Heyman Law Blog

This section of my website is to keep you abreast of changes to law, specifically Florida law, as it may apply to you.

Florida PIP Law Reform: Consumers Lose Again

Posted By on April 29, 2012

After repeated lobbying of the Florida Legislature for the past four or five years, the insurance industry finally got the “PIP reform” bill they wanted passed. The resulting legislation will undoubtedly be cause for celebration in the boardrooms of “Big Insurance” at the expense of Florida’s insurance consumers. That’s you and me. No one who has been following this controversy should be surprised.

For years, the mantra of the insurance industry has been that PIP generated fraud has cost the consumer millions in premium increases that could easily be avoided if reforms were enacted. Okay, sounds good. Good enough that the Senate version of the legislation contained a mandatory 25% “No-Fault” premium reduction in exchange for tightening PIP benefit payments. Apparently not good enough for the Florida House, which bullied the Senate into deleting this provision from the final draft of the bill.

The bill now sitting on Governor Scott’s desk is basically a codified “wish list” written by State Farm, Allstate, and their fellow insurance industry giants. For example:

 

* PIP benefits will be denied to accident victims who do not seek
treatment within 14 days of the accident;
* The mandatory $10,000.00 in PIP benefits are only provided
to those who are diagnosed with an “emergency condition” by
an MD or DO, or receive treatment at a hospital emergency
room;
* Chiropractors, long the bane of insurers, are prohibited from
diagnosing an “EMC”; should the injured person seek treatment
from a chiropractor, their PIP benefits are capped at $2500.00.
* Massage therapy and acupuncture ( therapies which have long
been accepted by the entire medical community) are NOT
covered by available PIP benefits.
* Greater use of mandatory physical exams by the insurance
company doctors, who routinely disallow further treatment
to truly injured patients.

What’s the bottom line? Less coverage and benefits for the same or higher premiums, greater ammunition for the insurer to deny necessary treatment, and NO reduction of the “rampant” fraud that was used to justify the legislation in the first place. No one should oppose any effective provisions to eliminate “staged” accidents and put unscrupulous health care providers out of business. The problem is, the public has been sold a new PIP law under the guise of just that, while the reality is that the average consumer has just been victimized once more at the urging of the “Good Hands” people and their cronys over lobster and steak dinners with their elected officials  in Tallahassee.

The Tayvon Martin Investigation: protesters want “Ready, Fire, Aim” approach

Posted By on March 28, 2012

One cannot open the newspaper or turn on the television without hearing of the latest nationwide protests concerning the status of the investigation involving the shooting death of Tayvon Martin in Sanford, Florida. Most media commentators and every community activist, including both Jesse Jackson and Al Sharpton have widely criticized the local authorities for not having immediately arrested the shooter, George Zimmerman, after the incident occurred. Some pundits have even gone so far as to advocate an arrest merely to quell the rising demonstrations and prevent further violence.

Beautiful. So much for constitutional protections, due process and the presumption of innocence. Funny thing about the facts. They tend to come to light sooner or later and many times reveal that the individuals who initially protest the loudest, have done so not from an abiding desire to seek justice, but rather to garner a platform from which they can further an underlying agenda.

Since the initial outcry, both a special State prosecutor and the US. Attorney’s office have become involved in the investigation. While the incident was first described as one where an out- of- control, racist vigilante brutally gunned down an innocent black youth guilty of merely wearing a “hoodie” in a gated community, we now know that Mr. Zimmerman told the police that while he had initially pursued Tayvon Martin because of his “suspicious” actions in the neighborhood, he broke off any further contact with him and was thereafter attacked by Martin as he tried to enter his vehicle. This version of the events is bolstered by Zimmerman’s broken nose, scratches and bruising on the back of his head, and blood and grass stains on his shirt. This evidence alone was sufficient to create serious questions as to whether probable cause existed to arrest Zimmerman for any crime, especially in light of Florida’s “Stand Your Ground” Law which has been in effect since 2005.

While Tayvon Martin has been portrayed as an angelic  6’3″ young man known to his friends as “Slimm”, we now know that he was spending the week at his father’s girlfriend’s home while under suspension from school for placing obscene graffitti upon school property. At that time he was also found in possession of numerous pieces of jewelry, including wedding bands, women’s diamond earrings and watches. He apparently could not explain how he had obtained those items, nor why he also possessed a screwdriver. These facts do not directly affect the circumstances of the shooting, however do speak volumes concerning how the media and others have “sanitized” young Mr. Martin to bolster his perceived victimization.

This case has also once again brought Florida’s “Stand Your Ground” law into question. Calls for its repeal have already been made by Democrats in the Florida Legislature. Prior to 2005, Florida followed the generally accepted common law principle that, unless an individual was located in their own home, they had a duty to retreat from the threat of an imminent attack, unless by retreating the danger would be increased. In 2005, the Florida Legislature enacted Section 776.012 which removed the requirement to retreat in any circumstances where a person reasonably believes force is necessary to prevent imminent death or great bodily harm to themselves or to another person. As with any statutory interpretation, however, “the devil is in the details”. What constitutes a “reasonable” belief of death or great bodily harm will always be a question of fact for  police investigators, and if necessary, the jury. In the Martin / Zimmerman investigation, given the evidence known to the police on the date of the incident, can there be any question that serious factual issues were presented which still remain unclear whether an arrest was made or not?

Listen, the loss of any human life by violent means is tragic, especially if that life is a young one just reaching adulthood. But the death of Tayvon Martin alone cannot justify prosecution of the Mr. Zimmerman as the shooter. Rest assured that the overlapping investigations being conducted by both State and Federal agencies will uncover any and all facts surrounding the shooting. If, after such investigation, Mr. Zimmerman is  prosecuted, so be it. In the interim, demonstrators, both sincere or otherwise, and their “activist’ leaders should shut down the “Kangaroo Court” in which Mr. Zimmerman has already been convicted.

 

New Florida Legislative attack on Medical Malpractice Claims

Posted By on February 15, 2012

The Florida Legislature has embraced many attempts in the past to unduly restrict the rights of potential claimants in medical malpractice cases. Caps on damages, a worthless pre-suit screening process and an abbreviated Statute of Limitations are but a few that have been successfully enacted into Florida state law. During its current session, the Senate Health Regulation Committee has proposed additional measures to both limit damages and deny claimants the right to have a jury determine the outcome of their cases.

Specifically, Senate Bill 1506 permits doctors to require patients to agree to submit any potential negligence claims to arbitration as a prerequisite to obtaining medical care. Through the use of these agreements, doctors will be able to both choose the forum and cap potential economic and non-economic ( ie.” pain and suffering” ) for any future malpractice claims. This provision could also potentially be used to coerce an existing patient to unknowingly accept such limitations by a doctor, hospital or other medical provider who is already aware they have rendered negligent treatment to that patient. While the vast majority of medical care providers would never contemplate such sinister actions, we can assume that some would.Expect this provision to be hidden in the fine print in most, if not all pre-treatment paperwork which new and existing patients will be given to sign before they receive treatment from doctors and hospitals.

In addition SB 1506 would require that to establish negligence for failure to order additional diagnostic testing ( MRI’s, CT Scans, ultrasound, blood testing, etc) the patient would be required to establish negligence by “clear and convincing” evidence, rather than the usual civil proof standard which is by a “preponderance” of the evidence. Statistics show that there has been no “explosion” of malpractice claims which merits the significant changes now being discussed in Tallahassee. In fact,a majority of cases that do proceed to trial result in defense verdicts. Unfortunately, that has not stopped the vigorous lobbying by medical groups to further erode the rights of patients with legitimate injury claims.

Negligent Security – Landlord liable regardless of terms of rental agreement

Posted By on August 17, 2011

Most of us have rented an apartment at one time or another in our lives. Understandably, the focus of such agreements is upon the length of the lease, the monthly rent amount, and the required security deposit. Often hidden within the “fine print” however, are provisions which attempt to limit or altogether waive the landlord’s liability for personal injuries or property damage which may occur on the premises. They usually read as follows:

“We do not provide and have no duty to provide security services for your protection or for the protection of your property. You must look solely to the public police for such protection. We will not be liable for failure to provide security services to protect you, your family, or others, or your property from the criminal or wrongful acts of our employees, agents or others.”

Fortunately, under Florida law, such language is not worth the paper it is written on. Pursuant to Section 83.47 Florida Statutes, “a provision in a rental agreement is void and unenforceable to the extent that it purports to limit or preclude any liability of the landlord to the tenant arising under law”.

In addition, Section 83.51 Florida Statutes requires the landlord to maintain premises in accordance with applicable building, housing and health codes, which include proper maintenance of the exterior doors and windows.

The result? We all hope that misfortune does not occur while living in rental apartments. However, if a burglary occurs as a result of improperly maintained doors or windows, or if a tenant is attacked at an apartment complex where the landlord knew of prior security issues and took no remedial actions, Florida law puts the responsibility where it belongs, regardless of the fine print hidden in the rental agreement.

Florida Drug Laws Ruled Unconstitutional

Posted By on July 29, 2011

On July 28,2011, Federal Judge Mary Scriven of the Middle District of Florida ruled, in the case of Shelton v. Florida Department of Corrections, that all Florida state laws prohibiting the sale use and/or possession of illegal drugs per Florida Statute 893 are unconstitutional.

Crimes are classified in two basic categories: “general” intent and “specific” intent crimes. General intent crimes ( also referred to as “strict liability” crimes) presume, by their very nature, that the accused knew that their actions were illegal. Assault, Battery and DUI are good examples of general intent crimes. In contrast, “specific” intent crimes require proof that the accused knew that their actions were illegal ( also known as”mens rea” ) and intentionally committed the offense. Theft, sexual battery and premeditated murder are all specific intent crimes.

Prior to Judge Scriven’s ruling, all drug offenses in Florida were classified as general intent crimes. The state merely needed to prove that the possession, sale or delivery occurred. Under this scenario, a person could be successfully prosecuted for possession of drugs which had been placed in their clothing, backpack or motor vehicle without their knowledge. Hypothetically, a Federal Express delivery man could be prosecuted for (unknowingly) delivering illegal drugs which had been shipped by Fedex.

Prior to the decision in Shelton v Department of Corrections, Florida was the only state in the nation to expressly eliminate intent as an element of a drug offense. Quite frankly, it is about time that Florida has been brought in line with the rest of the nation’s drug laws. The State should have to affirmatively prove that the accused knew that he or she possessed, sold or delivered an illegal drug.

In the long term I do not see any earth shaking changes to the manner in which drug offenses are investigated, prosecuted or defended. In most cases, there should be ample evidence to prove knowledge and intent. What will hopefully change is that in cases where an accused is truly an unknowing victim of circumstances involving illegal drugs, the State will be less apt to file charges and force the accused to somehow “prove” themselves innocent.

However, for the short term, State Court judges will now be forced to grapple with the effect of the Federal Court’s ruling in Shelton. The State of Florida will almost certainly appeal, thereby postponing any immediate effects upon pending cases. However, if affirmed on appeal, you should expect a flood of defense motions to both dismiss pending cases and revisit cases which were previously disposed of under Chapter 893 as it now exists.

While it probably will not happen without a fight, the Florida legislature will eventually have to re-write Chapter 893 to include the element of intent in all drug offenses. The companion (and perhaps larger ) issue will be whether the legislature decides that the changes should apply retroactively to closed cases. I’m guessing no – a decision which will only spur additional legal attacks.

Regardless of how the future of drug law enforcement is ultimately resolved by the courts, should you or a loved one be faced with defending against a criminal drug charge in the Tampa Bay area, please do not hesitate to give me a call at the Heyman Law Firm at 727-822-3700 to schedule a no charge consultation at our main offices in St Petersburg.

Florida Law and Debtors Rights or “I’m uninsured, what’s protected” ?

Posted By on April 23, 2011

In a previous post, I outlined the types of available automobile insurance and stressed the necessity of obtaining as much coverage as financially possible to insure that medical expenses and lost wages can be recovered in the event of injury as a result of an accident.

As a corollary to that advice, it is just as critical to carry as much liability coverage for damage to others should injury result from one’s own negligence or that of a permissive driver operating a borrowed motor vehicle.

Unfortunately, as a result of the financial inability to purchase sufficient coverage, (or just plain bad advice of an insurance agent), I have had to counsel frantic clients who are suddenly faced with a liability claim and discover that they have little or no insurance to protect their assets. Under these circumstances the primary question is. “what’s safe and what’s in jeopardy of being taken”?

Under Florida law there are protections granted to certain property and assets against seizure from third parties who have obtained a judgment as a result of a lawsuit. The largest, and in most instances the most important, is the protection granted to a person’s residence. If the home is owned by the person against whom a judgment is obtained, that residence is exempt from the claims of all creditors except for a bank or finance company which may hold a mortgage on the property.

This “Homestead Exemption” is guaranteed by the Florida Constitution, and was in large part the motivation behind O.J. Simpson’s curious relocation to Florida following the multimillion dollar judgment assessed against him as a result of the civil trial based upon his murder charges.As of this date, there is no limit to the value of the homestead property which can be protected, but do not be surprised if in the future a “cap” is placed upon the protected amount.

The Florida Constitution also provides protection for personal property up to $1,000.00. This can include cash, investments or any other personal property which is owned by an individual. Property jointly owned by a married couple is protected if the judgment is entered against only one spouse.

Similarly, any motor vehicle owned by the debtor is protected up to $1,000.00 ( obviously not including a bank or finance company which extended a loan to purchase the vehicle).

While a creditor may attempt to seize (or “garnish”) wages, a debtor’s income is not subject to garnishment unless it exceeds $500.00 per week. Social Security, Disability, Unemployment Compensation, Worker’s Compensation and retirement benefits are also exempt from the claims of creditors.

Obviously the rationale of these exemptions are to prevent the debtor having limited means from being rendered penniless. The moral of the story remains the same – while Florida law does protect individuals from the poorhouse, the assets which are protected can provide only a n extremely basic existence. In order to properly protect those assets which provide a meaningful lifestyle, please be sure to maintain insurance coverage equal to the value of those assets.

Should you have any questions regarding the types of coverage you should seek from a reputable insurance provider, please contact me at the Heyman Law Firm at 727-822-3700 or through this website.

Florida’s Dangerous Instrumentality Doctrine and the Graves Amendment (or the “Federal Car Rental Business Relief” Act )

Posted By on March 21, 2011

As I discussed in an earlier post, motor vehicles have previously been deemed to be a “dangerous instrumentality” by numerous previous rulings of the Florida courts. As as result, I issued the warning that private automobile owners must be particularly careful when entrusting their vehicle to another driver, in that the owner can be held liable for any injuries caused to third parties by the negligence of the permissive driver.

Until recently, the Courts applied the same principle to car rental businesses which leased vehicles to the public. see: Susco Car Rental System v. Leonard, 112 So. 2d 832 ( Fla 1959).In more recent times, the Florida Legislature placed a monetary cap on the liability of businesses which offered short-term ( less than one year) car leases to $100,000 per person and $300,000 per incident. Property damage liability was also limited to $50,000.See: Florida Statute 324.021(9)(b).

No doubt as a result of extensive lobbying efforts by Avis, Hertz, Enterprise and others in Washington, D.C., Congress passed the Graves Amendment in 2005, which overruled (or preempted) all state laws which addressed the potential vicarious liability of car rental businesses. While there have been numerous attempts by Florida plaintiffs’ attorneys to convince the Courts to at least narrow the application of the Graves Amendment, in Florida, and throughout the United States, vicarious liability of auto rental companies for damages caused by the negligent operation of their vehicles has been abolished.

Is this a good thing or a bad thing? Obviously it depends upon one’s perspective. To the rental car business, the Graves Amendment has removed a huge source of potential liability. I can only assume that prior to the passage of this law, such companies included the financial cost of such exposure in the price of the rental agreement. Liberated from such liability, one would logically assume that Avis, Hertz and the others would therefore be able to reduce their rates. Don’t bet on it. The only rates that have probably been lowered are the lobbying costs spent in Congress.

In order to protect the public, I would propose that no driver should be able to rent a vehicle unless they maintain the same $100,000 / $300,000 liability coverage that was previously imposed upon the car rental businesses by Florida law. Don’t expect the same lobbyists to line up behind that proposal. Bad for business, don’t you know. Much worse for citizens in St. Petersburg and the surrounding Tampa Bay area who injured by a negligent driver in a rental vehicle who have been wronged but may no longer have a proper remedy.

Absent an unanticipated dramatic reversal in the Federal law, I can only stress once again that in Florida, please carry as much uninsured/underinsured motorist coverage as you can afford. Should you have any questions about these or any other auto coverage issues, please feel free to contact me at the Heyman Law Firm, PA either at 727-822-3700 or through this website.

Motorcycle insurance in Florida: Not Required, But Don’t Hit the Road Without it

Posted By on February 21, 2011

Florida is blessed with beautiful weather almost year round. That is one reason why Florida is a great place to own and operate a motorcycle. Unfortunately, much of Florida, and particularly St Petersburg and Pinellas County where I practice injury law, has become very densely populated, and as a result, the roadways are much more hazardous to motorcyclists than those in more rural areas.

Regardless of that fact, the Florida Legislature has not required motorcycle operators to obtain any insurance as a prerequisite to registering their vehicle. Personal Injury Protection, or “PIP” coverage is not available for any vehicle having less than 4 wheels. Yes, if the motorcycle is financed through a bank, the lending institution will probably require insurance coverage for theft and/or damage to the bike.

As a corollary to the 2000 repeal of the helmet law, should a rider foolishly decide to ride without a helmet, he must carry proof of $10,000.00 in medical insurance – literally a “drop in the bucket” should an accident occur. And while coverage for damage to property or injuries to third parties is not required, should the motorcycle operator be found at fault in an accident, they should expect a lawsuit which will threaten their personal assets.

Even if the driver has medical coverage with a major medical provider ( such as Blue Cross, United, Aetna,etc. ), they should review their policy to insure that there are no exclusions for injuries caused by “dangerous activities”, such as driving a motorcycle.

The bottom line is that while motorcycles are less expensive and more economical to operate than a car, a portion of those savings should be used to protect the driver from personal liability and to provide medical coverage should an accident occur which results in medical bills which could cause financial ruin. As a personal injury attorney in St. Petersburg and Pinellas County I have unfortunately been the bearer of bad news to clients who have been injured by uninsured motorists and find they have no other coverage to look to for their medical treatment and lost wages.

As with any potentially dangerous activity ( of which driving the roads of St. Petersburg is near the top of the list!) enjoy the experience, but always prepare for the unexpected. My advice regarding medical and liability insurance?? Don’t hit the road without it!

No Contact Orders : Not a “Two Way” Street

Posted By on January 31, 2011

In my criminal practice, I have been hired to represent clients who have been charged with both misdemeanor and felony domestic violence charges. In every case , regardless of the merits of the “victim’s” allegations, Florida law prohibits the Defendant from having any contact with the victim, except through pretrial discovery pursuant to the Florida Rules of Criminal Procedure. Florida Statute 903.047.

In my career as both a prosecutor and defense attorney, I have been faced with numerous situations where this prohibition has been disregarded by the victim who, after the anger and shock of the spouse’s arrest has worn off, wants to connect with the Defendant for financial, emotional or other reasons.

To all my clients who ask my advice in this situation, I tell them in no uncertain terms, DON’T DO IT. The simple fact is that the alleged victim cannot unilaterally ignore the judge’s order any more than the accused can. The difference is, while the victim’s actions might be deemed ill-advised, the Defendant, if upon feeling enboldened by the spouse’s actions, maintains further contact, he or she could wind up back in jail with no bond.

Once a no contact order is entered, it can only be rescinded by the assigned judge. This is easily accomplished by scheduling a hearing where the victim must appear and state under oath that he or she is not in fear of the Defendant and wants to reinitiate contact.

One more thing – even if the judge does permit contact, the State Attorney has the final say as to whether the criminal case will continue. As a practical matter, I usually ask the victim at the contact hearing whether he or she still wishes to prosecute the spouse. A “no” answer is, under most circumstances, persuasive enough to convince the State to dismiss the case.

If you have a pending domestic violence charge, understand that even if the spouse makes contact by telephone, texting or in person, you must abide by the no contact provision unless removed by court order.

Medical Malpractice Cases in Florida: Rules you need to know

Posted By on December 16, 2010

In order to sue for breach of contract, for injuries from an automobile accident or a slip and fall, the plaintiff need only file a complaint in the proper jurisdiction and pay the necessary filing fee. ($400.00 at this time). However, in order to sue a doctor , hospital or other medical care provider, there are specific prerequisites ( some may call hurdles) which must be met in order to even file a lawsuit for medical malpractice in Florida.

The first difference between a medical malpractice case and other negligence based claims concerns the applicable Statute of Limitations. Florida Statute 775 mandates that a professional malpractice lawsuit must be commenced within 2 years of the negligent act upon which the lawsuit is based.

Since in many circumstances the commission of the negligent act is not immediately discovered, the statute provides that the “clock” does not start running until the act was known or should have been known by the patient, but in any circumstance, the lawsuit must be commenced within 4 years of the negligent act.

Florida Statute 766 provides that once the plaintiff decides to proceed with a lawsuit, he or she must properly investigate their potential case, obtain the sworn expert opinion of a properly qualified doctor that negligence was present and caused injury, and then send written notice to the prospective defendant/doctor of the plaintiff’s intention to initiate litigation.

Once the Notice of Intent to Litigate is received, the defendant / doctor has 90 days to investigate the claim, take discovery ( which may include requiring the physical examination of the claimant ) and either offer to negotiate a settlement or deny the claim. If the claim is denied, the plaintiff has 60 days from the denial, or the end of the 2 year statutory period ( whichever is later) to file suit.

In theory, this procedure was thought to promote expeditious settlements of cases where liability is clear and the damages are easily calculated. In practice, most claims are merely delayed 90 days in order to comply with the statutory pre-suit requirements so that a lawsuit can thereafter be filed.. In very few cases have insurance carriers followed the spirit of the statute and attempted to resolve legitimate claims in good faith.

The moral of the story: should you or a loved one have been harmed as a result of suspected negligent medical treatment, contact an attorney who specializes in malpractice cases immediately or else risk losing forever the right to recover damages.