

James and Bertha Huff then filed suit against Spaw for intentionally listening to their telephone conversation and sharing its contents.

The Huffs’ argued that Spaw violated Title III , which prohibits interception of telephonic communication in which the speaker has a reasonable expectation of privacy.   Judge Danny Boggs,  who wrote the court’s opinion, stated that James Huff did not have a reasonable expectation of privacy since he had placed the call.  The court was not swayed by Huff’s argument that the call was accidental, therefore protected.  The court’s opinion noted that there are many ways to avoid accidental butt-dials (such as by locking the keys to the phone) and that the Plaintiff failed to take advantage of these measures and was therefore “no  different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.”

The Court did, however, extend protection to Bertha, stating that a speaker’s expectation of privacy is not compromised by the fact that she knows the party with whom she is communicating has a cell phone that could potentially make a butt-call.  To hold otherwise would virtually destroy the privacy protections of The Wiretap Act, since nearly every party in a conversation is potential cell phone carrier, held the Court.

 

The case was sent back to the lower court to decide whether Spaw “intercepted” Bertha Huff’s oral communication.

State Cases on Cell Phone Privacy

           

In Stevens v. Coan (2018), a former public employee in Georgia is suing his boss for invasion of privacy under the state’s wiretap statute after Stevens butt-dialed Coan, his boss, one evening and Coan heard Stevens’ wife make disparaging comments about him.  As a result of what he learned, Coan forced Stevens to resign the following day.  The case is currently pending a preliminary hearing.

 

Florida, like most states, has a statute modeled upon The Wiretap Act (F.S.Section 934.03).  This law makes it a 3rd degree felony to intercept oral and wireless communication in which the speaker has a reasonable expectation of privacy.   Florida’s wiretapping law also allows the speaker a private right of action against the party that unlawfully records the conversation.

 

 In McDonough v. Fernandez-Rundle (2017), the Plaintiff filed suit against the Miami-Dade County State Attorney under 42 U.S.C. 1983, alleging unlawful deprivation of civil rights, after she informed plaintiff that his recording of a meeting between him and the Chief of Police violated Florida’s wiretap act and that the violation was a felony. The trial court sided with Fernandez-Rundle.  The Eleventh Circuit reversed the trial court's decision and held that plaintiff did not violate section 934.03 and, consequently, the government's threatened prosecution had no legal justification. Also,  the Court held that the meeting fell within section 934.02’s "uttered at a public meeting" exception, therefore the circumstances did not warrant an expectation of privacy.

 

Related Cell Phone Privacy Issues

 

Law Enforcement Cell Phone Searches: 2 cases that the Supreme Court recently decided dealt with warrantless police searches of cell phones.  In Carpenter v. U.S. (2018),   The Court held that police must obtain a search warrant before searching a suspect’s cell phone for evidence pursuant to the 4th Amendment, which prohibits unreasonable searches and seizures.

 

Stingrays: Many law enforcement departments are now routinely using cell phone simulators, colloquially known as “stingrays,” that mimic cell phone towers and force phones in the area to broadcast information that can be used to identify and locate them.  Since police departments don’t generally reveal when they are using these devices, it is hard to know the extent of their current use. 

 

  The American Civil Liberties Union is currently suing the Sarasota, Florida police department for the production of records concerning its use of stingrays.   Should the ACLU’s discovery request ultimately lead to disclosure of extensive use of stingrays, further litigation concerning the violation of privacy rights of surveilled parties will likely follow.  

 

Contact Attorney John Clarke today at (305) 467-5560 if you have been injured or have any other legal concern.

 

 

 

 

 

Customers Sue McDonald's for Cheesy Charge

Several burger lovers in Florida are suing McDonald’s for forcing them to pay for something they don’t want – cheese. They and their attorneys are  seeking other disappointed customers to join a class action suit that asserts $5 million in damages.

Cheesy Charge

Cynthia Kissner and Leonard Werner state in their lawsuit that they did not want cheese on their Quarter Pounders, but had to pay one dollar for it anyway. Before the mobile app was developed, you could order a Quarter Pounder or pay one dollar extra for a  Quarter Pounder with cheese. McDonald’s, however, now only gives a customer a cheese-free discount if he or she uses the mobile app. A Quarter Pounder with cheese currently costs $4.29, while the plain one costs $3.29.  If you order the burger in store, you pay the fee for cheese regardless of whether you ask that the cheese be held. 

Legal Basis

The lawsuit claims that McDonald's “cheesy” pricing scheme amounts to unfair and deceptive trade practices under Florida Statute Section 501.201.  It also argues that the trademark for the Quarter Pounder requires that cheese be charged for as an add-on topping.

McDonald’s Position

McDonald's stated that the advertised Quarter Pounder now includes cheese, even though cheese was not listed in the original trademark. Also, it cited its franchise agreements  that allow restaurant owners to  vary the menu pricing according to local market conditions.

The Bottom Line

If the court certifies the class action, notice will be sent out to potential class members. If the law suit is ultimately successful, the plaintiffs attorneys can expect a windfall while the individual class members may recover enough to buy a free few burgers each – and the satisfaction of getting McDonald’s to drop its cheesy charges.

Using a Florida Land Trust to Hold Property

Using a Florida Land Trust to Hold Property

 

                The Florida land trust is a vehicle that allows a grantor to get benefits of ownership of real property while keeping his identity secret.  It was created by the Florida Legislature by passage of the Land Trust Act of 2006 (F.S. 689.071). The benefits of holding property in a land trust include:

- Privacy for the beneficiaries of the trust

- Limiting liability for managing property

- When combined with other tools, a land trust can help protect property from the beneficiaries’  creditors

- Beneficiaries who reside in the property held by the land trust get to keep their Florida homestead exemption

 

How a Land Trust Works

 

                The creation of a land trust involves 2 documents: a deed and a trust agreement.  The grantor deeds his real property to the trustee of the land trust and records the deed in the public record.  The deed gives the trustee both legal and equitable ownership of the property, so that the trustee may sell, mortgage or lease the property. 

                  The grantor and the trustee also execute a trust agreement, which states that the trustee is managing the property on behalf of one or more designated beneficiaries (often the grantor is the beneficiary), and lists specific trustee duties (such as leasing the property and giving the income to the beneficiary). If the trustee fails to perform his duties, he is liable to the beneficiary for breach of trust.  Importantly, the trust agreement is not recorded, so the public doesn’t know the identity of the beneficiary.

 

Privacy, Asset Protection, or Both

                Does a land trust offer the beneficiary any protection from his creditors? Under Florida law, a creditor seeking to collect a debt can compel the debtor to disclose under oath all assets in which he has a beneficial interest, including property controlled through a land trust.  Once a creditor learns of a debtor’s land trust interest, it can attach a judgment to it.  Thus, a land trust will not protect a beneficiary’s property from determined collection efforts.  

A grantor can combine asset protection and privacy in a land trust, however, by designating a beneficiary that is not liable for the grantor’s debts.   For example, a businessman creates a land trust to hold an investment property and designates the beneficiary of the trust as “123 Any Street, LLC.”  The businessman’s creditors do not know that he controls the investment property. Even if they find out this information through collection efforts, the limited liability corporation will not be liable for the businessman’s debts.

Low-Cost Strategies to Avoid Probate

Low-Cost Strategies to Avoid Probate

As you probably know, the court supervises the distribution of the assets that are titled in your name after you die.   This process, known as probate, is both time-consuming and expensive.  

 

Assets that are included in the probate estate:

-All the decedent’s personal and real property which he individually owns at the time of death,

- for which there is no provision for succession of ownership at death.

 

Here are some low-cost strategies that avoid probate and save your heirs time and money:

 

"Ladybird" Deed

                The ladybird deed is a type of deed in which the grantor designates a beneficiary to take ownership of his property at the time of his death.  Since the ownership succession takes place automatically, the property never goes through probate.  Another advantage of the ladybird deed is its flexibility – the grantor can change his mind at any time and sell or convey the property to another party without the beneficiary’s consent. 

 

Life Insurance

           After the insured dies, the proceeds of a life insurance policy flow directly to the named beneficiary, thus avoiding the probate process (as long as the beneficiary is not the decedent’s estate). 

 

Pay on Death Bank or Investment Account (aka “Totten Trust”)

                The owner of the account can avoid it passing into his probate estate by providing advance written instructions to the financial institution to transfer ownership of the account to his beneficiary upon his death.  The pay on death bank account was traditionally known as a  Totten trust, as the bank acts as a trustee, taking on the duty to convey the owner’s wealth to his beneficiary at his death.

 

Property Held as Joint Tenants with Right of Survivorship

 

                The owner of an asset can avoid the asset falling into the probate estate by making the beneficiary a joint owner of the asset while he is alive.   In order to accomplish this purpose, the conveying  deed would have to state that each owner takes title as a joint tenant with the right of survivorship.  When the grantor dies, the joint tenant will automatically take a 100% ownership interest in the property.  It is important to note that when a married couple in Florida takes title to real property, the law presumes that they are “tenants by the entireties”, which gives each spouse survivorship rights upon the death of the other spouse.

 

                As you can see, there are many ways to title assets so that they are not subject to the probate process when the owner dies.   Keep in mind that there are other considerations involved in estate planning, such as asset protection and tax planning.   If you would like assistance in planning your estate, contact Clarke Law today.  I offer a free twenty- minute consultation to assist you in planning for the future.              

Bad Faith Insurance Claims in Florida

Bad Faith Insurance Claims in Florida

Has your insurance company denied your claim for damage to covered property?  Or is it pressuring you to settle for less than you deserve? There are several legal remedies available to you.  Here is a quick and dirty guide to bad faith insurance claims in the sunshine state.

 

Duties of Insurers

            Insurers have specific duties in their dealings with insured parties.  Some of these duties derive from statutes and apply to all insurers regardless of whether they are made explicit in an insurance policy, while others are policy-specific.  Statutory duties include:

1.        Duty to Advise:  An insurer has an affirmative duty to advise the insured of the opportunity to settle a claim, including potential settlements within and in excess of the insured’s policy limits.  The insurer is also obligated to advise the insured on the probable outcome of litigation concerning a claim and the possibility of an excess judgment against the insured.

 

2.       Duty to Investigate:  An insurer has a duty to investigate all claims.  If the insurer learns of damage to property that it insures, the insurer has a duty to investigate to determine its liability.

 

3.     Duty to Settle

 

·         An insurer has a duty to determine when settlement is reasonable.  An insurer has a duty to attempt to settle a case if a reasonably prudent person, faced with the prospect of paying the total recover, would do so.  Berges v. Infinity Ins. Co., 896 So. 2d 665 (Fla. 2004).

·         An insurer is required to initiate settlement negotiations when liability is clear and injuries or damage are so extensive that a judgment in excess of the policy limits is likely.

·         An insurer may take into account its own interest in determining whether or not to settle.  The insurer must, however, prioritize the insured’s interests as much as its own.  Springer v. Citizens Cas. Co. Of N.Y., 246 F.2d 123 (5th Cir. 1957).

 

4.       Implied Covenant to Perform Contract in Good Faith:  The American judiciary in the early 20th century began to recognize that there is an implied covenant in every contract that parties will perform its terms in good faith.  However, interpretations of this covenant vary from state to state.  Florida courts have taken the position that the implied covenant of good faith is not an independent term of a contract, but rather a prohibition on a party that performs in bad faith from benefiting from his conduct.  Hospital Corp. Of America v. Florida Med. Ctr., Inc., 710 So. 2d 573, 575 (Fla. 4th DCA 1988).

            So a breach of the implied covenant of good faith doesn’t appear as a distinct cause of action in Florida claims against insurance companies, but can be used as an affirmative defense (if your insurance company sues you for breach of contract after it acted in bad faith, you can raise this defense in your response).

 

What is Bad Faith?

        Bad faith refers to conduct by an insurance company that is calculated to delay or deny payment of legitimate claims to an insured.  It is usually characterized as worse than negligence but less than intentional wrongdoing.  Bad faith causes of action against insurance companies have a long history, but the precise meaning of the term varies from state to state.  Many states, including Florida, have enacted statutes that define specific practices that constitute “bad faith” and remedies available to the victims of these practices.

            When a party breaches a contract (including an insurance contract), the injured party may always sue for damages.  Damages for breach of contract are limited, however, to compensatory damages, while attorney’s fees and court costs are generally not recoverable.  Florida’s bad faith insurance statute permits an insured to recover compensatory damages as well as court costs and attorney’s fees for violations.  If he can prove that a violation was a part of a general business practice of the insurer and was willful or malicious, the insured may also recover punitive damages. 

 

Statutory Bad Faith Violations

      F.S. 624.155 sets forth forbidden practices for which an insured may sue:

 

1. Not attempting in good faith to settle claims when it could and should have done so, had it acted fairly and honestly toward its insured ;

 

2. Making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which payments are being made; or

 

3. Except as to liability coverages, failing to promptly settle claims, when the obligation to settle a claim has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage.

 

4. Violations of the Florida Unfair Insurance Trade Practices Act (F.S. 626.9541), which include:

A. Making a material misrepresentation to an insured to make a less favorable settlement than he is entitled to.

B. Committing or performing with such frequency as to indicate a general business practiceany of the following:

         C.  Failing to adopt and implement standards for the proper investigation of claims;

D.  Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue;

E.  Failing to acknowledge and act promptly upon communications concerning claims;

F.  Denying claims without conducting reasonable investigations based upon available information;

G.   Failing to pay undisputed amounts of partial or full benefits owed under first-party property insurance policies within 90 days after an insurer receives notice of a residential property insurance claim, determines the amounts of partial or full benefits, and agrees to coverage.

Statutory Safe Harbor

            As a condition precedent to filing a claim for statutory bad faith, the insured must give the Florida Department of Insurance, as well as the insurer, sixty days written notice of the alleged violation.  The insurer then has the opportunity to cure the alleged violation.  If the insurer pays the alleged damages, during the “safe harbor” period, it is absolved of liability to the insured for the violation.  Talat Enterprises, Inc. v. Aetna Cas. And Surety Co., 753 So. 2d 1278 (Fla. 2000).

Summary

            As you can see, Florida law imposes quite a few duties on insurers.  In spite of these laws, some insurers routinely break the law in the name of profit.  If your insurance company has denied or delayed settling your claim or you have any legal question concerning your insurance policy, you should seek the assistance of an experienced attorney, such as John Clarke.  Call (305) 467-5560 today for a free 20 -minute consultation with no obligation to you!

Deficiency Judgments

Deficiency Judgments

 

          Florida law provides a mortgage lender several avenues to recover against a defaulting borrower.  The lender’s first and most important avenue of recovery is to foreclose on the property pledged by the borrower as collateral for the loan (typically, the borrower’s house).  A successful foreclosure suit culminates in a court-supervised sale of the pledged property at an auction on the courthouse steps.   Once the foreclosure sale occurs, the lender may also file a claim for a deficiency judgment if the borrower owes the lender more than the greater of the sale price of property or the property’s “fair market value.”

 

History

          Historically, banks have profited handsomely from enforcement of deficiency judgements on foreclosed properties.   During the Great Depression, for example, most states’ laws did not have a “fair market value” requirement and permitted a mortgage lender to obtain a deficiency judgment against a borrower for any difference between the foreclosed property’s sale price and the amount owed by the borrower.  Lenders took advantage of the situation by buying properties for nominal prices at the foreclosure auction (due to the economic situation, there were few other bidders), and then suing and obtaining personal judgments against the dispossessed borrowers for the significant deficiency that resulted.

          During the real estate boom prior to 2007, deficiency judgments were not common in Florida because rising real estate values brought home values above the note balance of defaulting mortgages.  Deficiency liability is a potential problem, however, in a declining market.  After the 2008 real estate crash, lenders suffered huge losses.  Subsequently, the rate of filing deficiency judgment appears to have increased dramatically nationwide. 

          While there is no organization that keeps track of this figure nationwide, some lender-specific figures suggest a substantial  increase.  Fannie Mae, the government- created mortgage insurer, for example, was involved in 595,128 foreclosures between January 2010 and June 2012, and referred 293,134 to debt collectors for potential pursuit of deficiency judgments (according to a 2013 report by the Inspector General for the Federal Housing Finance Agency).  The biggest private mortgage lenders, including Bank of America, Wells Fargo, and Citigroup, by contrast, claim that they only pursue deficiency judgments in a minority of cases.  Factors that may predispose a lender to pursue a deficiency judgment include borrower ability to repay, mortgage insurer requirements, and the type of hardship that caused the foreclosure.  Also, some states have imposed significant restrictions on foreclosure-related deficiency judgment actions.

 

 

Florida Deficiency Judgment Process

 

Foreclosures in Florida are judicial, which means the lender must use the state court system to foreclose.

I. Lender Has a Choice of Forum.  In Florida, the lender may obtain a deficiency judgment as part of the foreclosure suit if the borrower was personally served with the foreclosure complaint.  Alternately, the lender may file a deficiency action against the borrower in a general civil court pursuant to Florida Statute 702.06 unless the foreclosure court has already granted or denied its deficiency claim. 

II. Adjudication of the Claim:  The court determines the amount of the deficiency judgment. The foreclosure court has considerable flexibility to decide the judgment amount and may take into account principles of equity (such as fairness and comparative negligence) in addition to substantive law.  A general civil court, however, only considers the statutory law in determining the deficiency judgment amount (for this reason, lenders often seek deficiency judgments in this forum).   No matter which forum adjudicates the claim, the amount of the award cannot exceed the difference between the judgment amount and the fair market value on the date of sale, if the property is:

  • owner-occupied, and
  • residential.

III. Time to Seek a Deficiency Judgment:  As of July 1, 2013, the period of time during which the lender may seek a deficiency judgment is one year from the date of the foreclosure sale for residential properties with no more than four dwelling units.

 

Who Can Get a Deficiency Judgment

Generally, a senior lienholder who forecloses on a borrower will also sue any junior lienholders, which will cause those parties to lose their security interest in the property when it is sold to satisfy the senior lien.  If the fair market value of the property on the date of sale isn’t high enough to satisfy the junior liens on the property, the junior lienholders can then sue the borrower for the deficiency.  Thus, a borrower may be held liable fordeficiencies for junior liens in addition to any senior lien deficiency.

 

Defenses to Deficiency Judgment Claims

I. Fair market value – the lender has the burden of proving the fair market value of the foreclosed property.  A lender is required to provide testimony from an expert to support the alleged value of the property on the date of sale.   Borrowers have successfully attacked the lender’s alleged fair market value when the value determination was not based on the verifiable work of an appraiser, and also when the determination did not occur on or very close to the date of sale.

II. Jurisdiction – As stated above, the lender can choose to pursue a deficiency judgment claim in two different courts.  However, there is currently ambiguity in the case law as to what actions constitute a choice of forum. 

For example, in many cases the lender asks the foreclosure court for jurisdiction to grant a deficiency judgment in the foreclosure action and the foreclosure court reserves jurisdiction to do so, but the lender then pursues a separate deficiency judgment action at common law.  Some borrowers have contested the jurisdiction of the common law court under these circumstances, arguing that the lender had a “binary” choice of forums, had already chosen the foreclosure court to adjudicate the claim, and should not be allowed to pursue the claim at common law.  In this situation, some courts have dismissed the deficiency judgment actions for lack of jurisdiction, while others have held that the lender’s choice of forum is valid.

Needless to say, this is a complicated and evolving area of the law.  If you are facing a deficiency judgment, it is important that you speak to an experienced real estate attorney concerning all your potential defenses.

 

Deficiency After Short Sale

A short sale is a common foreclosure alternative.  The borrower sells the mortgaged property for less than the amount due under the note, and the lender, in exchange, agrees to release the lien on the property.  While a borrower who short sells his property avoids the negative mark of a foreclosure on his credit report, he still has potential liability to pay the resulting deficiency. 

In order for the borrower to completely avoid this scenario, the lender must waive its right to a deficiency in the short sale agreement.

 

Contact John Clarke at Clarke Law Today

If you are facing a deficiency judgment, mortgage foreclosure, or any other legal issue with a creditor, contact John Clarke today for a free consultation!

 

Clarke Law PA
Committed to Excellence

 1975 East Sunrise BL., Suite 524,  Fort Lauderdale, FL 33304
(305) 467-5560
Clarkelawpa.com

John@clarkelawpa.com

 

 

Medical Malpractice in Florida: A Brief Guide for Patients

Medical Malpractice in Florida: A Brief Guide for Patients

While the modern American medical system delivers miracles on a daily basis, it also is responsible for millions of mistakes each year.  These mistakes have real consequences – according to Johns Hopkins patient safety experts, 250,000 deaths each year can be attributed to medical error in the U.S.  The risk of serious injury and death is particularly grave for inpatient hospital admissions.  The causes of medical errors are many and include negligence by medical providers, poor communication between medical staff, and medication errors.

               The legal system is the primary mechanism by which patients receive compensation for injuries and death caused by medical malpractice.  Under Florida’s medical malpractice laws, a patient can recover from a provider who is found to have committed medical malpractice both economic damages, and non-economic damages.  In certain situations, he may also recover punitive damages.  Economic damages include the present and estimated future costs of medical treatments of the injury caused by the medical malpractice, as well as lost income and estimated loss of future income.  Non-economic damages include compensation for pain and suffering, loss of enjoyment of life, and worsening of prior injuries.  Punitive damages may be recovered for injuries caused by gross negligence or intentional misconduct.

               In order for you to make a successful medical malpractice claim, you must show that a medical provider or providers failed to diagnose or treat you according to the applicable standard of care.  Florida law defines the standard of care to be the level of care that would be exercised by a reasonably prudent medical provider in the accused provider’s specialty or medical community.  There are inherent risks to all medical procedures.  For this reason, not every injury that results from a medical procedure qualifies as medical malpractice.  If you feel that you may have suffered an injury due to medical malpractice, contact us for a free consultation to assess your options.

Most Common Medical Malpractice Claims:

1.  Surgical Errors – surgeries are complex procedures in which decisions must often be made at the spur of the moment.  It is therefore no surprise that errors frequently occur in this situation that causeharm to the patient.  Common surgical errors include damage to tissues and organs adjacent to the surgical site, incision and/or surgery on the wrong site, and failure to remove surgical equipment from the site of surgery once the operation has ended.

2. Anesthesia Errors – anesthesia errors can cause serious harm and death.  This type of error is therefore often the basis for medical malpractice suits.   Specific mistakes in the provision of anesthesia care include: failure to thoroughly investigate the patient’s medical history for potential anesthesia complications, failure to monitor the patient’s vital signs while under anesthesia, and improper intubation techniques.

3.  Failure to Diagnose or Misdiagnosis – A medical professional has the obligation to do a physical assessment, take your medical history, and make a reasonable diagnosis based on these factors.  It is not uncommon for a doctor to fail to diagnose a disease based on symptoms that usually indicate a benign situation.  For example, a mass is more often benign than cancerous, so a doctor may fail to diagnose cancer or order additional tests on this basis alone.  Whether a failure to diagnose is medical malpractice depends on whether the jury finds, after hearing testimony from expert witnesses, that the doctor breached the applicable standard of care.  The diseases that are most often implicated in claims for failure to diagnose are heart disease and cancer.

4.  Medication errors -  Prescription medication errors are a huge problem both in the inpatient and outpatient settings.  According to the Food and Drug administration, errors in the prescription and administration of prescription drugs injure approximately 1.3 million people annually in the United States alone. 

               A doctor may be liable for prescribing the wrong drug, the wrong dose, or failing to check other drugs that a patient takes for possible interactions.  A pharmacist may also be held liable for failing to check potential interactions among all of a patient’s medications prior to dispensing a prescription medication.  Doctors and nurses make medication errors when they administer a medication that wasn’t ordered, give an incorrect dose, or use an improper method of administration.  Classes of drugs that are most often involved in litigation over medication errors tend to be those that have potentially serious adverse effects such as blood thinners, antibiotics, and corticosteroids.

 

Contact a Dedicated Medical Malpractice Attorney

Medical malpractice injuries can cause long-term hardship and emotional devastation to the victim and their loved ones.  If you have suffered harm because of the negligence or misconduct of a medical professional, contact Clarke Law P.A. today.   I am smart, experienced and dedicated to protecting your rights!

              

Foreclosure in Florida: What You Need To Know!

Foreclosure in Florida: What You Need To Know!

Overview of The Foreclosure Process in Florida

 

               If your lender has filed a foreclosure action against you or you are in default on your home mortgage loan, you probably have many concerns and questions about how the foreclosure process works. Sections 702.01 through 702.11 and 45.031 and 45.0315 of Florida’s Statutes  set forth the fundamental principles of  Florida’s foreclosure law.   Here is a brief overview:

      Judicial Foreclosure

Florida law requires all foreclosure actions to go through the courts.  This way, the borrower has an opportunity to contest the foreclosure action before a neutral magistrate. Also, the sale is supervised by the court, so the lender will not unjustly profit from it.

Because there are multiple steps in the judicial foreclosure process, the duration of an uncontested foreclosure action in Florida is approximately 6 months.  If the borrower has a skillful attorney to contest the foreclosure, however, the process can be slowed down significantly. 

 

Foreclosure of Mortgages in Equity

In Florida, all mortgages are foreclosed in equity.  This means that the court considers the case according to principles of equity, such as fairness and justice, as well as legal rules. For example, the judge has broad discretion to halt or slow down the proceedings upon request by a borrower who produces evidence he is trying to work things out with the lender.  If the court grants a trial on the foreclosure claim, it will be tried by a judge (not a jury).

 

Legal Basis

A valid foreclosure action is based on 2 documents: a promissory note and a mortgage. In the promissory note, the borrower agrees to pay the lender back the principal borrowed plus interest.  In the mortgage, the borrower pledges the property he is financing as collateral for the loan. Thus, the note creates the obligation upon which the foreclosure action is based, while the mortgage gives the lender the right to take the borrower’s property in case of default. It is possible for a lender to foreclose on a property (when not protected by a homestead exemption) when the borrower has executed a promissory note but no mortgage!

 

Timeline for Litigation of a Foreclosure Suit

Once a borrower defaults, the lender will typically send him a notice of default, in which it demands the entire principal balance of the loan.  A lender is not allowed to accelerate the loan (declare the entire amount due) until payment is at least 30 days past due.

 

A.   Filing of the Complaint

      In the complaint the lender makes a request that the court grant it a foreclosure and states the facts and law that support its request.   The lender gives notice to the borrower of the lawsuit by serving him with a summons and the complaint. At this time, The lender also usually files a lis pendens, a document that states that it is in the process of suing the borrower. The lender then records the lis pendens at the county recorder’s office,  putting the borrower’s other creditors on notice that it is seeking to foreclose the property. 

 

B.    The Answer

Borrower is required to file a response within 20 days of being served with the complaint in which he denies or affirms the lender’s allegations and asserts any affirmative defenses he may have.  It is extremely important for the borrower or his attorney to file a timely answer to the initial complaint.   If the borrower fails to answer the complaint, the borrower waives most defenses to the foreclosure suit, and the foreclosing lender may obtain a default judgment against him.

 

 In his answer, the borrower denies or affirms each allegation in the complaint and raises any affirmative defenses he may have. Once the borrower has filed his answer, the Court sets a date for a hearing. At this hearing, the borrower and his attorney have a chance to state to the court the reasons the foreclosure should not proceed.

 

 

C.   The Preliminary Hearing

At the preliminary hearing, the borrower states his defenses and identifies defects in the lender’s case. The judge then decides what happens next. If the borrower’s arguments have legal merit, the judge may grant him time to work things out with the lender by issuing a stay, or even dismiss the case altogether. If his answer is not sufficient, the judge will allow the foreclosure to proceed.

 

D.   Summary Judgment Hearing

If the judge doesn’t stay the foreclosure proceedings at the preliminary hearing, the lender may proceed to  seek a summary judgment of foreclosure.  By filing a motion for summary judgment, the lender asserts that there are no remaining material factual issues in the case and asks the court to grant it a judgment without holding a trial.  Instead, the court would hold a brief hearing to consider whether granting summary judgment is appropriate.

 

After hearing testimony from both sides at the hearing, the judge makes a ruling.  If the lender’s attorney convinces him that his case is solid, the judge issues a final summary judgment of foreclosure.  The judgment states the total amount of money that the borrower owes  including the loan amount, interest, expenses, and attorney fees.

 

In uncontested foreclosure cases, courts routinely grant summary judgment since the lender has already produced  evidence to support its foreclosure case with its complaint (such as copies of the note and the mortgage).  This evidence, however, is often legally inadequate.  It is up to the borrower and his attorney to identify the problems with the lender’s documentation and raise these issues at the hearing (the court will not examine these issues on its own).  If there are serious evidentiary  problems such as a lost note, the court may dismiss the case or schedule a trial to determine whether the foreclosure should go forward.

 

E.   Foreclosure Sale

 

After the final judgment is entered, the Court schedules a foreclosure sale 30 to 60 days later.  The sale, typically an auction, is directly supervised by the court.  To ensure that the sale is fair, the lender is required to advertise the sale to the public by publishing legal notices in advance in local newspapers.

 

In Florida, the borrower threatened with foreclosure  has an “equitable right of redemption.”  This means that the borrower can redeem the property (avoid the sale) by paying the lender the judgment amount plus post-judgment interest prior to the confirmation of the property sale.  The sale is confirmed by the clerk issuing a certificate of title to the buyer 10 days after the sale.  The judge may also allow junior lien-holders to redeem the property by satisfying the final judgment.  

 

Deficiency Judgment

Florida allows the lender to obtain a deficiency judgment against a borrower after the foreclosure.  A deficiency occurs when the final judgment amount exceeds the “fair market value” of the property (as measured by sales of comparable properties contemporaneous with the foreclosure sale).

 

Federal Law on Foreclosure

There are several federal laws and regulations such as RESPA, the Real Estate Settlement Procedures Act,   that provide important protections for homeowners facing foreclosure.  RESPA’s provisions apply in all states and to all institutional lenders.  

RESPA requires all loan servicers to inform borrowers that loss mitigation options are available that may avoid  foreclosure. These options includereinstatement, loan modification, and short sale.  RESPA also prohibits the loan servicer from initiating a foreclosure action during the first several months after a borrower’s default.  Furthermore, if the borrower submits a timely and complete application for loss mitigation, the prohibition is extended until such time as the lender evaluates the application and notifies the borrower of its decision.

 

How a Real Estate Attorney Can Help You

 

Why do you need a Florida real estate attorney to assist you in fighting your foreclosure?

Based on what you have read above, you probably have gathered that the foreclosure process is complicated.  A competent attorney can assist you by asserting your strongest defenses against the foreclosure suit.  Contesting a foreclosure can dramatically slow down the clock.  This can be crucial if the you are applying for a loan modification, seeking a short sale, or other foreclosure alternative, or just need time to plan for the future.  Also, if the lender files a foreclosure based on lost documentation, a competent attorney may be able to get the court to dismiss the case outright.

 

If you are facing foreclosure, contact me for a free, no-obligation 20 minute consultation.  I will review your case and explain all your options!

 

John Clarke

Clarke Law PA

Committed to Excellence

1975 East Sunrise BL., Suite 524, Fort Lauderdale, FL 33304
PH: (305) 467-5560         
Clarkelawpa.com  John@clarkelawpa.com

 

 

 

 

 

 

 

 

 

 

 

 

              

Increase in Deaths on Florida's Roads

Increase in Deaths on Florida's Roads

2016 witnessed a sharp increase in the number of traffic-related deaths in Florida.  The number of deaths was higher than in any prior year, except for 2007.  This figure gives us cause to reflect on the reasons driving the trend, and what we can do to reverse it.

To put it in perspective, 3,057 people died in car accidents in the sunshine state in 2016, while the number who died in 2015 on our roads was 2,940. The 2016 total exceeds the number of victims of homicide for the same time period. 

Furthermore, according to the National Safety Council, it is consistent with a sharp increase in traffic fatalities nationwide that began in 2014.  The primary reason that has been advanced to explain the trend is "distracted driving." Many accidents in 2016 were attributed to one or both drivers involved taking their eyes off the road to send a text or place a call.  In Florida, an additional factor that likely contributed to the spike was an increased number of cars on the roads, driven by the state's relentless growth.

Law enforcement officials recently announced a statewide initiate called "Arrive Alive," aimed at decreasing fatal crashes by examiningstretches of roadway where fatalities are most common and taking steps to mitigate the dangers. Individual drivers can reduce their risk by reducing distractions, driving defensively, and by consulting a map or GPS to learn the route prior to traveling to unfamiliar places.

If you have been injured in an accident or have had an insurance claim denied, contact John at Clarke Law at 3054675560.

Sources:

1.  http://www.sun-sentinel.com/local/broward/fl-arrive-alive-initiative-20170124-story.html

2. www.nsc.org

 

Big Changes May Be In Store For Florida's Insurance Industry

Big Changes May Be In Store For Florida's Insurance Industry

.         Repeal of Mandatory PIP (personal injury protection insurance):  Several Florida legislators, including Senator Jeff Brandeis (Republican, St. Petersburg) are pushing for a repeal of mandatory PIP.  Their support for changing the system is motivated by a rising tide of fraudulent personal injury protection insurance claims around the state.  The proponents of the repeal advocate replacing it with a system in which injured drivers would look only to the at-fault driver’s bodily injury insurance policy (and his personal assets, if necessary) for reimbursement of their injury-related costs.  They believe that a consumer would save on auto insurance premiums if he were not required to buy PIP, but property damage and bodily injury liability coverages (that would cover other drivers and their passengers) instead.

I am not sure this repeal is the panacea that its advocates claim.   It is probable that the cost of bodily injury liability insurance will climb if the repeal is enacted.  Furthermore, I doubt that the repeal will reduce auto insurance fraud, since criminals could shift tactics, and purchase and claim against each other’s bodily injury liability policies.  The repeal would likely help the bottom-line of attorneys who specialize in personal injury cases, as more people would use the court system to compel payment for treating their injuries rather than going to their own insurance companies.

 

II.        Allow patients to sue HMOs for declining coverage of treatments recommended by their doctors in bad faith:  SB 262, sponsored by Greg Steube (Republican, Sarasota) would allow patients to sue health insurance corporations for denials of coverage that affects treatment.  Current law exempts HMOs from liability for medical providers’ treatment decisions.

            I believe this law would help improve the quality of health care and allow medical professionals to render appropriate care to their patients.  Over the last several decades HMOs have become the gatekeepers to health care for most patients.  They have rationed health care for their patients by restricting coverage to what they consider “medically necessary.”  Unfortunately, There are no guidelines for determining what treatments are medically necessary, and insurers’ medical decisions are often motivated by economic considerations.  The proposed law would give patients the ability to challenge arbitrary denials of treatment and deter HMOs from acting in bad faith.

 

   If you have been injured in an accident or your insurance company refuses to pay a claim, call ClarkeLaw PA for a free consultation at (305) 467-5560 or email us at john@clarkelawpa.com.

 

Big Changes May Soon Reshape Florida's Insurance Laws

Big Changes May Soon Reshape Florida's Insurance Laws

I.         Repeal of Mandatory PIP (personal injury protection insurance):  Several Florida legislators, including Senator Jeff Brandeis (Republican, St. Petersburg) are pushing for a repeal of mandatory PIP.  Their support for changing the system is motivated by a rising tide of fraudulent personal injury protection insurance claims around the state.  The proponents of the repeal advocate replacing it with a system in which injured drivers would look only to the at-fault driver’s bodily injury insurance policy (and his personal assets, if necessary) for reimbursement of their injury-related costs.  They believe that a consumer would save on auto insurance premiums if he were not required to buy PIP, but property damage and bodily injury liability coverages (that would cover other drivers and their passengers) instead.

I am not sure this repeal is the panacea that its advocates claim.   It is probable that the cost of bodily injury liability insurance will climb if the repeal is enacted.  Furthermore, I doubt that the repeal will reduce auto insurance fraud, since criminals could shift tactics, and purchase and claim against each other’s bodily injury liability policies.  The repeal would likely help the bottom-line of attorneys who specialize in personal injury cases, as more people would use the court system to compel payment for treating their injuries rather than going to their own insurance companies.

 

II.        Allow patients to sue HMOs for declining coverage of treatments recommended by their doctors in bad faith:  SB 262, sponsored by Greg Steube (Republican, Sarasota) would allow patients to sue health insurance corporations for denials of coverage that affects treatment.  Current law exempts HMOs from liability for medical providers’ treatment decisions.

            I believe this law would help improve the quality of health care and allow medical professionals to render appropriate care to their patients.  Over the last several decades HMOs have become the gatekeepers to health care for most patients.  They have rationed health care for their patients by restricting coverage to what they consider “medically necessary.”  Unfortunately, There are no guidelines for determining what treatments are medically necessary, and insurers’ medical decisions are often motivated by economic considerations.  The proposed law would give patients the ability to challenge arbitrary denials of treatment and deter HMOs from acting in bad faith.

 

   If you have been injured in an accident or your insurance company refuses to pay a claim, call ClarkeLaw PA for a free consultation at (305) 467-5560 or email us at john@clarkelawpa.com.