For the purposes of this discussion we are going to assume that we are talking about Florida state courts. The rules and timelines in federal and other special courts can be quite different.  First, you need to determine if you are sued. Letters from collection agencies or attorneys demanding payment or some action are not lawsuits. The first thing that will happen when you are sued is that a document called a complaint will be filed with the court. At this point, you probably will not know it has happened unless you check the clerk’s records online everyday. In addition, a document called a summons attached to the complaint will demand you serve written defenses within 20 days after service of the summons upon you.  Generally, the summons and a copy of the complaint must be served upon you in person.  However, anyone over 16 that resides with you can be properly served on your behalf.  If you find out that someone is trying to serve you, trying to duck the service and ignoring the lawsuit may not work. In some instances, service can be made by other means such as publication in a newspaper. If so, a judgment can be entered against you without your knowledge.

A summons will generally instruct you to file written defenses with the clerk of the court and send a copy to the Plaintiff or his attorney within 20 days.  The 20 days start the day after service and don’t exclude weekends and holidays.  However, you must read the summons carefully, as there are special types of summons that could have shorter time periods, a demand that you show cause why you filed certain documents in the public record or ask you to show up for a hearing– as is required in small claims court. We will discuss small claims court procedures a little later in this blog.

A written defense can be in the form of a document called an answer. This is merely admitting or denying the allegations in the complaint.  You can also allege what are called affirmative defenses at the end of your answer. These are defenses that you can raise even assuming that the allegations against you are true.  Some of these affirmative defenses can be considered waived if not immediately pled.  Another possible written response if a document called a motion to dismiss. This can be done when the complaint does not state a cause of action or other technical defense assuming that the allegations in the complaint are true.  Almost always, this motion to dismiss will need to be filed and served as your first response. Otherwise, you may be deemed to have waived your grounds to dismiss by merely filing an answer and affirmative defenses.

In small claims court, the summons will have a court date and time for a pre-trial conference.  Small claims cases involve disputes no more than $5,000.00.  A written defense is not required to be filed with the court.  Yet, it is very important to show up on time for the pre-trial conference.   Otherwise, a default will be entered against you that will eventually be turned into a final judgment without further notice to you. In some counties, the judge will discuss the case with the parties and advise them of the procedures of the court and consequences of certain actions. Other counties will send the parties directly to a mediation conference. Mediation is a process where someone called a mediator will meet with the parties to see if an acceptable compromise can be accomplished.  In any event, the first hearing is not the trial. So, don’t bring witnesses or expect to present evidence.

If you are being sued, it is recommended that you consult with an experienced litigation attorney in Orlando immediately after being served a summons.  This attorney can provide guidance and file a proper response that will preserve your rights and defenses.  If tempted to go it alone, keep in mind that if you are an officer or managing member of a defendant legal entity such as a corporation or limited liability company, court rules require that it be represented by an attorney, unless the matter is in small claims court. A non-attorney’s papers filed on behalf of such an entity will be stricken by the court.

– Brian Gillis, Esq., is an Orlando litigation attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  He welcomes questions and comments regarding the above and can be reached at bgillis@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement.

An Independent Medical Examination is not Independent.  The doctor that performs Independent Medical Examinations typically works for a company that has been hired by your automobile insurance company.  The Independent Medical Exam is not intended for treatment.  The purpose of the exam is to determine whether your automobile insurance company has to pay for your future medical treatment. If the doctor performing the Independent Medical Examination determines that you no longer need a certain type of medical care, your insurance company will stop paying for that medical care.  For example, if the Independent Medical Examination doctor determines that you no longer need chiropractic care, your automobile insurance company will stop paying for chiropractic care.

WHAT DO I DO IF MY AUTOMOBILE INSURER WANTS ME TO ATTEND AN INDEPENDENT MEDICAL EXAMINATION?

Do not ignore your insurance company’s request for an Independent Medical Examination.  You have to attend the Independent Medical Examination.  If you do not attend the Independent Medical Examination, you will be in breach of your insurance contract and your insurance company will refuse to pay for any future medical treatment.  Once you receive the request for the Independent Medical Examination, notify your attorney and your treating physician.  Your attorney may or may not want to be present for the Independent Medical Examination.  Schedule an appointment with your treating physician for the same day as your Independent Medical Examination.  Bring a notebook to your appointment.  In your notebook, note the time that you arrive, the time you spend in the waiting room, and the time that Independent Medical Examination doctor actually spends examining you.

You should be courteous to the Independent Medical Examination doctor and the doctor’s staff. Fill out all paperwork honestly.  During the examination, the Independent Medical Examination doctor will ask you questions.  Answer the Independent Medical Examination doctor’s questions honestly, but do not volunteer information.    Do not confuse the role of the Independent Medical Examination Doctor with your treating physician.  The Independent Medical Examination Doctor is not there to assist you.  The Independent Medical Examination doctor assists the automobile insurer.

WHAT HAPPENS AFTER THE INDEPENDENT MEDICAL EXAMINATION?

After your Independent Medical Examination, the doctor will generate an Independent Medical Examination report and submit the report to your automobile insurer.  The Independent Medical Examination report will either state that the doctor believes that you require additional treatment, or it will state that further treatment is not necessary.  Usually, the Independent Medical Examination report concludes that further treatment is not needed.  If the Independent Medical Examination concludes that further treatment is not necessary, your automobile insurance company will send you a letter advising you that your insurance company will no longer pay for certain types of treatment.

WHAT DO I DO IF MY AUTOMBILE INSURER REFUSES TO PAY FOR FUTURE MEDICAL BENEFITS BASED ON AN INDEPENDENT MEDICAL EXAMINATION REPORT?

Do not stop your medical treatment.  Advise your attorney and treating physician that your insurer will not pay for certain medical treatment based upon an Independent Medical Examination Report.  Ask your treating physician to send a letter to the automobile insurer disputing the results of the Independent Medical Examination.  This letter must discuss the future treatment that your treating physician believes is medically necessary to treat your injuries.  Continue to treat with your treating physician.  The first time that your automobile insurer denies a bill based upon the results of the Independent Medical Examination, either you or your treating physician should contact an attorney to pursue payment of your doctor’s bill.  Bogin, Munns & Munns, P.A. has attorneys that specialize in resolving personal injury disputes with insurance companies.

CONCLUSION

You have to go to your Independent Medical Examination.  You do not have to accept the results of the Independent Medical Examination.  Your treating physician has been examining and treating you over a period of time.  Your treating physician, not a doctor that examined you once, is in the best position to determine medical necessity. If your insurer denies your medical bills based upon an Independent Medical Examination, challenge the denial.  Do not impede your recovery by stopping your medical treatment.

– Aaryn Fuller, Esq., is an experienced personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Ms. Fuller works out of the Orlando office of the firm and welcomes questions and comments regarding the above and can be reached at afuller@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

I. AT THE SCENE

If you are on our web page it is probably too late and you have already had an accident, but just in case here is what you should remember when you are in a car crash.

First – always consider safety first.  You are NOT required to leave the vehicles in the roadway, especially if they are both drivable and there are no deaths or grossly serious bodily injuries.  Move them off to the side or a close parking lot.

Second – make sure you and everyone at the scene is ok.  If you need medical assistance, or think you or someone may need medical help, call 911 right away.  Be sure to tell the operator that someone is injured.

Third – do not admit the accident was your fault.  Perhaps it was, and it may be appropriate to admit that later, but at this point your adrenaline is flowing, and you are not in the best state of mind to make decisions that will have lasting effects.

Fourth – If there is over $500 in damage, or someone is injured, you MUST report the accident under Florida Law.

Fifth – If you have a camera (a cell phone camera will do if that is all you have), take pictures of the other cars in the accident.  You can take pictures of yours as well, but you will always have access to that, you may not ever see their car again.  Take pictures of the road as well, especially if there is debris or skid marks, be sure to take photos of those.  You can never have too many photos, and in today’s world of digital photos they are basically free.

Sixth – get the names, addresses, and phone numbers of any witnesses.  Do NOT rely upon the officer to put this information in the report, even if he/she speaks with the witness.  More often than not, the name does not appear in the report.

Remember, if you are injured, attending to your injuries is primary.  Have a friend or relative help you with getting the information above.

II.        AT THE HOSPITAL or DOCTOR’S OFFICE

Whether you go to the hospital the day of the accident, which you should if you are injured, or a doctor a day or more later, there is one rule you need to remember.  TELL THE DOCTOR EVERYTHING.

This may sound obvious, but in particular you need to be sure to relate the following with as much accuracy as possible.

1. All of your current injuries that you have.  Oftentimes people have a really bad injury and will not mention the less bothersome problems to the doctor in hopes they will just go away.  Sometimes they do, and sometimes they don’t.  When they don’t, and the complaint is not in the original records, the other side will claim the injury or complaint is not from the accident since there was no record of it on the initial visit.  You can avoid this by being thorough, and making sure your doctors and nurses write down everything you tell them about.
2. Be completely forthcoming about your prior problems, especially with regard to the injuries from the accident.  If the accident caused you neck pain, but you also have a history of going to the doctor for neck pain, be sure the doctor you are seeing knows that.  Otherwise he will later say the neck pain is from the accident and when asked whether he knew you had a history of neck pain, he will say no, which will cause his opinion to be questioned.  However, if he can say he considered all of your prior medical problems and knew of them, and still believes this accident caused an injury, he is much more credible to a jury.
3. Follow the directions they give you.  When you are discharged you will likely be given directions.  It may be for bed rest.  It may be to get a prescription, or it may be to see another doctor.  If you don’t follow those directions you will later be questioned why you did not, and was it because you were not really hurt.  The only exception to this might be to see a different doctor than the one they refer you to if you have a doctor you know and trust.

Mark Cornelius, Esq., is an experienced personal injury attorney and shareholder with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mr. Cornelius works out of the Orlando office of the firm and welcomes questions and comments regarding the above and can be reached at mark@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

Many websites promise to let you make your own Will quickly and easily online, and then download it for printing.  Is this a good idea?  Do you know enough about Wills, Trusts and Probate to know what your legal options are?  Do you know how to sign your Will properly so that it will be legally enforceable and easily probated without your witnesses having to testify after your death?

WILL BASICS

First, let us review some basics about Wills.  Your Will is a written document by which your estate can re-title your assets at your death. The Will lets you decide and list who gets what. You can give specific items to certain persons and you can choose who should receive your assets. You can leave your assets to companions, lovers, or partners, regardless of marriage; to foundations; or to noncitizens. You can specify alternate beneficiaries to inherit in the event the first person named in the Will dies before you.

Through a Will, you can leave property to minor children (whether your own or not) or grandchildren.  You can choose the best method to manage property left to a minor or young adult.  The Will may create a children’s trust or use the Uniform Transfers to Minors Act.

You can designate your children’s guardian.  In certain cases, you can state a case for the appointment of a personal guardian other than the child’s remaining natural parent to care for your minor children.

You can give away pets as well as funds to care for pets.  You cannot leave money or property directly to an animal because animals cannot legally own property.

You can exclude or disinherit relatives.  However, you cannot make an inheritance conditioned on the heir’s marriage or divorce, or on their change of religion.  Such conditions will be ignored by the Probate Court, and the heir will be entitled to the inheritance free of conditions. You also cannot, by Will, leave money for an illegal purpose or direct that something illegal be done.

A WILL DOES NOT CONTROL EVEYTHING

A Will does not control all your assets.  The Will does not leave proceeds of a life insurance policy to someone other than the beneficiary named in the policy. The same rule applies with regard to assets in a Living Trust, to pension plan or retirement benefits, and to bank or brokerage accounts with a trust designation. This is because you, by naming a beneficiary in each of these documents, have contractually disposed of that property already. These items are not subject to the Will (unless you name your Estate as the beneficiary).

HOW IS AN ESTATE PLAN DIFFERENT FROM A WILL?

An Estate Plan usually includes a Will but it is much more comprehensive, addressing far more than just the distributing your assets at death. It is a plan designed to transfer assets both during life and at death through such means as living trusts, testamentary trusts, life insurance contracts, and joint tenancies and other ownership documents. Documents possibly needed for a full Estate Plan include

• A Will
• Trust agreements
• Powers of attorney
• Deeds
• Beneficiary designation forms
• Retirement benefit elections
• Pay-on-death instructions
• A marital agreement
• A preneed guardian declaration
• A living Will
• A health care surrogate designation.

Your attorney can design your Estate Plan to help you accumulate assets economically and efficiently during your life.  Your Estate Plan will help to ensure that your lifetime needs are met (such as college tuition and retirement funding).  If taxes are a concern, your Estate Plan can transfer your assets both during life and at death to result in reduced income, estate, gift, and inheritance taxes, all within the framework of your objectives.

With an Estate Plan, your heirs can avoid Probate Court altogether.  You can also minimize losses from forced liquidation of property, and can maximize protection and flexibility afforded by trusts or other devices for beneficiaries. An Estate Plan can provide for a disadvantaged child, establish a scholarship fund for a grandchild, handle potential problems arising from a subsequent marriage when you have children from a first marriage, and arrange for charitable gifts.

Your attorney can determine and advise you if the Will document, by itself or in conjunction with a power of attorney and health care advance directives, will be sufficient to accomplish your objectives. If it appears to the attorney that a Will cannot adequately satisfy your present needs, your attorney can recommend other estate planning measures for you.

Using a licensed attorney to prepare your Estate Plan gives you peace of mind that your desires will be carried out with minimal stress and expense to your heirs.  If you live in Florida and would like to consult with an attorney regarding your estate planning alternatives, call Bogin, Munns & Munns, P.A. at (352) 332-7688 in Gainesville or (407) 578-1334 in Orlando.

– Zana Dupee, Esq., is an attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.   Mrs. Dupee works out of the Gainesville office of the firm and welcomes questions and comments regarding the above and can be reached at zdupee@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement.

Payment of Medical Expenses Resulting from a Motor Vehicle Accident

When someone is injured in an accident as a result of someone else’s negligence it is a traumatic event which can have a dramatic effect on the person’s entire life.  One has to contend with the injuries, the stress of losing time from work, the damage to ones vehicle, the medical care, the unknown effect these injuries will have on the individuals life and future, and if that wasn’t enough, the worry over the amount of medical expenses and how they will be paid.  An accident can be a truly life altering event.

Florida is a No-fault state, which means your own motor vehicle insurance policy covers your medical expenses in the event of a motor vehicle accident, regardless of fault.  Florida law provides that every owner or registrant of a motor vehicle purchase insurance which is to include Personal Injury Protection coverage or PIP.  Basic PIP coverage essentially pays for 80% of reasonable expenses for medically necessary care, 60% of lost wages, and $5,000 death benefit or the remainder of unused PIP benefits, whichever is less.  If you are a passenger and do not own a vehicle, then you would be covered under either a policy owned by a relative who lives with you or the vehicle owner/drivers policy.

Oftentimes PIP is inadequate to cover all of your medical expenses and then there the 20% balance for which one is personally responsible.  Many insurance policies offer supplemental products to cover these expenses.  Extended PIP or additional PIP increases the percentage PIP pays to 100%, however, it does not increase the aggregate limit.  Med Pay (Medical Payments Coverage) is designed to cover the 20% not paid by PIP as well as any amounts over the $10,000, up to the limit obtained.  This does increase the aggregate limits by the amounts obtained, e.g. $1,000, $2,000, etc. Be aware that most policies require that the insurer be reimbursed for any Med Pay payments made in the event there is a recovery for the injuries sustained.

Even with the supplemental coverage’s mentioned above; many times the medical expenses will exceed the monies available from the insurance.  Depending on the amount of medical expenses and the ability of the individual to pay, one may qualify for emergency Medicaid.  Most hospitals provide assistance in applying for this benefit or one can apply through the local Medicaid office.  Medicaid has a statutory right to be reimbursed for any benefits paid if there is a recovery for the injuries sustained.

Finally, the person at fault for the accident is responsible for the injuries caused as a result of their negligence.  As such, they must pay for all out of pocket expenses, which include medical bills, anything not paid by PIP or other insurance, any liens, and lost wages, among other damages.  In addition, in Florida if the threshold is met: significant and permanent loss of an important bodily function, permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement, significant and permanent scarring or disfigurement, or death; one can recover for pain, suffering, mental anguish, and inconvenience.

Though a motor vehicle accident is a traumatic and life changing event, it does not necessarily have to be a financial catastrophe.  There are a multitude of options available to help minimize the financial impact of an accident, which allows the individual to focus on their therapy and their health.

Franklin Domenech, Esq., is an experienced personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mr. Domenech works out of the Kissimmee office of the firm and welcomes questions and comments regarding the above and can be reached at fdomenech@boginmunns.com.

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

Why Carry Uninsured Motorist Coverage in Florida?

Top 10 reasons

1. 15% to 27% of drivers on the road in Florida are uninsured drivers.

2. Florida law does not require drivers to carry bodily liability coverage – meaning that Florida drivers are not required to carry insurance which pays for the personal injuries (medical expenses, lost wages and pain and suffering if you have suffered a permanent injury) they cause to others. Ironically, Florida law does require, however, that drivers carry property damage coverage to pay for the property damage they cause to your car or other property.

3. There is a very strong possibility that your medical bills, lost wages and pain and suffering incurred in an automobile accident caused by another person will not be paid if the person responsible for the accident did not carry bodily liability insurance and you did not carry UM coverage.

4. Florida laws are historically very “debtor friendly,” meaning that it is very difficult in Florida to execute a Judgement against an individual’s personal property. Unless a individual who has caused an accident has substantial personal assets, your claim for injuries is generally limited to any bodily liability insurance that individual possess, or your own UM coverage.

5. Your UM coverage protects you even if you are a passenger in another person’s vehicle or a pedestrian at the time of the accident.

6. UM coverage is not expensive and can more than pay for itself if you are injured by an uninsured driver. Contact your automobile insurance company for a quote.

7. In Florida, your UM coverage can be “stacked” – which means that the limits of your policy can be multiplied by the number of cars insured under your policy. For instance, if you carry $25,000.00 in UM coverage and insured three of your vehicles under your policy on the date of an accident, you should have a limit of $75,000 in UM coverage available. Make sure to ask your insurance company that your UM insurance be “stacked.”

8. Your UM coverage protects you when the auto accident is caused by a “hit and run” driver or the identity of the driver who caused the accident is otherwise unknown.

9. Your UM coverage protects you, and usually also the passengers in your vehicle, at the time of the accident, such as your children.

10. Your private health insurance only goes so far. If you are injured by the fault of an uninsured motorist/underinsured motorist and even if your medical expenses are covered by your own private health insurance ( which you may carry through your employer), if you are not covered by UM insurance, you will not be able to recover your lost wages and pain and suffering suffered in the crash.

Alida Darias, Esq., is an experienced personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Ms. Darias works out of the Clermont office of the firm and welcomes questions and comments regarding the above and can be reached at adarius@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.