Florida Lawyer Blogs

Business Income Loss Must be Caused by Covered Peril - Understanding Business Interruption Claims

Sun, 27 May 2012 20:36:38 +0000

First party property insurance litigation is sometimes an all or nothing affair. In Scottsdale Ins. Co. v. Sally Group, LLC, 2012 WL 1144577 (S.D. Tex. April 3, 2012), a cigar bar operator discovered mold in its humidor and reported a claim to its insurer. The bar, humidor and inventory were eventually demolished to remediate the mold conditions.

According to the testimony taken during the litigation, the bar’s humidification system never worked properly, and the owners knew of the failure prior to the policy’s inception. The water damage, however, was discovered during the policy period. Scottsdale denied payment for the property damages and business income loss, asserting that the loss was not the result of a fortuitous or accidental event.

The bar argued that although they knew that the humidifier did not operate properly, the system failed and leaked causing the excess humidity and mold. The court found that there was not enough evidence that the mold or humidity was caused by a breakdown or failure of the equipment, but rather as the result of the humidifier’s improper installation and operation.

With respect to the bar’s business income loss, the bar claimed reimbursement for ongoing operational expenses that it incurred and would continue to incur in order to mitigate any continuing damages to the premises.

The Policy’s Business Income (And Extra Expense) Coverage Form (Form CP 00 30 06 07), provides:

A. Coverage

1. Business Income
....
We will pay for the actual loss of Business Income you sustain due to the necessary “suspension” of your “operations” during the “period of restoration”. The “suspension” must be caused by direct physical loss of or damage to property at premises which are described in the Declarations and for which a Business Income Limit of Insurance is shown in the Declarations. The loss or damage must be caused by or result from a Covered Cause of Loss.

The court denied the bar’s business income claim, holding that recovery of business income loss requires the damages to be caused by a covered peril and not excluded under the policy:

The Business Income (and Extra Expenses) Coverage Form (CP 00 30 06 07) only covers loss or damage “caused by or result[ing] from a Covered Cause of Loss.” Therefore, the exclusions in the Cause of Loss—Special Form (CP 10 30 06 07) apply. Loss to personal property cannot be recovered if due to dampness or dryness of atmosphere, as occurred in this case. Furthermore, Scottsdale will not pay for loss or damage caused by or resulting from “[c]ontinuous or repeated seepage or leakage of water, or the presence or condensation of humidity, moisture or vapor, that occurs over a period of 14 days or more.” Both of these scenarios occurred here, thus exempting Rio 24’s loss from coverage.

BoxFish: Search Engine for Television References

Sun, 27 May 2012 12:32:37 +0000

While the world of internet search engines is dominated by Google, a new search site, Boxfish, has entered with an entirely new twist: searching for references on TV.

Calling themselves “TV’s information engine,” Boxfish grabs the closed captioning text streams from major broadcasters and makes it searchable in real time.

Formatting is not ideal but the content is fast and free.

This service is an excellent resource for trending issues (e.g., Facebook IPO, searching for references of “Romney” vs. “Obama”), latest news, and monitoring news references as they happen.

Stenotype Institute, based here in Florida, suggests that Boxfish may be a boon for stenographers. Ars Technica was also a fan.

Miami Lawyers Represent Cruise Passengers Sailing From Florida

Sun, 27 May 2012 05:10:08 +0000

The Miami Herald reports today that Florida's cruise ports are booming.

A report from the Florida Ports Council shows that Florida leads the nation in cruise operations. 13.5 million passengers embarked on cruises leaving Florida in 2011. This figure accounts for 60 percent of all U.S. cruise embarkations.

The combination of the Port of Miami, Port Everglades and Port Canaveral lead the nation in cruise passengers. Cruise passengers also cruise from Tampa and Jacksonville.

The majority of these cruise are with Carnival, Celebrity, Norwegian, and Royal Caribbean cruises lines. All of these cruise lines require that any lawsuits or sexual assaults which occur on cruise ships be filed in Miami Florida. All cruise lines have what are called "forum selection" clauses in the passenger tickets. The Miami based cruise lines like Carnival, Norwegian and Royal Caribbean list United States District Court for the Southern District of Florida as the only location where a lawsuit must be filed.

The United States Supreme Court addressed this issue and held that forum clauses in Miami are enforceable. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-96, 111 S. Ct. 1522, l527-28, 113 L. Ed. 2d 622, 631-33 (1991), a passenger from Oregon was injured during a Carnival cruise which left a port in California which sailed to Mexico. The Supreme Court upheld the dismissal of the case which the passenger filed in Oregon.

This year there have been several well publicized lawsuits filed against Carnival, Costa and Royal Caribbean filed in either Houston / Galveston or New York. All of these lawsuits will be dismissed because they were filed in the wrong courthouse. Carnival and Royal Caribbean must be filed in federal court in Miami, and Costa cases (sailing from the US) must be filed in federal court in Ft. Lauderdale.

Our firm is one of the best known firms in the world representing passengers and crew members injured or the victims of crime on cruise ships sailing from Florida or other ports around the world.

Walker & O'Neill and their cruise clients have appeared in documentaries, television and radio programs and in newspapers about cruise accidents and crimes well over 100 times. Jim Walker and Lisa O'Neill are both cum laude graduates of Duke University. Jim graduated from Tulane law school in New Orleans. Lisa is a cum laude graduate from law school at the University of Florida where she was a member of law review. They have combined experience of over 56 years.

CELTICS IN SIX

Rumpole — Sun, 27 May 2012 00:10:00 +0000

HEAT vs CELTICS

Rumpole predicts: Celtics in six.

URBAN WEEKEND PROCEEDING SMOOTHLY
According to the Herald and Ace Reporter David Ovalle, things on Miami Beach have gone fairly smoothly this weekend and the police have done a good job. Ovalle's report is here, including tenacious and in depth reporting on the "bikini-clad women" partying on south beach. No story is too difficult or disturbing for Mr. Ovalle. He does what he needs to do to get the facts, bikinis notwithstanding.

Cruise Ship Whacks Bridge in China

Sat, 26 May 2012 23:14:52 +0000

And here's some weird cruise news from China.

A new cruise ship under tow in China struck a passenger bridge in eastern China, causing damage to the vessel's funnels.

According to the Xinhua News agency, the bizarre incident involved a newly constructed cruise ship, called the No. 7 Mingzhu Pearl cruise ship.

Four tugboats were towing the cruise ship on the Ou Jiang river when the ship struck a bridge in the city of Wenzhou in the eastern province of China called Zhejiang.

There were no casualties reported.

There is a suggestion that the height of the vessel's structure was miscalculated because there were no passengers or cargo or provisions on the vessel when it was under tow.

Photo credit: Sina.com

Video credit: ITN News

Legislative Update: Changes to Florida Statutes Section 63.062 – Persons required to consent to adoption; affidavit of nonpaternity; waiver of venue

Sat, 26 May 2012 20:44:53 +0000

Florida recently passed updates to its Adoption statutes, which will go into effect on July 1, 2012. Among other statutes, section 63.062 was amended to clarify when it is necessary to obtain the consent for adoption of unmarried biological fathers and others, and what unmarried biological fathers must do to assert their rights to contest an adoption.

Below you will find the updated text of section 63.062 (new language is underlined, while deleted language is ~~stricken~~):

63.062 Persons required to consent to adoption; affidavit of nonpaternity; waiver of venue.—

(1) Unless supported by one or more of the grounds enumerated under s. 63.089(3), a petition to terminate parental rights pending adoption may be granted only if written consent has been executed as provided in s. 63.082 after the birth of the minor or notice has been served under s. 63.088 to:

(b) The father of the minor, if:

1. The minor was conceived or born while the father was married to the mother;

2. The minor is his child by adoption;

3. The minor has been adjudicated by the court to be his child before by the date a petition ~~is filed~~ for termination of parental rights is filed;

4. He has filed an affidavit of paternity pursuant to s. 382.013(2)(c) or he is listed on the child’s birth certificate before by the date a petition ~~is filed~~ for termination of parental rights is filed; or

5. In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required timeframes, and has complied with the requirements of subsection (2).

The status of the father shall be determined at the time of the filing of the petition to terminate parental rights and may not be modified, except as otherwise provided in s. 63.0423(9)(a), for purposes of his obligations and rights under this chapter by acts occurring after the filing of the petition to terminate parental rights.

(2) In accordance with subsection (1), the consent of an unmarried
biological father shall be necessary only if the unmarried biological father has complied with the requirements of this subsection.

(a)1. With regard to a child who is placed with adoptive parents more
than 6 months after the child’s birth, an unmarried biological father must have developed a substantial relationship with the child, taken some measure of responsibility for the child and the child’s future, and demonstrated a full commitment to the responsibilities of parenthood by providing reasonable and regular financial support to the child in accordance with the unmarried biological father’s ability, if not prevented from doing so by the person or authorized agency having lawful custody of the child, and either:

a. Regularly visited the child at least monthly, when physically and
financially able to do so and when not prevented from doing so by the birth mother or the person or authorized agency having lawful custody of the child; or

b. Maintained regular communication with the child or with the person
or agency having the care or custody of the child, when physically or
financially unable to visit the child or when not prevented from doing so by the birth mother or person or authorized agency having lawful custody of the child.

2. The mere fact that an unmarried biological father expresses a desire to fulfill his responsibilities towards his child which is unsupported by acts evidencing this intent does not preclude a finding by the court that the unmarried biological father failed to comply with the requirements of this subsection.

2.3. An unmarried biological father who openly lived with the child for at least 6 months within the 1-year period following the birth of the child and immediately preceding placement of the child with adoptive parents and who openly held himself out to be the father of the child during that period shall be deemed to have developed a substantial relationship with the child and to have otherwise met the requirements of this paragraph.

(b) With regard to a child who is ~~younger than~~ 6 months of age or younger at the time the child is placed with the adoptive parents, an unmarried biological father must have demonstrated a full commitment to his parental responsibility by having performed all of the following acts prior to the time the mother executes her consent for adoption:

1. Filed a notarized claim of paternity form with the Florida Putative Father Registry within the Office of Vital Statistics of the Department of Health, which form shall be maintained in the confidential registry established for that purpose and shall be considered filed when the notice is entered in the registry of notices from unmarried biological fathers.

2. Upon service of a notice of an intended adoption plan or a petition for termination of parental rights pending adoption, executed and filed an affidavit in that proceeding stating that he is personally fully able and willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother’s pregnancy and the child’s birth in accordance with his ability to pay.

3. If he had knowledge of the pregnancy, paid a fair and reasonable amount of the living and medical expenses incurred in connection with the mother’s pregnancy and the child’s birth, in accordance with his financial ability and when not prevented from doing so by the birth mother or person or authorized agency having lawful custody of the child. The responsibility of the unmarried biological father to provide financial assistance to the birth mother during her pregnancy and to the child after birth is not abated because support is being provided to the birth mother or child by the adoption entity, a prospective adoptive parent, or a third party, nor does it serve as a basis to excuse the birth father’s failure to provide support.

(c) The mere fact that a father expresses a desire to fulfill his responsibilities towards his child which is unsupported by acts evidencing this intent does not meet the requirements of this section.

(d)~~(c)~~ The petitioner shall file with the court a certificate from the Office of Vital Statistics stating that a diligent search has been made of the Florida Putative Father Registry of notices from unmarried biological fathers described in subparagraph (b)1. and that no filing has been found pertaining to the father of the child in question or, if a filing is found, stating the name of the putative father and the time and date of filing. That certificate shall be filed with the court prior to the entry of a final judgment of termination of parental rights.

(e)~~(d)~~ An unmarried biological father who does not comply with each of the conditions provided in this subsection is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required.

(3) Pursuant to chapter 48, an adoption entity shall serve a notice of intended adoption plan upon any known and locatable unmarried biological father who is identified to the adoption entity by the mother by the date she signs her consent for adoption if the child is 6 months of age or less at the time the consent is executed ~~or who is identified by a diligent search of the Florida Putative Father Registry, or upon an entity whose consent is required~~. Service of the notice of intended adoption plan is not required ~~mandatory~~ when the unmarried biological father signs a consent for adoption or an affidavit of nonpaternity or when the child is more than 6 months of age at the time of the execution of the consent by the mother. The notice may be served at any time before the child’s birth or before placing the child in the adoptive home. The recipient of the notice may waive service of process by executing a waiver and acknowledging receipt of the plan. The notice of intended adoption plan must specifically state that if the unmarried biological father desires to contest the adoption plan he must, within 30 days after service, file with the court a verified response that contains a pledge of commitment to the child in substantial compliance with subparagraph (2)(b)2. and a claim of paternity form with the Office of Vital Statistics, and must provide the adoption entity with a copy of the verified response filed with the court and the claim of paternity form filed with the Office of Vital Statistics. The notice must also include instructions for submitting a claim of paternity form to the Office of Vital Statistics and the address to which the claim must be sent. If the party served with the notice of intended adoption plan is an entity whose consent is required, the notice must specifically state that the entity must file, within 30 days after service, a verified response setting forth a legal basis for contesting the intended adoption plan, specifically addressing the best interests ~~interest~~ of the child.

(a) If the unmarried biological father or entity whose consent is required fails to timely and properly file a verified response with the court and, in the case of an unmarried biological father, a claim of paternity form with the Office of Vital Statistics, the court shall enter a default judgment against the ~~any~~ unmarried biological father or entity and the consent of that unmarried biological father or entity shall no longer be required under this chapter and shall be deemed to have waived any claim of rights to the child. To avoid an entry of a default judgment, within 30 days after receipt of service of the notice of intended adoption plan:

1. The unmarried biological father must:

a. File a claim of paternity with the Florida Putative Father Registry maintained by the Office of Vital Statistics;

b. File a verified response with the court which contains a pledge of commitment to the child in substantial compliance with subparagraph (2)(b) 2.; and

c. Provide support for the birth mother and the child.

2. The entity whose consent is required must file a verified response setting forth a legal basis for contesting the intended adoption plan, specifically addressing the best interests ~~interest~~ of the child.

(b) If the mother identifies a potential unmarried biological father within the timeframes required by the statute, whose location is unknown, the adoption entity shall conduct a diligent search pursuant to s. 63.088. If, upon completion of a diligent search, the potential unmarried biological father’s location remains unknown and a search of the Florida Putative Father Registry fails to reveal a match, the adoption entity shall request in the petition for termination of parental rights pending adoption that the court declare the diligent search to be in compliance with s. 63.088, that the adoption entity has no further obligation to provide notice to the potential unmarried biological father, and that the potential unmarried biological father’s consent to the adoption is not required.

(4) Any person whose consent is required under paragraph (1)(b), or any other man, may execute an irrevocable affidavit of nonpaternity in lieu of a consent under this section and by doing so waives notice to all court proceedings after the date of execution. An affidavit of nonpaternity must be executed as provided in s. 63.082. The affidavit of nonpaternity may be executed prior to the birth of the child. The person executing the affidavit must receive disclosure under s. 63.085 prior to signing the affidavit. For purposes of this chapter, an affidavit of nonpaternity is sufficient if it contains a specific denial of parental obligations and does not need to deny the existence of a biological relationship.

(8) A petition to adopt an adult may be granted if:

(a) Written consent to adoption has been executed by the adult and the
adult’s spouse, if any, unless the spouse’s consent is waived by the court for good cause.

If you are looking to adopt a child in Florida and you wish to speak with a Tampa Bay Adoption Attorney, contact The Law Firm of Adam B. Cordover, P.A., at 813-443-0615 or by filling out our consultation form.

Risks of Car Accidents in Fort Myers and Elsewhere Reduced with Headlights!

Sat, 26 May 2012 15:03:00 +0000

It's those first few rain drops that signify danger.

As we head into the rainy season, you may have noticed a lot more black clouds over the city and a lot more scattered showers. It's important for drivers to adjust their driving habits in rainy conditions to help to avoid a potentially fatal car accident in Cape Coral and elsewhere throughout Southwest Florida.

Even after the showers start, the risks for a potentially fatal accident continue to increase. Our Cape Coral accident attorneys understand that our roadways are the slipperiest when the rain begins. Oil dropped from cars on our roadways mixed with the falling rain leads to some serious accident risks. We have a few simple safety tips to help you to safely navigate your way through the rainy season on our Florida roadways. Listen up!

Turn on your headlights! As soon as you see the rain start to roll in make sure to kick on your headlights! Turning on your headlights when it's raining not only helps you to see better, but it helps other motorists to see you as well!

In the state of Florida it is a law to drive with your headlights on when driving in inclement weather (Florida's Driver's Handbook Online 2009, Pages 19, 25 and 26).

It's also important for you to slow it down on our roadways when the rain starts falling. In heavy rain, like we've seen recently, your tires can wind up riding along on our roadways on a thin film of water. This is kind of how skis work. It's called hydroplaning. This is when you're driving along and you tires aren't actually touching the road. In these cases, you can easily lose control of your vehicle and skid out of control. You always want to keep your tires on the road by slowing down a bit when it's raining. You should also make sure that your tires are in good condition, that the air pressure is correct and that the tread isn't too worn.

Another thing you want to keep an eye on while you're driving through the rain is your vehicle's brakes. In deep water and in heavy rain your vehicle's brakes can get wet, which may cause them to pull to one side or to not hold at all. In these cases, you're urged to slow down and lightly push on the brake until they're working again. If they get too bad, your best bet is to pull over, stop and wait it out.

As we head into the rainy season that we all know so well, remember to adjust your driving habits to accommodate the dangerous weather. When it doubt, turn on your headlights. If you need more info on how to handle your vehicle in the rainy weather, feel free to visit the Florida Department of Highway Safety and Motor Vehicles (DHSMV) for a free copy of the Florida's Driver's Handbook Online.

Lastly, we also ask that you be courteous while driving. Keep off the high beams when you're following another driver or when a vehicle is heading your way. When you have your high beams on it can blind other drivers and can cause serious accidents.

What's in a title? Why Policyholders Need to Know the Difference Between an Independent Adjuster and a Public Adjuster, Part I

Sat, 26 May 2012 12:32:32 +0000

In most states, insurance adjusters must be licensed. Florida's licensing laws allow for adjusters to be licensed as company adjusters, independent adjusters, and public adjusters. But are policyholders aware of the difference between these adjusters?

If you have been reading my Saturday posts, you have likely read many of the stories and cases involving public insurance adjusters. A person who holds a public insurance license works for policyholders only; they do not work for insurance companies, have no ties to insurance companies, and are not getting assignments from insurance companies. Public insurance adjusters assist policyholders with property insurance claims and are hired by the policyholders directly to present and handle the claim on their behalf.

When a policyholder has a claim, they are required to promptly notify the insurance company of the loss. Typically, the insurance company will respond by sending an adjuster to the property. The adjuster assigned to the claim by the insurance company may be a company adjuster or an independent insurance adjuster, but that adjuster is working for the insurance company.

When the adjuster comes from the insurance company, policyholders should be aware that this person works for the insurance company and is paid by the insurance company regardless of how your claim is handled. Policyholders should not be confused by the title of the adjuster. If the adjuster who comes to the home or the business and introduces himself or herself as an Independent Insurance Adjuster, this does not mean the person is available to work for you as a policyholder. An independent insurance adjuster is independent because they can work for multiple insurance companies at one time.

In Florida, an independent adjuster does not and cannot work on behalf of the policyholder.

Florida Statute § 626.855 defines independent adjuster:

An “independent adjuster” means a person licensed as an all-lines adjuster who is self-appointed or appointed and employed by an independent adjusting firm or other independent adjuster, and who undertakes on behalf of an insurer to ascertain and determine the amount of any claim, loss, or damage payable under an insurance contract or undertakes to effect settlement of such claim, loss, or damage.

Public adjuster Gary Thompson, of Innovative Public Adjusters, encourages policyholders to always request a business card from independent and company adjusters and to ask these questions:

Who does the adjuster work for and to whom does he report? Get names.
Is he or she familiar with your insurance policy? Do they have a copy with them?
What have they been asked to do in connection with your claim?
Do they have authority or the ability to resolve the claim with you directly?
Will the adjuster send information from the visit to the insurance company?
When will this information be submitted and what happens next?
Does the adjuster need any information from you?

You may be surprised by the answers to the questions. And if the adjuster seems to avoid answering these questions or does not answer them to your satisfaction, policyholder should be aware that in a majority of states they can hire a public adjuster to work on their behalf presenting and pursuing the claim with the insurance company. While this may be your first claim, an experienced public adjuster professionally handles various types of losses and knows what is acceptable and unacceptable in connection with a claim evaluation by your insurance company.

Next week, look for more discussion on the role of the independent adjuster and their ability to bind insurance companies in negotiations and decisions.

Pittsburgh DUI Checkpoint Memorial Day Weekend

Sat, 26 May 2012 02:36:41 +0000

Pittsburgh police will conduct sobriety checkpoints/roadblocks this Memorial Day weekend.

The patrols will be in place between the hours of 11 p.m. and 4 a.m. throughout the South Hills and West End sections of the City.

If anyone has more information please share it.

South Florida Memorial Day Traffic May Be More Dangerous Than Other Holiday Weekends; Drivers More Apt to Run Red Lights

Fri, 25 May 2012 21:04:57 +0000

Memorial Day weekend 2012 has officially commenced. According to traffic safety experts, there's good news and bad news for drivers in Palm Beach County, Broward County, Miami-Dade County and through South Florida.

The good news: AAA reports that gas prices are going down. Even saving a few cents per gallon can ease pain at the pump for South Florida drivers.

The bad news: Memorial Day weekend is a dangerous time to be on our nation's roadways -- as frazzled motorists in Florida and across the nation engage in dangerous driving behaviors that can cause serious and fatal auto accidents.

A report by the National Coalition for Safer Roads found that the incidence of drivers running red lights increases by 27 percent on Memorial Day weekend, as compared to non-holiday weekends. A coalition spokesperson was quoted as saying Memorial Day weekend "…is the most dangerous time" for motorists to travel on U.S. roads and highways.

A Miami, FL car accident injury lawyer works with South Florida families when a motor vehicle accident with injuries or fatalities occurs.

Running a red light in Florida is extremely dangerous driving behavior. Traffic accidents at intersections -- including pedestrian accidents -- involving Florida drivers who run red lights can result in serious injury and death. A pedestrian crossing at the crosswalk, or a car proceeding forward on a green light, does not expect another motorist to come barreling through the red light. South Florida traffic crashes involving drivers running red lights can lead to deadly pedestrian and broadside accidents, as well as multi-car accidents -- causing serious damage to property and loss of life and limb.

Why is Memorial Day Weekend such a dangerous time to drive? And why are drivers more apt to run red lights at this time? The coalition report suggests that drivers are simply in a hurry to get where they're going… As people who live and work in South Florida, we've all witnessed this holiday weekend crunch to get on the highway, beat rush hour, and "make good time" to get where we all need to go. Too often, drivers speed up when they see a yellow light, when its purpose is intended to slow them down. The report found that nationally -- 2.3 million drivers in 18 states ran a red light in 2011.

AAA told the Sun Sentinel that they expect an uptick in South Florida traffic this Memorial Day weekend, with some 1.6 million people taking to Florida's highways and secondary roads. Wherever you're headed, be it on Florida I-95 or some other roadway, drive defensively. Have a safe and happy holiday weekend.

Sources:

Study: Running stoplights spikes during Memorial Day weekend
USA Today May 24, 2012

South Florida roads, airports expect busy Memorial Day weekend
SunSentinel.com May 21, 2012

National Coalition for Safer Roads (homepage)

Zurich Offers New Excess Flood Coverage Policies

Fri, 25 May 2012 19:08:36 +0000

Whether from a hurricane, a broken dam, or a rising river, floods are one of the most common and most costly causes of loss. Because flood insurance is so difficult to obtain, floods are also one of the most feared causes of loss.

On May 22, Sergio Leal wrote about the problems currently facing the National Flood Insurance Program. Since most policyholders rely on the NFIP for flood coverage, this is a particularly important debate for associations located on the coast or in flood prone areas.

The NFIP has low limits on coverage, generally $250,000 for homeowners and $500,000 for commercial property owners. This is inadequate for most associations.

Recently, Zurich announced that it would begin offering excess flood insurance to residential and commercial policyholders in all 50 states. According to the carrier, coverage will be offered for property damage, additional living expenses, and business interruption.

With hurricane season beginning shortly, associations should speak with their brokers and consider supplementing existing coverage if necessary. Property damage, loss of use, and business interruption can be costly but, with the appropriate coverages, reimbursable.

Overweight Teens Make for Overweight Adults and Serious Heart Risks

Fri, 25 May 2012 18:40:40 +0000

In a study released on May 21, 2012, the Journal Pediatrics reported that half of the nation’s overweight teens have unhealthy blood pressure, cholesterol or blood sugar levels that put them at high risk for future heart attacks and other cardiac problems.

Unfortunately, we’re losing the battle early with many kids. People can keep their risk of heart disease very low if they reach age 45 or 50 at normal weight and with normal blood pressure, normal cholesterol and no diabetes. The study demonstrates that half of our overweight teens have higher than normal blood pressure, cholesterol and/or blood sugar levels. So, today’s teens have a 20 or 30 year head start on heart disease.

It is important now more than ever to set a good example for our children by eating healthy, exercising, and keeping our weight within normal limits. Eating healthy does not mean you can’t have an occasional donut, burger or fries. As with most everything, moderation is the key to success.

Good eating habits learned at an early age can carry us to adulthood; avoiding many health care issues that may arise such as obesity, diabetes, and cardiac problems.

To read more on the health risks associated with being overweight see the following links:

Overweight Teens at Risk for Heart Disease

CDC: Half of overweight teens have heart risk

Studies Show Overweight Teens Have Heart Disease Risk

Jacksonville Area Man Arrested For Stealing Catalytic Converters

Fri, 25 May 2012 18:20:36 +0000

Jacksonville’s citizens sometimes feel that they need to take what is not theirs in order to ensure that they have what they want and need to survive. From nine to ninety, people are accused of theft crimes, some, which they did not commit. If someone has been in a situation like this, one should obtain an experienced attorney to fight for one’s case and ensure one’s rights are known and protected.

According to the Florida Times-Union, Torre Frankie Ludwig, has been charged with grand theft after he was found with a catalytic converter and a sawzall in his van. Ludwig’s arrest came after an Orange Park salvage shop alerted police that Ludwig had sold them thirteen catalytic converters in a week’s time, Ludwig receiving over $1,000 in profit from the sales.

Jacksonville theft crimes typically involve theft of some sort of property that will be resold in order to get money. This means that pawn shops, junk yards, and salvage shops, will be the first targets for the reselling of stolen property. As such, the police and shops such as these have teamed up to report suspicious activity such as receiving stolen property or reselling stolen property. Unfortunately, the time between receiving the stolen property and identifying the seller may be too far removed to be accurate.

Most think that theft crimes would be crimes such as robbing banks, department stores, and other commonly associated establishments. However, as the economy has taken a turn, the types of items being stolen has increased and diversified. Catalytic converters have become a very common target for theft, as one theft catalytic converter could be worth as much as $200 at a junkyard or scrap shop.

Law Enforcement as well as others in the legal system are endeavoring to crack down on theft crimes such as these before they become more prevalent in courtrooms across Florida. Many people accused of such crimes are punished much harder for that particular offense because the nature of the offense has such secondary effects as an inoperable car that must now be towed. However tragic for the victim, many of these accused parties’ intent was not to intentionally harm one person but try to help one’s self acquire one’s needs.

Many times in Jacksonville, the place receiving stolen property will attempt to identify the person who supposedly sold the stolen property to them. Police will normally pass around pictures and general information about suspects of such crimes at these establishments. However, by the time that a business or an employee attempts to identify the person, the memory of that suspect is faded, leaving too much room for error in identification.

Many times in the legal system, innocent people are accused of crimes simply because they were in the wrong place at the wrong time. Unfortunately, proving one’s innocence may not be an easy task on one’s own. Fortunately for one in a situation like this, if one obtains an experienced Jacksonville theft crimes defense attorney to fight for one’s case and ensure one’s rights are protected, one will be able to make sure that one will suffer for something that one simply did not do.

Could Cyber Crime in Florida (and Beyond) Soon Be FBI's #1 Priority?

Fri, 25 May 2012 17:43:45 +0000

The Federal Bureau of Investigation has set its sites on stopping cyber crime in Florida and beyond. In March, FBI Director Robert Mueller announced that cyber crime is now the Bureau's third most important priority, just behind counterintelligence and counterterrorism.

David West, a supervisor for the FBI based in Georgia, summarized the rationale for the intensified focus: "[the cybercrime industry] did not exist in the way it does today 20 years ago and, with respect to businesses, the direct impact of cybercrime is in the billions of dollars."

Increasingly Diverse Battlegrounds

The types of cyber crimes, as well as the motivations behind these acts, are diversifying at a rapid and alarming rate. As we have moved into the "Web 2.0" era, we've witnessed something of an arms race between criminals and law enforcement.

Back in the "Wild West" days of the internet, cybercriminals often worked as jacks-of-all-trades. Today, however, there is simply too much technology -- too many options -- to master. Thus, both perpetrators and those who work to neutralize cybercrime have developed more specific, niche-like strategies. What this means is that fewer and fewer people -- even at the expert level -- deeply understand what's happening on a granular level.

What to Do If You've Been Arrested for Cyber Crime in Florida

Whether you hacked into a south Florida bank's security system; or you and several international partners got arrested for a complex phishing scam, you're probably feeling pretty scared. You could, indeed, face jail time, massive fees, probation, forced remuneration to victims, and more. If convicted of a felony cyber crime, you could serve over a year in jail and lose important rights, such as the right to vote in elections.

Constructing a Powerful Legal Defense

There are no "cookie-cutter defenses" to cyber crime charges. To build your strategy, your Florida criminal lawyer will need to consider a variety of factors, such as:

• The jurisdiction in which you're charged;
• The nature and scope of the damage done;
• All the laws and case histories that might be applicable;
• Whether you have a past history of crime;
• Whether you committed additional crimes during the commission of the cyber crime.

If you've been arrested, do not delay getting appropriate legal help immediately. Seltzer Law, P.A., is a well-known and respected cyber crime defense law firm. Call us toll-free at 1-888-THE-DEFENSE (888-843-3333), or connect with us online for a free and confidential consultation.

New Florida Law Was Not Necessary

Fri, 25 May 2012 17:32:00 +0000

As you may have already heard, one of the bills passed by the Florida Legislature during the 2012 Legislative Session will impact community associations by eliminating implied warranties in common areas such as roadways, underground pipes, and utilities. Common law implied warranties mean that the...

This is a summary only. Visit http://www.floridacondohoalawblog.com or click the post title for the full entry.

Federal Judge Throws Out Governor Scott's Order to Drug Test State Employees

Fri, 25 May 2012 17:24:48 +0000

Florida Governor Rick Scott issued an order in March of 2011 which would allow the state to drug test its employees randomly and without any suspicion of drug use or improper conduct. The order has been challenged as a violation of a person's right to be free from unreasonable searches and seizures under the Constitution. Governor Scott defended the order by comparing a drug test to a requirement to make certain financial disclosures.

The federal court noted that everyone has a Constitutional privacy interest in his/her bodily fluids. As a result, the state cannot intrude upon one's Constitutionally protected privacy interest without a specific reason. The Governor also cannot condition a state job or any other government benefit on one's willingness to give up his/her Constitutional right to privacy.

As it stands, Governor Scott's two attempts to increase the role of government by drug testing people, whether those with state jobs or those seeking welfare benefits, have been blocked by federal judges as violations of the Constitution.

Professor Appeals DEA's Medical Marijuana Research Ban

Fri, 25 May 2012 17:00:00 +0000

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law A professor at the University of Massachusetts-Amherst is appealing a final order issued by the Drug Enforcement Administration (DEA) that prohibits him from growing marijuana for medical research purposes. Appeals Court Hears Oral Arguments in Medical Marijuana Research Case. The US Court of Appeals for the First Circuit heard oral arguments in the case on May 11, 2012. During the hearing the DEA attempted to get the case thrown out by claiming that the court has no jurisdiction over the issue. The court’s ruling should come in about three months....

Florida Supreme Court Amends Family Forms

noreply@blogger.com (Christopher Chopin) — Fri, 25 May 2012 16:19:00 +0000

The Florida Supreme Court issued a 201 page opinion amending the approved family law forms yesterday, the full text of which is located here. Virtually all of the forms have been updated to conform with recent changes in the law, but the changes appear to be very minor.

Fifth District Examines Standard of Review

noreply@blogger.com (Christopher Chopin) — Fri, 25 May 2012 16:15:00 +0000

The Fifth District Court of Appeal issued an opinion today in Schwieterman v. Schwieterman, first spending time to address the appropriate standard of review as to the lower tribunal’s adoption of a parenting plan. The Former Wife contended that, as the lower court mistakenly believed there was a presumption in favor of equal timesharing, the ruling constituted an error in the application of law, requiring a de novo review. The Former Husband, on the other hand, argued that abuse of discretion was the more appropriate standard. The District Court found no evidence that the lower court had applied a presumption in favor of equal timesharing when it granted that relief, and as such found that a de novo review would be inappropriate. In reviewing the judgment only under the abuse of discretion standard, the Fifth District affirmed the timesharing provisions. However, as to provisions in the parenting plan which essentially appointed the Former Husband’s parents as decision-makers in the event of an emergency or deadlock, the Fifth District agreed with the Former Wife that these provisions interfered with her parental rights, and that in the event of a deadlock the dispute must be presented to the trial court. The Fifth District also found error in a requirement that the Former Wife provide notification of medical appointments not to the parents of the Former Husband. The Court reversed as to these issues alone.

Who can Foreclose on My Home?

Fri, 25 May 2012 16:06:22 +0000

It seems it would be common sense that the real party in interest with standing to pursue foreclosure is the owner and holder of the promissory note. That is the reason form 1.944 exists, right?

So why is it that the majority of Complaints are brought by the servicer on behalf of the actual owner of the Note? The reason stems from a continuing misconception that a Note indorsed in blank, permits any holder of the Note to pursue foreclosure.

"Our files on these matters have been closed."

South Florida Lawyers — Fri, 25 May 2012 15:44:00 +0000

Nice bureaucratic passive-speak, but the result is the same:

The Florida Bar has cleared prominent Miami litigators Michael Tein and Guy Lewis of wrongdoing in a dispute over alleged discovery violations in their representation of two members of the Miccosukee Tribe.

A Miami-Dade Circuit grievance committee found no probable cause Wednesday for disciplinary proceedings against Tein and Lewis, partners at Miami-based Lewis Tein. Lewis is a former U.S. attorney for the Southern District of Florida. Tein is a former federal prosecutor.

Have a great holiday weekend!

Wait, let me rephrase -- It is hoped that your weekend on this holiday is one of enjoyment!

If I Default, will it hurt my Credit Score?

Fri, 25 May 2012 14:44:57 +0000

One of the major concerns clients have with pursuing bankruptcy, a short sale, a deed-in-lieu of foreclosure, or foreclosure is the impact it will have on their credit score. Defaulting on a loan is not an easy reality for anyone to face, but the overwhelming increase in unemployment rates, the slowing economy, and falling home values have created insurmountable hardships for many Americans, who are left with no other alternatives.
Creditors continue to prey on the consciences of honorable consumers who want to pay their debts but simply do not have the means to do so. Although alternatives such as bankruptcy and short sales provide consumers with an avenue to “start fresh” or the option to sell a home for less than what is owed on the loan without a deficiency, it is by no means an easy way out of existing financial obligations. Such options come with consequences that should be carefully weighed against their benefits.

How Do You Get Your Driver's License Back After Refusing to Take a Breath or Urine Test in Palm Beach Florida?

Fri, 25 May 2012 14:30:49 +0000

If you refuse to take a breath or urine test in Palm Beach Florida, your driver's license will be suspended for 1 year if it is your first refusal and for 18 months if you have previously refused.

In order to apply for a hardship license so that you can do such things as drive back and forth to work or go to a doctor's appointment, you must do the following things:

1. Provide proof of enrollment in a DUI school to the Administrative Reviews Office.

2. If the Administrative Reviews Office approves your request for a hardship license, you must present written approval from that office to the driver's license office.

However, you cannot get a hardship license if you have refused to take a breath or urine test two or more times.

If you decide to wait to get a regular driver's license after your revocation period ends, then you have to either provide proof of enrollment in DUI school or else completion of DUI school at the driver's license office.

Finally, at the time you are applying for either a hardship license or a regular license, you must do the following:

1. Take a required examination.

2. Pay an Administrative fee.

3. Pay a suspension reinstatement fee.

4. Pay any license fee that is required.

5. If you have been convicted of DUI, you must show proof that you have bodily injury liability insurance.

If you have been charged with DUI or are simply under investigation for DUI, call me at 561-832-4348.

Florida Intestacy Law Applied to Deny Social Security Benefits to Posthumously Conceived Children

Fri, 25 May 2012 14:24:13 +0000

The United States Supreme Court, in the recent case of Astrue v. Capato, used Florida intestacy law to determine that the Social Security Act (Act) does not apply to extend benefits to children conceived and born after a Florida wage-earner’s death.

Eighteen months after Karen Capato’s husband, Robert Capato, died of cancer, Karen Capato gave birth to twins conceived through in vitro fertilization using Robert’s frozen sperm. The Capatos were residents of Florida. Karen applied for Social Security survivor’s benefits for the twins. The Social Security Administration (SSA) denied Karen’s application, and litigation ensued.

Karen argued that the twins fall under the definition of child contained in 42 USC § 416(e). Section 416(e) of the Act defines “child” to mean: “(1) the child or legally adopted child of an individual, (2) a stepchild [under certain circumstances], and (3) … the grandchild or stepgrandchild of an individual or his spouse [under certain conditions].” Section (e)(1) does not elaborate the conditions under which a child qualifies for benefits. Karen argued that because the twins were undisputedly Robert’s children, the twins qualified for SSA benefits.

The SSA argued that subsequent provisions of the Act control the definition of child, specifically section 416(h)(2)(A) which provides that:

In determining whether an applicant is the child or parent of [an] insured individual for purposes of this subchapter, the Commissioner of Social Security shall apply [the intestacy law of the insured individual’s domiciliary State].

The district court affirmed the SSA’s decision. The Court of Appeals reversed, holding that “the undisputed biological children of a deceased wage earner and his widow” qualify for survivors benefits without regard to state intestacy law, finding that there can be no doubt when the claimant is the biological child of a married couple.

The United States Supreme Court held that the Act is designed to benefit primarily those supported by the deceased wage earner in his or her lifetime. The Supreme Court noted that marriage does not ever and always make the parentage of a child certain, and that Karen’s definition “biological child of married parents” would cover the posthumously conceived Caputo twins, noting that under Florida law, a marriage ends upon the death of a spouse. See Price v. Price, 114 Fla. 233, 235, 153 So. 904, 905 (1934).

The United States Supreme Court also noted that many states have statutes that provide for posthumously conceived children. Florida law does not have such a statute. Florida law contains as statute addressing afterborn heirs, section 732.106, which states:

Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent’s lifetime.

The Florida statute does not state that heirs of the decedent conceived after death inherit intestate property as if they had been born during the decedent’s lifetime. Because Florida intestacy law controlled, the Capato twins were not entitled to SSA benefits.

Memorial Day Celebrations could lead to a Jacksonville DUI

Jacksonville Criminal Defense Lawyer Christopher D. Walsh — Fri, 25 May 2012 14:21:20 +0000

This weekend marks the beginning of Summer for most Jacksonville residents. This three-day weekend will allow families and friends to leave home and head to that desired destination. However, with fun and the sun, some might decide to over indulge in alcoholic beverages. Some even decide Driving under the influence would be a good idea. As a Jacksonville DUI Lawyer, I can tell you a Jacksonville DUI is NOT a good idea. The penalties are harsh and could have a lasting impact upon your life and your future career path.

Florida's DUI laws are governed by Statute. Florida Statute § 316.193, which defines DUI as driving or in actual physical control of a vehicle within this state and the person, is under the influence of alcoholic beverages...[with] a BAC of 0.08 or more. The penalties range depending upon number of convictions and other aggravating factors. Just as a note, the statute just requires a "motorized vehicle" and driving or physical control. So this means you could get a DUI for sitting in a parked car with the motor running listening to music, even if you never had the intention to "drive" anywhere. The law is tricky in this aspect and that is where the advice and counsel of a Jacksonville DUI Lawyer may prove to be invaluable.

But what does all this mean for Jacksonville Motorist? It means a DUI charge can come in many forms, not just driving down the road after having too much to drink. However, a charge of Jacksonville DUI does not necessarily mean a conviction. The State still has to prove their case beyond a reasonable doubt. Furthermore, a Jacksonville DUI Lawyer can evaluate your case and determine if there are any mitigating factors or justifications for the alleged DUI.

Are Survivors Under Florida's Wrongful Death Act Truly Immune to Sanctions?

Fri, 25 May 2012 13:37:33 +0000

Little known by most lay people is that every plaintiff involved in litigation, even those who appear to walk away with favorable judgments, may be subject to court sanctions in the form of paying the defendant's attorneys fees.

The sanction can be imposed under Florida Rule of Civil Procedure 1.442, known as the Proposal for Settlement rule. Under the PFS rule, if the plaintiff refuses a pretrial offer for 25% more than the case is worth, the plaintiff may have to pay the defendant's attorneys fees incurred from the date of the offer through the trial of the case. (For purposes of this topic, the worth of a case is the amount of the final judgment. A final judgment is not the same thing as a verdict.)

The courts appear to have found an exception to the PFS rule for survivors in cases brought under Florida's Wrongful Death Act.

In Kadlecik v. Haim, 79 S03d 892 (Fla. 5th DCA 2012), the court gave the following explanation for the exception:

Under Florida's Wrongful Death Act, an estate's personal representative brings all claims on behalf of both the estate and the decedent's survivors. §§ 768.16-.26, Fla. Stat. (2010). The personal representative has the exclusive authority to conduct litigation and settle all claims. Thompson v. Hodson, 825 So. 2d 941 (Fla. 1st DCA 2002); Pearson v. DeLamerens, 656 So. 2d 217 (Fla. 3d DCA 1995). The survivors are not parties to the wrongful death litigation, even when the claims are brought for their benefit. Accordingly, it is error to award attorneys' fees against the survivors because the personal representative is the only person with authority to settle the claim and the individual survivors cannot be fairly said to have rejected an offer of settlement. See Beseau v. Bhalani, 904 So. 2d 641, 642 (Fla. 5th DCA 2005) (holding that entry of judgment against survivor was erroneous as, despite being individually named on complaint, she was not proper party to proceeding); Thompson, 825 So. 2d at 952 (holding that attorneys' fees cannot be assessed against survivors in wrongful death action based on offer of judgment since personal representative alone has authority to settle and survivors cannot be said to have rejected offer of settlement).

Is the exception foolproof? At least one Florida lawyer, the renowned Dale Swope, of Swope, Rodante, P.A., in Tampa, has doubts. (His article on the subject is contained in the March/April 2012 #559 edition of the Journal, a magazine published for members of the Florida Justice Association.)

This Is Wrong For 40,000 Reasons.

South Florida Lawyers — Fri, 25 May 2012 11:28:00 +0000

Hey it's a long holiday weekend -- is anyone even around today?

Another Vacancy on the 11th Circuit -- Is a Compromise Near?

South Florida Lawyers — Fri, 25 May 2012 11:23:00 +0000

Hi there, SFL filling in for DOM as we hit the long holiday weekend.

It's true our own Judge Jordan was elevated without too much drama, discord, or delay, but that's not the case with Jill Pryor, who was nominated in February to fill Judge Birch's seat but has yet to be confirmed.

Now comes word that Judge J.L. Edmondson plans to go senior, possibly paving the way for a deal:

An intriguing possibility is that Edmondson's decision could allow the White House and the senators to compromise on a package of two nominees to the Eleventh Circuit — namely, Pryor and Troutman Sanders partner Mark Cohen.

Earlier this year, Chambliss and Isakson sent White House Counsel Kathryn Ruemmler a letter indicating they would return blue slips on Pryor and U.S. Magistrate Judge Linda Walker for district court spots and Cohen for the circuit seat.

The Daily Report previously reported that Cohen was vetted late last year by FBI agents and the U.S. Justice Department for the Eleventh Circuit post, an indication the White House had considered him for Birch's seat. Cohen has Democratic connections — he served as Governor Zell Miller's executive counsel and chief of staff.

But, acting as a special assistant attorney general for the state, he defended challenges to Georgia's voter ID law, a statute that Democrats generally consider anathema. Pryor, a partner at the Atlanta litigation boutique Bondurant Mixson & Elmore, previously was a member of the American Civil Liberties Union of Georgia's legal committee.

But it's by no means clear that either the White House or the senators would go for such a package.

Hmm, a Troutman Sanders partner who defended Georgia's voter ID law -- I think that makes you a moderate in the Peanut State.

UPL and Legal Document Preparation by Non-Lawyer Providers

Fri, 25 May 2012 09:08:54 +0000

The ABA Standing Committee on Client Protection just released a survey it conducted on unlicensed practice of law programs ( UPL) in United States jurisdictions in 2011-12.

Only 29 jurisdictions responded to the survey. Twenty-three of the 29 actively enforce UPL regulations, although some jurisdictions indicate that insufficient funding or resources make enforcement challenging. Nine jurisdictions stated that enforcement is inactive or non-existent.

Of the jurisdictions reporting, 21 states permit some form of limited practice by non-lawyers. Here is the summary from the report:

Twenty-one jurisdictions authorize nonlawyers to perform some legal services in limited areas. Sixteen permit legal assistants, legal technicians or paralegals to perform some legal services under the supervision of a lawyer; six jurisdictions permit nonlawyers to draft legal documents. Other allowable nonlawyer activities include: real estate agents/brokers may draft documents for property transactions or attend real estate closings; nonlawyers may attend (and in some states participate in) administrative proceedings; and participate in alternative dispute resolution proceedings. Many of these jurisdictions do not classify these activities as the practice of law.

There are only six jurisdictions in the US that permit nonlawyers to prepare legal documents,
(without providing legal advice). These jurisdictions are California, Arizona, the District of Columbia, Florida, Maine, and Missouri. In these jurisdictions the "nonlawyers" are referred to as - "Legal Document Preparers" or "Legal Technicians".

[ Download Entire Report Here ].

Only one jurisdiction that we know of, the State of Texas, makes an exception to the definition of the practice of law, and explicitly permits the sale and distribution of self-help legal software, software-powered legal web sites, self-help law books, and other technologically-based alternatives to the delivery of legal services.

It's no wonder that LegalZoom is required to state in its S-1 filing to go public - that violation of UPL statutes in many states is a major risk factor for its business:

"Our business model includes the provision of services that represent an alternative to traditional legal services, which subjects us to allegations of UPL. UPL generally refers to an entity or person giving legal advice who is not licensed to practice law. However, laws and regulations defining UPL, and the governing bodies that enforce UPL rules, differ among the various jurisdictions in which we operate. We are unable to acquire a license to practice law in the United States, or employ, or employ licensed attorneys to provide legal advice to our customers, because we do not meet the regulatory environment of being exclusively owned by licensed attorneys. We are also subject to laws and regulations that govern business transactions between attorneys and non-attorneys, including those related to the ethics of attorney fee-splitting and the corporate practice of law."

Some Observations

Some entity, such as the US Legal Services Corporation whose goal is to expand access to justice for all, or an independent or university-based research organization, should undertake empirical research which analyzes whether non-lawyer practices actually cause harm to consumers within the states that permit nonlawyer document preparation. Research should also be done on the impact that nonlawyer legal form web sites have on the consumer in terms of benefits and potential harm. Empirical research in England by the Legal Services Consumer Board on the issue of whether will writing by non-lawyers causes harm, concluded that it did. This resulted in making will drafting and will writing a reserved area under the new UK legal profession deregulation scheme.

We need more empirical research like the UK Study to inform public policy making in this area. Perhaps if LegalZoom is successful with its public underwriting it could subsidize or contribute to such a study, as it would certainly be in their interest to do so!

Research should be conducted in those states that permit nonlawyer document preparers to evaluate whether more consumers have access to the legal system and at a lower cost by using nonlawyer document preparers, rather than attorneys. This data would inform public policy with facts, instead of generalized theories that it is necessary to limit legal document preparation services to licensed attorneys in the interest of "protecting" the public from harm.

Legal document preparation software is getting smarter -- more intelligent-- Web-enabled document automation applications can now generate documents that really do reflect a person's individual circumstances. These applications are getting smarter and the intelligent templates easier to build. Other than in Texas, there is an issue as to whether legal software, standing alone, constitutes the unauthorized practice of law, despite disclaimers to the contrary.

State Bar UPL Committees should consider adopting the Texas UPL exception to avoid charges of monopolistic behavior, to gain the confidence of the public that the organized Bar is really interested in expanding access to the legal system through the use of technology, and to encourage innovation in the delivery of legal services. [Disclosure: We operate an intelligent legal forms software company ].

It would be interesting to see whether legal fees are also lower in jurisdictions which have competition from nonlawyer document preparers as these authors claim.

Jacksonville Bankruptcy Attorney: Former Tampa Bay Buccaneer's Star Warren Sapp Files for Bankruptcy

Fri, 25 May 2012 09:00:00 +0000

According to the Washington Post, Warren Sapp, former NFL star, has filed for bankruptcy in a Florida federal bankruptcy court. In his Chapter 7 filing he claimed that he owed nearly $7 million to creditors and for child support and alimony. In his filing he listed his assets as his collection of Jordan athletic shoes, watch, and ring, but it did not include his Super Bowl ring and his national championship ring. He claimed that he lost both rings.

Sapp's current income is listed as being nearly $116,000.00. Included in that number is a $45,000 final payment from Showtime, a $48,000 appearance fee, and a nearly $19,000 advanced from a book. Sapp is currently employed as an analyst at the NFL Network. His contract is set to end in August and it is unclear whether he will renew that contract.

Warren Sapp is best known for his time with the Tampa Bay Buccaneers and with the Oakland Raiders. He spent 13 years in the NFL and had a sizeable income. Somehow his income could not compensate for his debts and now he is forced to file for bankruptcy.

Sapp is not the first athlete to have significant financial troubles. Several professional athletes and movie stars have been plagued with bad money management and as a result have had to declare bankruptcy, sometimes more than once. Even the very rich and quickly become very broke if they do not take the time to manage their money correctly.

Filing for bankruptcy can be beneficial if there is no way that you can pay your debts back. However, it should be a last resort. If you find yourself needing the services of a Jacksonville bankruptcy attorney, please call the Jacksonville Bankruptcy Attorneys at the Apple Law Firm. As professionals who are experienced in the bankruptcy arena, our attorney will provide you with the best advice regarding your financial options.

Source: "Former NFL star Warren Sapp file for bankruptcy in South Florida, owes more than $6.7 million," published at WashingtonPost.com.

Jacksonville Divorce Attorney: Social Media Pressure Comes to Bear on Jewish Divorce

Fri, 25 May 2012 09:00:00 +0000

Some creative Boca Raton residents are using social media pressure to get one woman's husband to sign their divorce papers. A Jewish woman has found out the hard way that her husband is not willing to grant her a Jewish divorce. Although she has received a civil divorce, Jewish divorce laws require that the husband sign a Get, a Jewish divorce decree, which would allow his ex-wife to remarry.

Yomin Postelnik and Leah Postelnik went through a tumultuous divorce and Yomin refused to grant his wife a Get, even though a host of rabbinical courts handed down orders for him to sign the document. A rabbi in Boca Raton heard about the case and mounted a social media campaign against Yomin to pressure him into signing the document. He urged several in the South Florida Jewish community to blackball Yomin until he granted Leah the divorce.

The Postelnik's are not the only Jewish couple going through a divorce and who have experienced social media pressure. Tara Epstein and Aharon Friedman had a similar experience to the Poselniks. Friedman refused to grant Epstien a religious divorce. The social media campaign against Friedman was so aggressive that some were even demanding that he be fired from his job with United States Representative Dave Champ, R-Mich.

While this case involves Jewish litigants, it is possible that social media could be used to harass and pressure divorce litigants regardless of their faith. It is not advisable that anyone engage in such an aggressive campaign. When going through a divorce proceeding, it is important that litigants be careful what they post on social media websites. If that information is available to the public, it can be used against the poster in future legal proceedings.

If you have questions about a divorce proceeding and would like a Jacksonville divorce attorney to assist you in the matter by email or by calling today at (904) 685-1200.

Source: "Desperate for a divorce," by Lois K. Solomon, published at Sun-Sentinel.com.

Confusing Custody Case

Fri, 25 May 2012 05:32:11 +0000

Warren Jeffs of Salt Lake City is involved in a rather confusing child custody case. Jeffs has nine children with his wife, Amy, who is a member of a polygamous sect of the Fundamentalist Church of Jesus Christ of Latter-Day...

Confusing Custody Case

Fri, 25 May 2012 05:32:11 +0000

JAABLOG WELCOME

Fri, 25 May 2012 01:30:00 +0000

LEAVE ALL FIELDS BLANK IF YOU WOULD LIKE TO POST YOUR COMMENTS ANONYMOUSLY
(except the security code; it stops spam, and is the only required field)
comments containing curse words will not post

JAABLOG Presents:

Dining With Diaz!

THURSDAY NOTES

Fri, 25 May 2012 01:29:00 +0000

Wooddell's woes continue - more trouble for former BSO Deputy Brent Wooddell. The SAO has filed a second Motion To Revoke Bond, after Wooddell got lucky the first time. Apparently he's now picked up a Leaving The Scene Of An Accident. There could be more allegations, so we'll be sure to follow-up after tomorrow's bond revocation hearing ...

Justin Medlin update - fire fighter Medlin has been offered probation by the SAO, after all hell broke loose surrounding allegations of juror misconduct. The deal reportedly involved a large cash payment to compensate the victim for injuries suffered, but last we heard negotiations broke down over the SAO's insistence on an Adjudication. A check of Odyssey shows the case has landed in Lisa Porter's lap, which probably means Cindy Imperato granted the previously filed Motion To Disqualify (we can't confirm until the court file is checked). The allegations of juror misconduct will likely now be explored further, unless Medlin grabs a sweetened SAO offer in lieu of continuing his battle for a new trial ...

Facebook friends - Denzle Latty is getting some play with the Fourth DCA, after reportedly moving to disqualify Andy Siegel from a case with SBU ASA Nicole Alvarez for being friends on Facebook. We're getting this one even more second hand than usual, but there are apparently some interesting issues being raised. If time allows after reporting on Mary Robinson's and Bobby Diaz's whereabouts and lunch choices, we'll take a peek at the file and let you know exactly what this one is all about ...

"Too much flak from the candidates" - that's the reason given by a Supervisor of Elections' employee earlier today as to why candidates' Disclosure of Financial Interests forms are no longer posted on their website. Unlike the Division of Elections, which handles circuit court filings, Brenda Snipes caved in to pressure from local politicos, who apparently don't like Florida's broad Sunshine Laws when it comes to their own personal business. In any event, it's quick and easy to get them if you happen to be in the Broward Governmental Center, and only fifteen cents a page (did you hear that Mr. Forman?). We pulled Bobby Diaz's today, listing a net worth of $326,319, mostly consisting of a $300,000 house in Wilton Manors, a $90,000 condo in St. Petersburg, $35,000 in securities, a Ford Explorer, and an old Cadillac CTS (before deducting liabilities, of course). His moonlighting at Nova Law School as a part time teacher brings in $2,000 a year, on top of the $130,632 listed as his judicial salary. Not a bad haul, considering the cushy hours ...

Just a rumour - the murmurs regarding Roshawn Banks quitting her quest for the county bench are simply not true. Rumors got started after mutual friends of Bobby Diaz and Banks put a ton of pressure on her to bail in favor of the incumbent, but it got them nowhere. Banks tells us she's more committed than ever, busy making the rounds on a daily basis. Well done!

"A Legacy of Justice" - the smarmiest campaign slogan since Eileen O'Connor's "Vote With Honor, Vote O'Connor" debuted this week, on a slickly designed Dale Ross mailer. The snarling pit bull of yesteryear has been magically transformed into a cuddly old man via a series of staged photos, featuring a shot portraying family bliss including daughter Stacy Ross and husband Al Ribas, one with three similarly height challenged police officers, and one of Dale explaining something to an African-American woman who is definitely not wearing handcuffs. Apparently anything goes in politics, although whatever Ross has left behind, it certainly is fair to call it a legacy of sorts ...

New JAC rates - courtesy of Rumpole, here is a PDF from FACDL ...

Coming Friday - Leading by Example: Will Mary Robinson make it four half days this week? ...

Thomas Daugherty's homeless beating murder conviction affirmed

Teah Wimberly's murder conviction also affirmed

Finkelstein v. Fuller

PBSO deputies violated rights by demanding blood tests in DUI cases

Duval court clerk can't run again because of term limits

First District Court Reverses Equitable Distribution

noreply@blogger.com (Christopher Chopin) — Fri, 25 May 2012 00:18:00 +0000

The First District Court of Appeal reversed today in Vanetten v. Vanetten, a case in which the lower tribunal only valued the parties’ liabilities and one of their assets due to the limited evidence provided for that purpose. The lower court divided the asset equally, and the liabilities unequally, without any finding supporting an unequal distribution. This mandated reversal.

SUMMER FUN

Rumpole — Thu, 24 May 2012 21:27:00 +0000

BREAKING- we've posted a video of the FACDL court appointment fees meeting- below.

The much anticipated, hotly debated, often imitated,
never duplicated, Judge Milton Hirsch summer practice order ( (c) The Honorable Milton Hirsch, 2012 all rights reserved) has been issued:
There is a tide in the affairs of men.
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures.
Brutus, Julius Caesar.

Good afternoon,
The judge has officially decided to initiate his “Summer Rules” for the upcoming summer term. Starting July 2^nd, 2012 and ending September 4^th, 2012, Judge Hirsch’s calendar will begin at 9:30am, as opposed to the original time of 9:00am. Please keep in mind that this will only be in effect for the stated time period. In case this is not abundantly clear, this will ONLY be in effect between July 2^nd, 2012 and September 4^th, 2012. Come September 5^th, 2012, calendar will sadly return to beginning at 9:00am. Thank you! Feel free to call if you have any questions.

Rumpole says: Some addendums to the summer rules: Gin will be exclusively served until September 6, 2012. Gentlemen may wear poplin or seersucker suits from Wednesday through Friday whenst not in trial. Ladies and Gentlemen may begin to wear white through Labor day, but not beyond. Straw wide- brim hats are appropriate for gentlemen at the bar, while the fashionable lady lawyer may enter court with a petite parasol. Shaved ices will be served at Au Bon Pain along with iced tea and mint-sweetened or un-sweet.

FACDL COURT APPOINTMENT MEETING.
Through the power of technology, an alert reader recorded the meeting. To set the scene, a frightened group of small business owners are threatened by a malevolent force about to strike in the summer. They schedule a meeting, and an unlikely, quirky loner offers to save the day- for $10,000.00. So ante up, and watch the video.

"I'll find him for 3...but I'll catch him and kill him for ten....Ten thousand dollars for me by myself. For that you get the head, the tail, the whole damn thing."

Rumpole says: The FACDL needs to hire Quint.

See you In Court.

Florida Traumatic Brain Injury: TBI Information

Thu, 24 May 2012 19:37:54 +0000

This article will help you better understand brain injury and more about a diagnosis of traumatic brain injury, sometimes called TBI, for short. Traumatic brain injuries are those caused by a blow to the head or from violent movement of the head. For example, it can be caused by striking the head against a car windshield, could be related to a fall and striking the head, related to a military explosion. A person does not have to have an open head wound, a skull fracture, or even a loss of consciousness to sustain a traumatic brain injury.

No two people are alike and no two brain injuries are alike. Doctors classify traumatic brain injuries as mild, moderate or severe, depending on the initial length of loss of consciousness and post traumatic memory loss. There are overlaps in the symptoms of each of these classifications. The terms mild, moderate and severe may not correlate or describe the expected outcomes in a person’s life.

A mild traumatic brain injury occurs when the patient initially loses consciousness for 15 minutes or less. If they have any memory loss about the trauma event, or they feel dazed and disorientated or confused, it’s often called a concussion. The majority of traumatic brain injuries are initially rated as mild.

Moderate traumatic brain injuries include a loss of consciousness from 15 minutes to a few hours, followed by a few days to few weeks of confusion.

Severe traumatic brain injuries affect less than 10% of patients and involve a loss of consciousness for 6 hours or longer after injury or after a period of clarity. People who remain unconsciousness for a very long time may be in a coma or a minimally conscious state.

Physical symptoms of traumatic brain injury can include:

Difficulty coordinating balance
Blurred vision
Headaches
Trouble speaking and swallowing
Lack of bowel and bladder control

People with traumatic brain injury may have trouble moving their body normally. Doctors call this motor impairment. The person may have seizures, vision problems, and changes in sensory perceptions and sleep patterns. Persons with traumatic brain injury can have personality changes, trouble communicating, and memory issues. They may also be depressed and disorientated, have mood swings, be forgetful, and have difficulty forming sentences or choosing vocabulary. After a brain injury, conversation with your loved one may be difficult. He or she may have poor concentration, a limited attention span, or difficulty remembering what was said. As a loved one of a patient with a traumatic brain injury, it is a good idea to adapt to these changes by developing coping skills and finding resources for support.

Need practical advice in dealing with the injury and the consequences to your loved one and your family? The LaBovick Law Group is here to help. We have been through several catastrophic brain injury cases and can offer the support and advice you need. Contact one of our Florida Brain Injury Lawyer today.

Florida Traumatic Brain Injury: TBI Information

Thu, 24 May 2012 19:37:54 +0000

Moderate traumatic brain injuries include a loss of consciousness from 15 minutes to a few hours, followed by a few days to few weeks of confusion.

Physical symptoms of traumatic brain injury can include:

Difficulty coordinating balance
Blurred vision
Headaches
Trouble speaking and swallowing
Lack of bowel and bladder control

Husband Speaks Out To Media In Jacksonville Triple-Assault Case

Thu, 24 May 2012 18:59:10 +0000

Jacksonville’s citizens can sometimes be very dramatic and sometimes very violent when they are dramatic. For many, violence against friends and family members will bring about the consequence of a criminal case being brought against them. If one has been in a similar situation, one should obtain an experienced attorney to fight for one’s case and ensure one’s rights are protected.

According to the Florida Times-Union, Rico Gray, husband to the recently convicted Marissa Alexander, has spoken to the media about the events surrounding the shooting Alexander was accused of. The shooting, according to Gray, occurred after Gray and Alexander began fighting. Alexander then allegedly grabbed a gun, loaded it, and fired at Gray and the couple’s two children. Alexander has been sentenced to twenty years in prison.

Jacksonville assault crimes typically involve an action on the part of the accused that is unreasonable given the circumstances, but acceptable in the mind of the accused at the time. Unfortunately for the accused, in such instances, the legal system does not agree. However, the mental state of the accused is an avenue that can be used to either lessen one’s amount of time one would serve, or not serve any time at all.

Many times in Jacksonville, people are victimized in the relationships that participate in, and retaliate with force to make the victimization stop. Unfortunately for many accused individuals within the legal system, the reality of home life is more than one could take and because one reacted in the manner in which they thought adequately protected themselves from harm, the consequence one faces is an even worse harm than the harm one was trying to escape from.

In this case, Alexander was denied immunity under Florida’s “Stand Your Ground” Law, which allows someone to use deadly force if they fear that imminent harm is upon them. In this case, Alexander claimed that Gray was being violent towards her; Gray refuted that he merely held his arms up to “buy time” so that he and his children could leave the home. This telling is one timeline of the events, although there is no evidence that the man’s statements were entirely accurate.

Many times in family related crimes such as a domestic battery charge or, in this case, multiple aggravated assault charges, the accused is caught in a battle of words, as typically there is not enough evidence to show who started the altercation and how the altercation finished, as many of these crimes, like in this case, happen in private homes. This lack of sure truth about the events of criminal act many times will subject the accused to an even rougher and sometimes longer time in the legal system.

When one is up against the wall in legal battles attempting to salvage what freedom one has left, one should not waste time thinking about the possible outcomes. One in a situation like this should immediately obtain an experienced Jacksonville aggravated assault crimes defense attorney to fight for one’s case and ensure one’s rights and defenses are known and protected. One should not waste time when the solution to one’s predicament is out there waiting.

Florida Cardiologist Issued Emergency Suspension Order for Performing Stem Cell Treatments

Thu, 24 May 2012 17:00:00 +0000

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law A Florida cardiologist recently had his medical license emergently suspended by the Florida Department of Health (DOH) for performing stem cell treatments. According to the emergency suspension order (ESO), the DOH had previously warned the doctor to stop performing these treatments in 2011. Now, his license is at risk of being revoked. To view the ESO click here. DOH Suspends Cardiologist's License Because He Was Allegedly Performing Stem Cell Treatments. The DOH ordered the emergency suspension of the cardiologist's medical license in March 2012....

Tort and Probate Law: Tortious Interference and Expected Inheritance

Thu, 24 May 2012 16:44:59 +0000

The recent decision of a Florida appellate court has shed some light on a little discussed aspect of tort and probate law in the state of Florida. The Third District Court of Appeals ruled in the case of Saewitz v. Saewitz that to sustain a prima facie case for tortious interference with expected inheritance the plaintiff must prove damages.

In this case, two daughters, Mercedes and Brooke Saewitz claimed that while their father was dying their step-mother Lynn Saewitz manipulated their father and tortuously interfered with their inheritance. At trial, the case was dismissed because the trial judge held that the daughters did not prove the damage element required to make a prima facie case of tortious interference. The elements of the cause of action are as follows:

(1) expectancy by the plaintiff to receive an inheritance;
(2) intentional interference with that expectancy by the defendant;
(3) defendant's interference involves tortious conduct;
(4) reasonable certainty that but for the defendant's tortious interference the plaintiff would have his/her expectancy; and
(5) damages.

Like any tort or crime, all of the elements must be met in order to sustain the claim. If one of the elements is missing, the plaintiff cannot recover. In the Saewitz case the plaintiffs could not determine with any certainty the value of the property that they claim was tortiously interfered with. At trial, three witnesses testified regarding the value of the property, however no one could provide a specific value of the property at the legally recognizable time. Florida requires that the value of the property be measure at the time of conversion. Since no one testified about when the property was actually converted, there is no proper measuring standard.

Because this tort is relatively new in the state of Florida, those who may be going through probate would need a Florida estate planning attorney to assist them if they believe someone has tortiously interfered with their inheritance. If you questions regarding Florida probate law, contact the Apple Law Firm PLLC and speak with a Jacksonville Probate Litigation Attorney today at (904) 685-1200.

Source: "Tortious Interference with Expected Inheritance in Florida," published at BusinessReviewUSA.com.

U.S. Supreme Court Determines Post Death Conceived Florida Born Children Not Entitled To Social Security Benefits

Thu, 24 May 2012 15:32:54 +0000

Children conceived after the death of a genetic parent are becoming very common. Soldiers being sent to combat arenas oftentimes bank sperm or eggs in case they don't come back or are injured to the point of being unable to conceive. Chemotherapy patients can also do the same thing. There are a variety of reasons why a person would want to ensure that they are able to reproduce at a later date. In vitro fertilization technology has reached a point where the sperm and egg of persons who are long dead can be combined to produce children. In fact, it is no longer necessary for either parent to be alive for reproduction to occur. However, what happens if they die and the surviving spouse (or anybody else for that matter) wants to have children with that person? Are those children entitled to Social Security benefits from their deceased parents? This is a question that was being answered in conflicting ways by the lower federal courts dealing with the situation.

The question has now been answered in a case involving a Florida chemotherapy patient who banked his sperm. After his death, his wife used in vitro fertilization which was successful and led to the birth of twins. The mother applied for Social Security survivor benefits and was rejected. Unfortunately, because of the wording of the federal law regarding Social Security benefits for surviving children, the United States Supreme Court has indicated that because the child could not be demonstrated to be "dependent upon the deceased individual at the time of his or her death", the child was not eligible for Social Security survivor benefits. Because Florida law limits intestate succession to children who are born or at least conceived prior to the death of a parent, this opinion upheld the Social Security Administration's rejection of benefits. However, this opinion is limited to the facts and law as presented. It is entirely possible that other states laws could result in a totally different result.

What does this mean to Florida citizens? Under current Florida law, children conceived after a genetic parent has died may not be eligible to inherit from the deceased parent and are currently ineligible for Social Security benefits. Children conceived prior to the death of a genetic parent will have a different result. It is important that persons contemplating the banking of sperm or eggs for any reason have a solid understanding of the law of the state where they are living. That will likely be the law that will be used to apply for a variety of issues that can arise when the parent dies. The law is very unsettled in this arena, as fast as technology changes, the law often times takes years to catch up.

LaBovick Law Group has a Florida family law attorneys department devoted to such issues. The Director of this department, Attorney Joseph R. Fields, Jr., Esq. has advised many parents on these issues. Contact Mr. Fields today for a free consultation regarding your Florida family law matter.

Associations Required to Insure Some Portions of Unit

Thu, 24 May 2012 15:09:45 +0000

Question: In a recent column you mentioned that under Florida law, the association must insure certain portions of the unit even though it has no general maintenance, repair, or replacement responsibility with respect to those items. You mentioned interior doors and hardware doors as a good example...

This is a summary only. Visit http://www.floridacondohoalawblog.com or click the post title for the full entry.

Raoul Cantero and Mark Schlakman Remind Us: ABA Recommendations Aren't Being Implemented in Florida

Thu, 24 May 2012 15:01:00 +0000

Recently, the Tampa Bay Times published a guest column by former Florida Supreme Court justice Raoul Cantero and Mark Schlakman, senior program director for the Center for the Advancement of Human Rights at Florida State University and board chairman for the Innocence Project of Florida. Schlakman also is a past member of the American Bar Association's Florida Death Penalty Assessment Team.

Cantero and Schlakman periodically publish joint articles regarding Florida's death penalty practice. See our prior posts discussing a few of them, including:

an Miami Herald Op-Ed; and
an extensively sited article in the Florida Times-Union.

Here's an excerpt, we encourage you to read their latest column in its entirety:

Challenging the status quo to promote fairness and impartiality in our justice system can be a daunting task even for legal practitioners. When Florida's death penalty process is at issue, the task can be further complicated because such efforts are often equated with being soft on crime or insensitive to victims' issues. . ..

More than five years ago, the American Bar Association released a comprehensive report developed by a team of eight Florida-based experts that raised serious concerns about Florida's death penalty process. . . . Few of its recommendations have been implemented.

Dog Bite Claims in Fort Myers and Elsewhere Cost Insurance Companies Nearly $500M in 2011

Thu, 24 May 2012 14:30:21 +0000

Our Fort Myers dog bite injury attorneys understand that more than 4.5 million people are bitten by a dog each year. More than half of these dog bite victims are in fact children. The second leading group of victims is Postal Service workers. Of all of the victims, nearly 1 million rely on medical attention for the treatment of these injuries. About 20 victims die each year.

These accidents are no joke and because of it, the third full week of each May is designated as National Dog Bite Prevention Week. During this time, members of State Farm, of the American Veterinary Medical Association and of the U.S. Postal Service, team up to raise awareness. They release nationwide statistics and launch a number of campaigns to help to promote dog safety.

A dog's tendency to bite can be caused by a number of factors, including health, socialization, behavior, training and heredity.

According to the ASPCA, about half of all children in the U.S. will be bitten by a dog before they turn 12-years-old. What's most alarming is that a majority of these dog bite incidents will involve a dog in the family or a neighbor's dog.

According to Florida statues, dangerous dogs are covered under dog bite laws. The owner of a pup that bites a person, when they're on allowable grounds, is liable for the damages that are suffered by the victim, regardless of the former viciousness of the dog or the owners' knowledge of such viciousness.

However, any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by a corresponding percentage.
If a dog has already been deemed as a dangerous dog or has been involved in prior attacks and the dog acts out again, then the owner will face misdemeanor charges, the pup will be impounded for ten days in which time an owner may request a hearing.

It's important to contact an experienced attorney when dealing with dog bite claims. These issues are complex. Contact and experienced attorney to help you to navigate your way through the system and to help you to fight for the compensation that you deserve!

Is it Rolling, Bob?

South Florida Lawyers — Thu, 24 May 2012 14:10:00 +0000

Happy Birthday Bobby D!!

It's Important for Associations to Maintain Liability Coverage for Board Members

Thu, 24 May 2012 13:59:53 +0000

On October 14, 2011, Corey Harris explained Florida’s standard of director’s liability in his blog post, Am I Personally Liable Simply For Being A Director? As he noted, “[t]he longstanding precedent discussed in Munder v. Circle One Condominium, Inc., 596 So.2d 144 (Fla. 4th DCA 1992), provides that directors are immune from individual liability unless a crime or fraud has been committed or there has been self-dealing or unjust enrichment. As a result, negligent actions are not individually actionable, even if such actions are clearly wrong.”

Serving as a director or officer of an association is important. It takes time, energy, and resources. Every association needs intelligent and capable people on its board and as its directors. It is a privilege to be offered such a position and gives many people the opportunity to serve their community faithfully and with due care. Unfortunately, accusations and mistakes occur, so one of the most important things an association can do is provide its directors and officers with liability insurance.

The two most common types of directors and officers liability policies (“D&O”) for homeowner associations are package policies and stand-alone policies. A package or master policy usually provides property, general liability, crime, and other coverages, including D&O liability coverage. Usually, if the package policy provides D&O coverage, it is more limited than a stand-alone policy. It is advantageous for associations to provide independent D&O policies to verify sufficient coverage.

It is just as important to understand D&O policies to ensure proper claims handling if the need arises. Most D&O liability policies provide coverage on a claims-made basis. This typically means that the policy in effect when the claim is presented is the policy that pays the claim, subject to certain limitations.

Before deciding to serve as a director or officer of an association, it is important to find out if the association has D&O coverage. The next step is to make sure sufficient coverage exists. If it is just a part of the package policy, I recommend seeking an additional claims-made policy. The additional liability coverage very well may prevent problems for you in the future.

Next week, I am going to explain the two major limitations that may have an impact on coverage under claims-made policies.

Is a Short Sale better on my credit than a Foreclosure in St Johns County?

Thu, 24 May 2012 13:25:06 +0000

Many homeowners in St. Johns County who fall behind on their mortgages, want to try to mitigate the issues through a St. Johns County Short Sale in order to avoid foreclosure. We see many clients who have been told that a short sale will solve all of their problems. Other homeowners or real estate agents who do not fully understand the process and the risks associated with short sales in St. Johns County typically communicate an improper or incomplete message to other homeowners.

One main motivation of trying to Short Sale their home is the belief that a Short Sale in St. Johns County is much better on their credit score than an actual foreclosure. However, this belief is often misplaced. A Short Sale does in fact hurt your credit score. And it almost affects your credit score about the same as a foreclosure. In reality because of the heightened credit requirements, there is very little difference between a Short Sale or a Foreclosure.

If your credit score was a 780, it could drop around 620. If your credit score was 680, it could drop around 575. Far below the necessary 680 needed to obtain credit to purchase a home. But there are still other incentives of trying to Short Sale. If you need a credit score of 680 and yours is 575 or 595, you will not be able to obtain the necessary credit from either result. Often filing a Bankruptcy in St. Johns County (using a Jacksonville Bankruptcy Lawyer) can allow you to have a higher credit score sooner than with either a short sale or a foreclosure. In some cases, a short sale in St. Johns County can be structured to allow you to obtain a waiver of deficiency but most banks are not offering this as an option. If you are foreclosed upon, you may have to wait 7 years before you can obtain a new government backed mortgage. Often, lenders will allow those who obtained a Short Sale or a bankruptcy to re-purchase a home much sooner.

A St. Johns County Foreclosure Defense Attorney may be able to help you decide if a Short Sale, or another loss mitigation option is right for you.

Enforcement of Safety Laws Would Lessen Personal Injuries

Thu, 24 May 2012 13:21:12 +0000

According to a recent study by the Johns Hopkins Center for Injury Research, if states, including Florida, monitored and forced compliance with safety laws, they could prevent millions of unnecessary personal injuries annually.

As personal injury attorneys representing victims of accidents in the Palm Beaches, Ft. Lauderdale and Miami, we know too well that the leading cause of wrongful deaths of people age one to 40 years are accidental injuries. Yet amazingly many states, including Florida, refuse to pass common sense laws which would prevent injuries, save lives and lower overall health care costs.

While Florida does have mandatory seat-belt laws, which are proven to prevent about 12,000 annual car accident wrongful deaths; our legislature passed a law allowing motorcycle riders not to wear a helmet. Considering that helmets prevent approximately 1,5000 lives annually, and given the state's obligation to pay the enormous medical bills incurred by those who sustain brain injuries from head trauma, such lack of legislative action is certainly reckless .

Not all blame falls upon the state, as national injury prevention funding has decreased almost twenty five percent over the last five years. We can only hope that the Florida Legislature will have the fortitude to disregard lobbyists and take aggressive action to pass and enforce needed safety laws.