Choosing the Right Entity for Your Business

One of the biggest decisions that every business owner faces is how to organize his or her business so that it functions smoothly.  Common vehicles for owning a business in Florida include the LLC, the C corporation, the S corporation.  The alternative is  for the individual owner to own his business outright as a sole proprietor.

There are several issues that should be considered by the business owner in order to determine the best vehicle for business ownership:

-liability of individual business owners for the business’s debts

- how income received by the business is taxed, and whether the income will be taxed again    when it is filtered down to the business owner

- the number of owners, and the types of ownership interests that are to be created in the business  

-the business owner’s tolerance for paperwork and administrative formalities

-the size of the business and how much it is likely to grow over time

- what kind of asset protection, if any, a particular business entity will provide against judgment creditors of its members -

      Limitation of personal liability for actions taken by the business is a top concern for many business owners.  All species of corporations and LLCs  offer business owners important liability protection. 

Following is a summary of the prominent features of these business vehicles:

The C Corporation

A C Corporation is the ideal business model for a large business, in that its equity is owned as stock by many shareholders and its managers are generally not the primary owners.  The corporations that are listed on stock exchanges are organized as C corporations . Both C and S corporations are organized by shares and allow for the creation of multiple types of ownership interests. The difference is that a  C corporation’s income is taxed on two levels:  the company’s income is taxed at the corporate level, and then the dividends that get distributed to the shareholders are taxed as the shareholders’ personal income.  As stated below, an S corporation allows for a pass-through of corporate income to individual owners, so that taxes are only paid at the shareholder level.  Another difference between a C corporation and the other entities is that the former requires the observance of more formalities.

A C corporation , a traditional corporation, effectively insulates its shareholders from personal liability for the entity’s activities.  It is well-suited for dividing ownership among different classes of stockholders, and is the preferred vehicle for large businesses and businesses that intend to finance growth through sale of stock. On the down side, a C corporation entails substantial corporate formalities and taxes income received by  the business as well as dividends paid to stockholders

The LIMITED LIABILITY COMPANY

The Limited Liability Company is an entity that limits the liability of small business owners and allows for a different styles of management and taxation. The LLC has become a favorable choice for small businesses because they are inexpensive to set-up and can be tailored to the size and business objectives of the business owners

A Florida LLC can be managed by members or by a group of managers.  An LLC’s management structure is defined by an operating agreement.  Absent such an agreement, the default rules of the Florida Limited Liability Act apply.  These rules state that each member or manager of an LLC has the power to independently manage the business.  The operating agreement can also define how the LLC makes decisions, how it distributes profits and losses, and the contributions and equity shares of members.

A Florida LLC provides its members with charging order creditor protection by limiting a creditor's ability to seize or control the LLC’s assets in the event of a member's personal debt. Instead, a creditor who obtains a charging order is only entitled to the debtor-member's share of any distributions made by the LLC, without gaining voting rights or management control. This protection helps preserve the LLC's operations and the other members' interests, as the creditor cannot force the LLC to make distributions or liquidate assets. This topic is governed by Florida Statutes § 605.0503. Note that this type of creditor protection is only available to a multi-member LLC.

An LLC also offers the small business owner a significant tax advantage over a C corporation. LLCs are pass through entities, so all profits made by the business pass directly through the company to the owners.  The individuals members of the LLC receive profits or losses based on their ownership share, and then report them on their personal tax returns.. Because of the pass through of profits and losses, the LLC member pays taxes only once, while corporate income gets taxed twice.

 In summary, the LLC has become the most popular vehicle for the small business owner who wants to limit liability and tax exposure and deal with few corporate formalities.

The S Corporation

An S Corporation is  a tax designation that the IRS allows closely-held corporations to make.  It provides for the  pass-through of the profits and losses of the company  to its shareholders. A corporation eligible for S corporation status if it:

·         Has no more than 100 shareholders,

·         Has shareholders who are all individuals (exceptions are made for various tax-exempt organizations, estates, and trusts)

·         Has no nonresident as shareholders, and

·         Has only one class of stock.

The S corporation offers a tax advantage over an  LLC in that its can pay themselves a salary (subject to FICA tax and other withholding requirements), while the remaining net earnings can be distributed to them as passive dividend income not subject to self-employment tax. The earnings of an LLC, by contrast, are all counted as personal income to its members, therefore subject to self-employment tax.

When it comes to limiting tax exposure, it appears that a small business owner can have his cake and eat it too. The IRS allows LLCs to elect to be classified as S corporations and reap the savings of pass-through taxation.. This arrangement provides the small business owner with the flexibility of management offered by an LLC, and the tax savings of an S corporation.

The LIMITED LIABILITY PARTNERSHIP

LLP stands for Limited Liability Partnership. Both LLCs and LLPs limit the personal liability of their owners for the actions of the respective business entities. Unlike a LLC, a LLP is a type of partnership, so it must have more than one “partner.” LLPs are governed by the Florida Revised Uniform Limited Partnership Act.

In a Florida LLP, partners are categorized as either general partners or limited partners, each with distinct rights and liabilities. A general partner usually has the authority to manage the day -to-day operations of the business. A general partner may be held personally liable for his own actions, however, he is not liable for the wrongful acts of other partners. A limited partner, on the other hand, does not have management authority and is usually a passive investor. Importantly, the limited partner’s liability is generally limited to the amount of his investment in the LLP. He would not be personally liable for the actions of the general partners, nor any debts of the LLP in excess of his contribution.

LLPs are taxed like general partnerships. The owners report their income and expenses on a partnership tax form and the business’s profits or losses are passed through to their individual tax returns, similar to the tax treatment of  LLCs.  Importantly, all profits of LLCs and LLPs are taxed regardless of whether they are withdrawn from the business.

All partners in an LLP equally share responsibility when it comes to managing and making decisions for the business. They also share equally in the business’s profits and losses. An LLP is a good set-up for a small group of owners, who each want to take an active role in management of the business. An LLC, on the other hand, allows for a variety of management styles.

Selecting an appropriate entity is a vital part of establishing a new business. A business owner should carefully assess the tax, legal and operational rules of each business entity before deciding which one is the best fit. He should consult a  lawyer and an accountant to assist in the decision-making process.

Contact attorney John Clarke at (305) 467-5560 with any questions concerning starting your Florida business.

Will Contests

A will contest occurs when a party challenges the validity of a will in court.  As members of the eldest generation change their estate plans in later life with increasing frequency, will contests have become more common.

Florida law sets forth strict requirements for drafting and executing a valid will.  These requirements reflect the solemnity of the last will, which is intended to dispose of the will-maker’s (or testator’s) property and secure his legacy.  The grounds for contesting a will include lack of proper execution as well as substantive issues, as explained below: 

Lack of Valid Execution

There are several requirements that all wills must meet in order to be considered valid. They are:

• The testator must be at least 18 years old

• The will must be in writing

• The testator must sign at the end of the will or direct someone else to sign there in his presence

• The will must be signed in the presence of two witnesses, who must also sign it in the presence of the testator and each other

• The testator must be of sound mind (also called “testamentary capacity”)

If a court finds that the testator did not comply with any of these formalities in executing his will, then the will is generally held to be invalid.

Lack of Capacity

Florida case law defines “testamentary capacity” as the ability to mentally understand in a general way (1) the nature and extent of the property to be disposed of, (2) the testator’s relation to those who would naturally claim a substantial benefit from his will, and (3) a general understanding of the practical effect of the will as executed.   Thus, a testator who has a general understanding of the effect of his last will has the requisite testamentary capacity even if he doesn’t understand all the legal implications of the document.

Fraud and Forgery

A will is procured by fraud when the testator is led to sign the document under false pretext (for example, he is told that he is signing a different document). A forged will is one that bears a forged signature. Forgery also encompasses editing and modifying a will after a testator has validly signed the document. Fraud and forgery claims commonly arise in the context of elderly testator.

Undue Influence

Undue influence occurs when someone coerces another individual to sign a testamentary document (such as a last will) such that he completely subjugates the free will of the testator.  The following 3 elements are usually present in a successful claim for undue influence:

-          the influencer derives a substantial benefit under the will

-          the influencer was in a confidential relationship with the decedent

-          the influencer was active in the procurement of the will

Revocation

The validity of a will may also be attacked if the challenger presents evidence that  the will was revoked by a will or codicil executed at a later time.  A will may also be revoked by physically destroying the document.   Florida law presumes that, when an original will that is known to have existed cannot be located after the death of the decedent, the testator destroyed the will with the intent to revoke it.

Litigation of Will Contests

A will contest may be brought by any interested person, including “a beneficiary under a prior will.” Fla. Stat. § 733.109(1).  An “interested person” is defined as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.  The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.”   Fla. Stat. § 731.201(23).

The party challenging the validity of a will has the burden to prove that the will was not validly executed or does not reflect the intent of the testator. In order to prevail in the will contest, the challenger must present solid evidence in support of his claim.  For a claim based on revocation, the will challenger will typically present a later-executed will or codicil.  Evidence for a claim based on fraud or undue influence could include testimony of individuals who witnessed the preparation and execution of the will.

It is important to understand that the guiding principle of Florida probate law is the intent of the testator.  This means that a person is generally free to devise his property to the beneficiaries of his choosing (subject to a spouse’s elective share).  So, a testator’s choice not to devise his estate to his children is not in itself a valid ground for contesting the will.  If, on the other hand, it can be shown that a testator was unduly influenced to will his property to his caretaker, then his child may prevail in his will contest. 

Before challenging a will, it is also important to know how an estate will get distributed if a will is invalidated.  In the absence of a will or another subsequently-executed testamentary document, a  testator’s property passes according to the law of intestacy.  Under this scheme, a testator’s property will go to his closest of kin in an order of priority as specified by Fla. Stat.  § 731.101 – 732.111.

If you need a lawyer to represent you in a dispute over a will or an inheritance, contact Fort Lauderdale probate attorney John Clarke for a free consultation at (305) 467-5560.

Estate Planning Tips From a Professional

      In this time of uncertainty, it is more important than ever to plan for the future.   By executing the right estate planning documents and making your plans known to your loved ones, you can protect your health, wealth and legacy.

       Estate planning encompasses management of your assets while you are alive and succession of your property when you die. It includes making healthcare advance directives, as well as appointing trusted individuals to make decisions for you.   Good estate planning protects your assets now and in the future from creditors to the greatest extent possible, and minimizes your tax liability.

     Here are some strategies that I use to help my clients create the best possible estate plan:

1. Re-Title Assets to Avoid Probate:

      Upon a person’s death, his remaining assets will become a part of his probate estate .   The more assets that are in the probate estate, the higher the legal costs of the probate for the estate.  This is because a probate attorney’s fee is calculated according to the value of the estate, pursuant to statute.

 So it is generally in your best financial interest to designate beneficiaries on the titles of your assets in order to avoid probate.   

Florida law provides that all banks and financial institutions must allow account holders to designate transfer-on-death beneficiaries.   Upon the death of the owner, his beneficiary- designated account transfers automatically to his chosen beneficiary.  So this account will not need to be included in the owner’s probate estate.

 The same principle holds true for real property.   Florida law recognizes an enhanced life estate deed that allows the property owner to name a beneficiary of the property while the owner is still living.   This type of deed is enhanced because the property owner reserves the right to sell the property to someone else, if he changes his mind.   Once the owner dies, the property automatically passes to the designated beneficiary free of probate.          

2. Plan for the Improbable:

A good estate plan should plan for all contingencies.  A parent usually assumes that his child will outlive him, and may devise his property to the child in a will or trust.   The parent should also consider, however, that he may outlive his own child and should designate contingent beneficiaries.  The same principle holds true for appointment of personal representatives and trustees.  A well-drafted will or trust will provide for contingent fiduciaries to serve if the primary fiduciary is dead or incapacitated.

3. Choose Your Fiduciaries Carefully:

       A good estate plan will designate trusted individual(s) to administer a trust or to act as personal representative of the estate in a probate proceeding.    The estate planning document should state the powers that you are grant to your fiduciary.  If there is more than one fiduciary, the document should provide for how to resolve disputes between the fiduciaries.

4.  Consider Carefully Whether to Create a Will or a Trust:

       Generally speaking, a person can pass their assets upon their death by way of a will or a living trust.  Each tool has distinct advantages and disadvantages.   A formal probate of an estate pursuant to a will takes many months and involves substantial legal fees and costs.   On the other hand, the probate process is overseen by a court so there are strong incentives for the personal representative of the decedent’s estate to act honestly and diligently.

        A person who creates a living trust, on the other hand, transfers property to his trust during his life.   He designates someone to act as trustee after his death and to manage or distribute the property according to his instructions. Because the property is already in the trust at the time of his death, there is no probate needed.  The administration of the trust is not supervised by any court (though the successor trustee is required by law to file a copy of the trust in the public records upon the death of the trust creator, which puts beneficiaries of the trust on notice as to their rights).

5.      Let Your Loved Ones Know Where You Keep Your Documents:

         Florida law requires your heirs to prove your will upon your death.  By properly executing a will along with a “self-proving affidavit,” you make this process easy .  Your heirs need only file the original will with the clerk of court, and the will is proved.   If , however, your heirs can not locate the original will, proving the will can be difficult or impossible.  Furthermore, if no copy of your will can be found, then a presumption arises under the law that you intentionally destroyed the document.

6.     Consult an Experienced Estate Planning Attorney:

          Effectively planning an estate requires a lot of specialized knowledge.   There is specific language required to effectively convey your assets to your loved ones.   Florida law also requires strict compliance with certain formalities when you execute your documents. 

If you need assistance planning your estate or for the succession of your business,  contact estate planning attorney John Clarke using the form on this website or call the office at (954) 556-8952.

Homestead Exemption Protects 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

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.

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. 

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.

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).

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!

 

Electric Scooter 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.

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.

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

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)

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).

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.

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

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 Florida Statute 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!

Florida Land Trust

                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.

Call Florida asset protection attorney John Clarke at (954)556-8952 for a free consultaiton on how to protect your property from creditors!

Low-Cost Strategies to Avoid Probate

Probate is the process by which a court settles the estate of a decedent.   Unfortunately, a probate case can be time-consuming and expensive. Below are some strategies to help you plan your estate to avoid the need for a probate.

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.

"Ladybird" Deed

                The enhanced life estate deed, colloquially known as a “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.