In 2003, Florida was ranked number 4 among the 50 states with the worst fatal crash rate.  In 2008, 4 of the 10 deadliest hotspots for teen fatalities among the 50 largest metro areas were found in Florida.  In 2007, 306 15 to 19 year olds in Florida died in traffic crashes and 25,465 were injured.  About 42% of those killed were driving.

The Center for Disease Control reports that more than half of all teen car accidents occur on the weekend (Friday, Saturday and Sunday).  Furthermore, we know the causes for a teen’s increased risk of being involved in a crash.  Research shows that inexperience and immaturity combined with speed, drinking and driving, not wearing seat belts, distracted driving (cell phone use, loud music, other teen passengers, etc.), drowsy driving, nighttime driving, and other drug use contribute to this increased risk for our teenagers.

The statistics are harsh.  However, there are steps we as parents can take to minimize our teenagers’ risk of accident related injuries.  Suggested safety rules for teen drivers as provided by the NHTSA are:

• Absolutely no alcohol (no exceptions)
• Always buckle up (In Florida, it is the law!!)
• NO TALKING OR TEXTING while driving ( the risk of a crash or near crash is 23.2 times more likely when texting and reaction time is slowed by 35% when reading or writing a text … this applies to adults as well!!!) – Parents:  look into purchasing Apps available for your teens cell phones that prevent texting while driving)
• Curfew:  Car back in the driveway by 10 p.m. (and make sure there are real consequences when teens break curfew)
• Passengers:  No more than one at all times (this simple rule has saved many lives according to the NHTSA)

There are additional rules that save lives:  no speeding, not riding in a vehicle where the driver has been drinking, avoiding distractions like eating, changing the radio, applying make-up while driving.

Parents talk to your kids about the dangers of driving, stick to your rules and invest in technology to block texting while driving, because unfortunately, some kids won’t make it home.

– 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.

Your first and best way to select an attorney is to ask someone you know if they have ever used an attorney that they liked, and what is that person’s name and number.  Even better, if you know an attorney that cannot help you because they do not practice in the area you need, ask that attorney for a referral.  If your contacts are not attorneys themselves, or have not used an attorney, they may know someone that has.  In that case you should speak with that person that used the attorney personally to find out their experience.

Once you have found an attorney that comes recommended by someone you trust then you can do some basic research about them and their firm on the internet.  If you find that information is consistent with what you need, then it is time to set up an appointment with the attorney to see if they can help you.  Most personal injury lawyers in Orlando will not charge you a fee to meet with you if you have a case they can work on a contingency (that means they get a percentage of whatever you recover at the end of the case).  You should know that attorneys that bill by the hour will almost always charge you a fee to meet with you and that is because they do not work on contingency.

When you set up your appointment you should ask some questions.  First, inquire whether you will be meeting with the attorney personally or with someone on their staff.  It is perfectly fine to meet with their staff first in order to allow the meeting to be setup more quickly, but you should be able to also meet with an attorney soon and have any and all of your questions answered.  Second, find out what you should bring.  If you can, take photographs of the scene, injuries, and/or the car(s) involved (if an automobile crash) and give them to your attorney.  Also, any police report, incident report or other paperwork will be very useful to your attorney.  If you have seen a doctor, a card or bill with that doctor’s name and address is also important.

Once you are at your meeting, remember that what you tell your lawyer or his staff is privileged and so you should be completely honest.  Do not hold any information back.  Failing to tell your lawyer about prior injuries or accidents can severely affect how well the lawyer will be able to help you.  Additionally, if you think the accident may have been partially your fault, now is the time to tell the lawyer and ask.  The lawyer and his staff should take the time to find out not only about the accident you are seeing him for, but also any and all prior accidents you have had, your medical condition before the accident, and your medical condition after the accident.  He should also inquire about whether you have lost income as a result of the accident, and if so, where you have been working and how long, and how much you were making.  Finally the lawyer should ask about who is treating you for the injuries you sustained in this accident, and if you do not have a doctor, he can very likely help you find a doctor that can help you get better.

Many times people are very concerned about their cars and how they are going to get fixed, but that is usually not a big problem.  Insurance companies use some of the same tools you find on the internet to value your car, and you can search sites like, www.kellybluebook.com to find out if they are giving you a fair offer.  If you need the lawyer to help you with your property damage claim as well then you should be sure to tell him.

In summary, remember that you should always ask people you know and trust who they have used when selecting a personal injury lawyer.  Once you have done that you should learn what you can off the internet about that lawyer, and once you have decided who you want to use, be completely open and honest with that lawyer.

– 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.

Unbeknownst to you, your landlord has ceased paying the association assessments due to the landlord’s current financial status and the recession.  You are fully compliant and are not in default of any of your obligations under the terms of your lease with your landlord.  So, why should it matter to you that your landlord isn’t paying the association assessments?  Senate Bill 1196.

Senate Bill 1196 was recently signed into law and has a significant impact on tenants who lease properties governed by community associations.  This new law modified Florida Statutes §§ 718.116(11)  and 720.3085(8) to authorize a community association to demand that the tenant pay to the association all future monetary obligations related to the leased property if the landlord is delinquent in paying assessments due to the association.  The association’s demand for payment of the delinquent assessments from you is continuing in nature and only terminates if the association releases the tenant from said obligation or the tenant vacates the leased property.  The good news is that you would be entitled to receive a rent credit for all amounts paid to the association.  The bad news is that the association is empowered to sue you for eviction if you fail to timely pay the association the assessments when due.  The association, however, is not construed as your landlord and has no other duties to you.   Due to this new law, it is imperative that you consult with a competent real estate attorney to review your lease agreement to protect your rights in the event your landlord fails to timely pay its association assessments.

– Henry M. Cooper, Esq., is a shareholder and handles the residential real estate practice of 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 hcooper@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.

Civil litigation is risky; no matter how much you believe you are right, there is no such thing as a “slam dunk” case.  Civil litigation is adversarial – it is stressful, frustrating, and invasive, often requiring you to divulge otherwise private facts in a public forum.  Civil litigation is costly, not only in terms of the fees and costs paid to your attorney but also the loss of your own time spent in your lawyer’s office or in court.

As a result of these inherent risks and costs, often, neither party “wins” by continuing to litigate.   Rather, at the conclusion of a case, one party may receive a judgment that says he or she has the right to a certain amount of money from the other party.   The “winning” party, however, may have endured more stress and frustration and incurred more in fees, time and costs than the judgment is worth.   Further, the judgment that the “winning” party receives may not even be collectible.

Mediation is designed to avoid, as much as possible, these consequences.  Mediation is the process whereby the parties try to reach a middle ground through a voluntary agreement facilitated by a neutral party, the mediator.   At the mediation session, the mediator works with the parties to achieve an understanding of the factual and legal issues in dispute, and tries to help the parties agree to settle the dispute through understanding, acknowledgment, concession, and compromise.

Mediation is designed to be facilitative. Therefore, you must be prepared to discuss both the strengths and the weaknesses in your case (and yes, all cases have weaknesses) and listen to the other side with an open mind and an eye toward reaching consensus rather than furthering controversy.  Because mediation necessarily involves compromise, issues resolved through mediation usually result in one party receiving less than he or she thinks to be entitled to, whereas the other party is usually giving more than he or she thinks just.

Thus, while mediation may not make you “winner”, it will avoid the risk that you will be a “loser”.  Mediation puts you in control of your destiny; you decide what terms you can live with, not a judge or “jury of your peers” (who may have no more qualification to decide your case than possessing a driver’s license).  There is certainty in the result, and your risk of going forward is eliminated.  There is also the immeasurable value in putting a dispute behind you.

In summary, if you find yourself involved in litigation, consider opting for the “bird in hand” that may be reached through the mediation process.

– Nancy E. Brandt, Esq., manages the commercial litigation department of 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.  She welcomes questions and comments regarding the above and can be reached at nancyb@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 private cause of action originates from Florida Statute Section 381.004, which prohibits the disclosure of a patient’s HIV status without their consent. This statute applies to medical providers, employees of health facilities, insurance companies, and any other person or entity that has a “need to know” the results of the testing.  The legislative intent section contained in the statute states that in order to encourage persons to undergo HIV testing, they must have explicit protection against a disclosure of their HIV status without their consent.  The statute states, in pertinent part:

…[T]he identity of any person upon whom a test has been performed and test results are confidential…no person who has obtained or has knowledge of a test result pursuant to this section may disclose or be compelled to disclose…the results of such a test…

Up until 2007, a violation of this statute was handled within the confines of an administrative disciplinary action against a health care provider’s license.  However, the Florida Supreme Court, in the case of Florida Department of Corrections v. Abril, 969 So.2d 201 (Fla. 2007), clarified that a violation of this statute’s confidentiality provisions entitled the person whose privacy was violated to file a civil lawsuit and recover money damages directly from the violator.  The facts in the Abril case involved a nurse who had given unprotected CPR to a prison inmate.  A blood sample was sent to a laboratory for testing, and the positive results were faxed back to the nurse’s employer to an unsecured fax machine.  The results were read by a number of the nurse’s co-workers who had absolutely no business knowing her HIV status.  While the test was later determined to be a “false positive,” the nurse had endured unimaginable pain and suffering caused by the initial disclosure and she sued her employer. The Florida Supreme Court affirmed her right to bring such a lawsuit, holding:

…[A]n entity that negligently and unlawfully violates a patient’s right of confidentiality and privacy in disclosing the results of HIV testing…may be held responsible in a civil negligence action for damages caused to the patient…

In light of these protections, a person should feel confident that the State of Florida has taken definite steps to protect their HIV status against wrongful disclosure.

- Barry K. Baker, 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. Baker works out of the Melbourne office of the firm and welcomes questions and comments regarding the above and can be reached at bbaker@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.

According to the Justice Department under President George W. Bush, the number of federal tort (personal injury) cases resolved in U.S. District courts fell by 79 percent between 1985 and 2003.  In 1985, 3,600 tort trials were decided by a judge or jury in U.S. District Courts.  By 2003, the number fell to less than 800.[1] Furthermore, the most recent statistics from the Administration’s Bureau of Justice Statistics indicate that the number of tort trials at the state level has also decreased.[2]

Health care costs are undeniably rising, but medical malpractice litigation has nothing to do with it.  According to the Congressional Budget Office, medical malpractice claims amounted to less than 2 percent of overall health care spending.[3] The Government Accountability Office also found that malpractice cases have not widely affected access to health care.[4] Interestingly, the American Medical Association reports that the overall number of physicians is up more than 40 percent since 1990.  During this same period, the U.S. population increased by only 18 percent.[5] The insurance companies would have us believe that the due to out of control medical malpractice lawsuits, the number of emergency physicians, neurosurgeons, and OB/GYNs has decreased, but the facts simply do not support this conclusion.

Corporations, large and small, are all entitled to have profitable businesses.  Most do so without being negligent or engaging in misconduct.  However, when a customer or other person is injured as a result of a business’s negligence or misconduct, the injured party should continue to have the right to redress their claim, even if that requires a lawsuit to be filed.  Big corporations and insurance companies want to destroy the legal system so they can’t be held accountable.

Drug, oil, and insurance companies have tried to hide behind small business owners to accomplish this by claiming that these lawsuits should be thwarted or prohibited by law due to their adverse impact on small business.  However, multiple surveys have shown that lawsuits are simply not a major concern for small business owners.  In fact, a survey from the National Association of Manufacturers suggests that “lawsuit abuse” ranks at the bottom of concerns for manufacturers.[6] Further, a 2008 survey from National Federation of Independent Business had similar results, with “costs and frequency of lawsuits / threatened suits” ranking 65th on a list of small business owners’ worries.[7]

In reality a strong civil justice system allows deserving individuals to get justice and hold wrongdoers accountable.  Civil justice attorneys work to make sure all people have a fair chance through the legal system – even when it means taking on the most powerful corporations, including insurance companies.

Finally, those looking to destroy the civil justice, particularly insurance companies, have continually mocked Stella Liebeck and the McDonald’s coffee case.  Unfortunately, the actual facts of this case make it no laughing matter.  Ms. Liebeck’s injuries include third degree burns to her groin, inner thighs, and buttocks.  She was hospitalized for eight days, during which time she underwent skin grafting and surgical removal of tissue.  Ms. Liebeck sought to settle her claim with McDonald’s for $20,000, but they refused and as a result of that refusal to accept responsibility for what happened, a lawsuit was filed.  During the discovery phase of that lawsuit, McDonald’s eventually produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1993; some involving third degree burns similar to Ms. Liebeck.  This history documented McDonald’s knowledge about the extent and nature of this hazard.  Further, McDonald’s own quality assurance manager testified that a burn hazard exists with any food served above 140 degrees, but that nonetheless McDonald’s  coffee was kept at a temperature of 185 degrees in order to store larger quantities for a longer period of time and thus save McDonald’s money.

A jury awarded Ms. Liebeck $200,000 in compensatory damages, but reduced it to $160,000 because they found her 20 percent at fault for the spill.  The jury also awarded her $2.7 million in punitive damages, equal to two days of McDonald’s coffee sales.  The court eventually reduced this award to $480,000, even though the trial judge called McDonald’s conduct reckless, callous, and willful.  Jurors in this trial expressed similar sentiments in interviews after the trial.  Ms. Liebeck and McDonald’s eventually entered a post-verdict settlement.

In conclusion, do not fall for myths.  The facts are out there if you look.  If you receive emails or are told by friends about “crazy” lawsuits or verdicts, look them up.  More often than not the story has been exaggerated.  Our civil justice system is the best in the world in protecting consumers.  It has lead to safety reforms and innovations that have not only made our products safer, but have ultimately led to the creation of new jobs and a better civilization.  If you believe otherwise, all you have to do is to look at other countries.  We should not change our system.  We can strive to improve it, but when change is proposed look carefully at who most will profit with these changes and more times than not, it will be insurance companies.

– Scott Zirkle, Esq., is a 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. Zirkle welcomes questions and comments regarding the above and can be reached at szirkle@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.

[2] Civil Trial Cases and Verdicts in Large Counties, 2001, Bureau of Justice Statistics.  4/2004

[3] Limiting Tort Liability for Medical Malpractice.  Congressional Budget Office.  01/08/2004

[4] Medical Malpractice:  Implications of Rising Premiums on Access to Health Care.  GAO 09/29/2003

[5] Physician Characteristics and Distribution in the U.S., American Medical Association, 2006 edition, p.312

[6] National Manufacturing Week 2006 Annual Survey Results, National Association of Manufacturers, http//www.nam.org/s_nam/dov1.asp?CID=6&DID=236617

[7] Small Business Problems and Priorities.  National Federation of Independent Business.  http//www.nfib.com/object/2008problemspriorities.html

First, what is a “power of attorney”?  Through a power of attorney, you designate the person or persons (your “agent”) who you are legally authorizing to handle your affairs.  The designation may be limited in duration or in scope.

By designating a power of attorney as “durable” (and incorporating the appropriate language), the authority will remain in place even if you become mentally incompetent.  Therein lies the value of this document in estate planning – it creates an easy means for someone to be appointed to manage your financial affairs should you become unable to do so.  For maximum usefulness, the durable power of attorney should have no limitations or restrictions thereby allowing your agent to handle whatever may arise, whether anticipated or not.

But such broad powers are susceptible to abuse by a designated agent.  Once you deliver a validly-executed Durable Power of Attorney to your agent, you run the risk that your agent may perform acts which you do not approve or which may not be to your benefit.  You may be able to recover any funds improperly spent by your agent.  However, you not only run the risk that your agent may be judgment-proof (e.g., has no collectable assets) but also incur the costs of attorney fees to collect such funds.

If you lose your mental competency prior to executing a durable power of attorney, a court-appointed guardianship may then be the only recourse available for someone looking to oversee your affairs.  A guardianship proceeding can be both costly and time-consuming in comparison to the execution of a durable power of attorney yet both achieve the same results.

A guardianship will also require that the court first declare that you are not mentally competent to handle your affairs – a declaration which can be an emotionally unbearable consequence for many families.

In most instances, the durable power of attorney will be your best option, but the risks should first be understood.  The estate planning attorneys of Bogin, Munns  Munns are glad to consult with you on this and other matters when arranging your estate planning.

John Wright is a corporate 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. Wright works out of the Melbourne and Kissimmee offices of the firm and welcomes questions and comments regarding the above and can be reached at jwright@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.

By: Henry M. Cooper, ESQ.

Under the Protecting Tenants At Foreclosure Act of 2009, certain tenants now have right post foreclosure sale. This act provides that when a foreclosure occurred on a federally-related mortgage loan or on any dwelling or residential real property, the party taking title to the property via a Certificate of Title post foreclosure sale assumes the property subject to the rights of a “bona fide tenant.” If this new owner desires to evict the bona fide tenant, the new owner must now give the bona fide tenant a 90-day notice to vacate. This assumes, however, that the bona fide tenant is current in rent payments and otherwise in good standing under the terms of the bona fide lease. If not, normal eviction procedures are applicable.

Notwithstanding the foregoing, if a “bona fide lease” was entered into before the date of the foreclosure sale, the bona fide tenant has the right to remain in the property until the expiration of the term of the bona fide lease. The bona fide lease may be terminated prior to the expiration of the term of the bona fide lease; however, if the new owner has sold the property to a purchaser who will occupy the property as a primary residence subject to the 90-day notice to vacate.

The act defines “bona fide tenant” to mean a tenant who is not the mortgage or the child, spouse, or parent of the mortgagor. In addition, the act defines “bona fide lease” to mean a lease that requires the receipt of rent that is not substantially less than the fair market rent for the property.

READ THE FULL PUBLICATION HERE.

– Henry M. Cooper, Esq., is a shareholder and handles the residential real estate practice of 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 hcooper@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.

In addition, Florida Statute Section 316.613 (1) (a) states that every operator of a motor vehicle as defined herein, while transporting a child in a motor vehicle operated on the roadways, streets, or highways of this state, shall, if the child is 5 years of age or younger, provide for protection of the child by properly using a crash-tested, federally approved child restraint device. For children aged through 3 years, such restraint device must be a separate carrier or a vehicle manufacturer’s integrated child seat. For children aged 4 through 5 years, a separate carrier, an integrated child seat, or a seat belt may be used.

In July, 2009, the Florida legislature amended Florida Statute Section 316.614 (8) to remove language that previously allowed a motorist to be cited for a seatbelt violation only if a driver had first been detained for violating another motor vehicle law. Now, a motorist can actually be detained and cited for not wearing a seatbelt even if he/she is not cited for committing any other violation.

In addition to monetary penalties imposed for violation of Florida Statute Section 316.614, failure to comply with this seatbelt law can and will be used against you by an at-fault driver and his/her liability insurance carrier in your negligence claim for injuries- even if that at-fault driver was cited for causing the collision. Florida Statute 316.614 (10) states that while failure to wear your seatbelt will not constitute negligence per se, nor shall such violation be used as prima facie evidence of negligence or be considered in mitigation of damages, such violation may be considered as evidence of comparative negligence, in any civil action. The practical effect is that a jury in a negligence lawsuit can find you up to 50% at fault for the cause of your injuries if you were not wearing your seatbelt at the time of your motor vehicle accident. If that occurs, the amount that a jury awards you will automatically be cut by the percentage of fault that a jury finds you for not wearing your seatbelt.

Regardless, under Florida case law a Defendant in a lawsuit still has the burden of pleading and proving that you did not use an available and operational seatbelt, that your failure to use the seatbelt was unreasonable under the circumstances, and that there was a causal relationship between the injuries that you sustained and your failure to buckle up. The Defendant has the burden of proof in providing “competent evidence” of this causal relationship that is not uncertain, speculative, or conjectural because that is the evidentiary standard applicable to Plaintiffs for establishing their damages. Often times, liability insurance adjusters for the at-fault driver fail to offer any substantial, competent evidence to show this causal connection. It is obviously much easier for the at-fault party to show a causal connection between your non-use of a seatbelt to a facial or head injury than it is if you have sustained an internal injury, such as an injury to your spine.

For practical and legal reasons, don’t forget to make sure you and your passengers buckle up!

Read it (Yes, even the fine print)!

I am absolutely shocked how often people say to me: “You must be an attorney because nobody else spends time to read that paperwork.”  When you enter into a contract, it is important to know what it is that you are agreeing to do (or not do).  The need to read and understand the terms of the contract becomes even more critical the higher the cost at issue.  It is often said that the ‘American Dream’ is to own your own home or business.  Although these generally are the largest single investments people will ever make, many people do not take the time to read the stacks of paperwork that make up the contract.  If you are not going to read the paperwork yourself, at least hire an attorney to ensure that you are buying exactly what you think you are buying.  The terms that make up a contract really do matter.

Clarify it!

It has been said that the practice of law is simply the science of words.  An outrageous example of this was Bill Clinton’s response to a question before the grand jury, wherein he famously stated “It depends on what the meaning of the words ‘is’ is.”  Do you and the party you are entering into a contract with have the same understanding of what the terms mean?  If there is ever a dispute and you are unable to come to a prompt agreement, you may end up spending a lot of time and money having the court interpret the terms for you.  At that point, the control over the interpretation may be out of your hands completely.  For guidance on making that determination, the court may look at things such as: 1) the history of previous dealings between the parties, 2) the understanding that is common in the industry, 3) the terms as developed by our lawmakers or in the courts, and 4) public policy considerations.  As a result, the court’s interpretation of the terms of the contact may end up being the exact opposite of what you actually intended the terms to mean.  Always make sure the terms are clear and unambiguous before you sign the contract.  If you are not clear about a term, ask for clarification before you sign the contract.

Keep it!

Make sure that you always keep your original contract, as well as any modifications and correspondence regarding the contract.  It would be nice if everyone kept their word and abided by the promises contained in their contracts.  Since that is not the case, however, you may need to hire at attorney to enforce your contract.  Having all relevant documentation related to your contract is critical in this regard.  An attorney cannot give you thorough legal advice about your rights without the documentation of the contract any more than a doctor should give you a diagnosis of illness without doing a thorough examination.

Consult an Attorney!

Being penny-wise by not hiring an attorney up front may end up being pound-foolish for you in the end!  Spending a little money to have a qualified attorney review your contract (and revise as necessary) at the beginning will give you peace of mind that your intent will be carried out with less stress, headaches and expense in the long run.  If you would like to consult with an attorney to review your contract, call Bogin, Munns & Munns, P.A. at (352) 332-7688 in Gainesville or (407) 578-1334 in Orlando.

– Adam S. Towers , Esq., is a shareholder and manages the Gainesville office of 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 atowers@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.

Generally speaking, there are numerous common misconceptions as to the legality of non-compete agreements.  Prospective clients often believe that such agreements are either always enforceable or that they are rarely enforceable.  The reality, however, is that neither is true.  The courts look to a number of factors on a case by case basis in determining whether to enforce the terms of a particular agreement.  Accordingly, getting advice from a qualified and experienced attorney regarding such agreements is certainly prudent for both affected employers and employees.

In Florida, non-compete agreements are governed by both statute and the decisions interpreting same.  In this regard, section 542.335 of the Florida statutes provides the courts with both authority and some guidance as to the enforcement of non-compete and other related restrictive covenants.  For example, as noted in such statute, such agreements must be in writing and executed by the affected employee to be valid.  They must also, generally speaking, be reasonable in scope, time, and geographic area.  However, the mere fact that an agreement may be unreasonable in one or more of these areas will not absolutely preclude enforcement as the courts are authorized to limit the application or length of the restrictive period while still enforcing same.

Additionally, it should be noted that merely having an agreement and a breach of same does not mean that the courts will enforce such agreement.  In many cases, the key issue is whether the employer seeking enforcement can articulate one or more legitimate business interests supporting such restrictive covenants.  While section 542.335 provides several examples of such legitimate business interests, it is, of course, advisable to speak to a qualified attorney as to the specific facts of your matter.

Ultimately, a dispute involving a non-compete agreement can be a costly endeavor for the affected employee, the prior employer, and even the new employer.  In addition to money damages, such claims often involve requests for injunctive relief as well.  Moreover, Florida law allows for the recovery of attorney fees by the prevailing party in litigation regarding such agreements.  Of course, prudent actions by both employers and employees can often avoid litigation, but that is not always the case.  The employment attorneys at Bogin, Munns, & Munns, P.A. can offer advice and assistance at any stage of a matter involving these agreements and have significant experience in drafting, enforcement, and defense of same.

– Joseph Shoemaker, 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.  Mr. Shoemaker works out of the Leesburg office of the firm and welcomes questions and comments regarding the above and can be reached at jshoemaker@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.

The process of a typical motor vehicle accident case is often very difficult to explain to a victim because an innocent victim just cannot comprehend why the law would require them to prove the extent of their injuries and damages when they have done nothing wrong to cause this difficult misfortune upon themselves.  They are also very confused as to why the law would protect the rights of the at-fault party.  Yes, the at-fault party does have legal defenses along with the innocent victim’s possible right for recovery!  Worse yet, there are even some instances where the at-fault party may even escape financial responsibility while leaving a lifelong injury to an innocent victim.  Sadly, an automobile accident like life just isn’t always fair.  While the law does make every reasonable effort to assist those injured parties whose life has just been placed in ruin by another, it also does set forth very specific and solid guidelines with regard to victim’s compensation.   As unfair as it may seem, the fact is that the burden of proving pain and suffering does fall on the victim and they must prove what they have lost is a legal and justifiable injury/damage caused by the auto accident to be awarded compensation.  Unfortunately, most victims’ whether they receive money or not will rarely ever feel that have been justly compensated for their loss.  Victims of motor vehicle accidents may always bare the horrible consequences of permanent, crippling injury and sadly…sometimes it may even change their life forever…regardless of any amount of money received from a negligent party.

– Cynthia M. Thomas, Esq., is a 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.  She welcomes questions and comments regarding the above and can be reached at cthomas@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.

1.  Tenancy by the entireties:

Only a husband and wife can own property as tenants by the entireties.  If real property is owned by a husband and wife, there is a presumption of a tenancy by the entireties.  In this form of ownership, there is a right of survivorship – if one spouse dies, the other gets the entire property.  If it is your intent to establish a right of survivorship with your spouse, make sure that title to the property indicates the right of survivorship or designates you and your spouse as husband and wife.

2.  Tenants in common:

If title to the property specifically describes the parties as tenants in common or, if there is no express indication of a right of survivorship between two unmarried persons, there is a presumption that the property is owned amongst the parties as tenants in common.  In this ownership form, each tenant in common may freely transfer his or her interest and leaves his or her share of the property to his or her heirs or beneficiaries.

3.  Joint tenancy with right of survivorship:

Two or more unmarried persons.  The surviving persons will own all of the property upon the death of others.  If it is your intent to establish a joint tenancy with the right of survivorship, you should expressly indicate on title to the property the “right of survivorship”.

– Spencer R. Munns, Esq., is a shareholder 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 smunns@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 elements of the common law test are: (1) the intention of the parties (i.e., did the parties intend to enter into an employee/employer relationship or did they agree to create an independent contractor relationship); (2) the skill required in the particular occupation (this element is similar to economic reality test element number four); (3) the party furnishing the equipment and the place of work (this element is similar to economic reality test element number three); (4) the method of payment, whether by time or by the job (this element is similar to economic reality test element number two); (5) the type of employment benefits provided (i.e., if the employer provides the worker with medical insurance, then this factor tends to prove employee status); (6) the manner in which the work relationship is terminated (i.e., if the worker can be terminated at-will, then that tends to prove employee status); (7) the importance of the work performed as part of the business of the employer (this element is similar to economics reality test element number six); and (8) the manner in which taxes on income is paid (i.e., if the employer deducts standard payroll taxes, then this factor tends to prove employee status).

There are subtle differences between the economic realities test and the common law test.  The critical difference is that the common law test is generally regarded as setting a slightly higher threshold to proving employee status.  However, the courts are generally in agreement that even under the common law test, both tests are designed to measure the degree of control that the purported employer exerts over the employee.  Therefore, the fact that an employer does not offer insurance benefits may have less to do with independent contractor issues and more with the fact that the employer simply does not wish to incur this cost.  Furthermore, some courts have construed an employer’s unilateral refusal to deduct payroll taxes as a condition of employment not as proof of independent contractor status but rather proof that it exercises substantial control over the worker.  Should you have any questions regarding your current arrangement, feel free to contact one of the employment attorneys at Bogin, Munns & Munns, P.A. to coordinate a consultation.

– Daniel Perez, 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.  Mr. Perez works out of the Melbourne office of the firm and welcomes questions and comments regarding the above and can be reached at dperez@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 Statute imposes absolute liability upon the dog owner when the dog-bite victim is in a public place or lawfully on or in a private place except when the dog is carelessly or mischievously provoked or when the owner displays in a prominent place on the premises a sign easily readable including the words “Bad Dog.”  The presence of this sign does not apply to a person under the age of 6.

By displaying a proper “bad dog” sign, an owner may escape liability.  However, this defense maybe attacked in several ways.  First, it may be that the sign(s) were not in a prominent place, were not easily readable, or did not include the exact words “bad dog.”   Second, the statutory language does contain a qualifier that bypasses the sign defense if damages “are proximately caused by a negligent act or omission of the owner.”  For example, if an owner tells a visitor to ignore the sign, or indicates that the dog is not dangerous, the defense of the sign may not apply.

It is important when bitten by a dog to notify the owner immediately, notify animal control officials, photograph the bite, and seek medical attention.  The counsel of qualified legal representation is advisable as soon as possible after the bite, especially in cases of severe damage.

Pam Olsen, 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. Olsen works out of the Ocala office of the firm and welcomes questions and comments regarding the above and can be reached at polsen@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.

This legal concept is fair and just and can often be relied upon by a party to a contract; however, there are limitations.

This duty of good faith and fair dealing must relate to the performance of an express term of the contract.  It is not an abstract and independent term of a contract, which can be asserted to claim a breach when all other terms have been performed pursuant to the contract requirements.

The implied duty of good faith and fair dealing cannot be used to vary or modify a fully specified, unambiguous term of a contract.  A court will not  do that; it will not apply this legal doctrine in that manner.

Sometimes parties to a real estate contract or other contractual dispute seek to claim a breach of contract when things don’t go their way, even though there has been no breach of any particular contract term.  This is not the proper application of this doctrine.

It is more properly raised when there is an express contractual duty or obligation on the part of one party, but such party has sole discretion in complying with such duty, but acts unfairly or in bad faith in carrying out that duty.

One example where application was appropriate, was where a party to a contract agreed to “vigorously pursue… recovery of underpayments” but was given “sole discretion” to determine whether it was a justifiable expense and exercised bad faith in exercising that discretion.

An example where application was not appropriate, was where a buyer of real estate agreed to pay an additional $5 million bonus if the buyer was able to obtain approval to construct 600,000 square feet or more of air conditioned saleable space.  In this instance the contract did not impose on the buyer any duty to seek such approval and therefore there could be no implied duty to act in good faith in seeking such approval.  In other words, there was no express duty to which the implied duty of good faith could relate.

In contractual dispute negotiations, the doctrine of implied duty of good faith and fair dealing can be very useful, but its application must be clearly understood.

– Rulon D. Munns, Esq., is a managing shareholder of 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 rulon@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 Senate version of the bill is passing through committee and is presently with the Judiciary Committee.  The House version of the bill is now in the Criminal and Civil Justice Policy Council.   So far, other than minor editing of the language, both versions of the bill are being treated fairly favorably.

Condominium Association boards should also be aware that there are numerous other potential bills that may affect their governance.  To contact your legislator on any of these issues or to review these bills or track their progress, go to online sunshine at http://www.leg.state.fl.us.

Please contact Bogin, Munns and Munns if you desire a legal opinion or analysis of these bills or how these proposed laws would effect your association.  With nine offices including South Daytona and Melbourne, Bogin, Munns and Munns can assist condominium associations in our coastal communities navigate these proposed legislative changes.

– Jeremy Hill, Esq., is a 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. Hill works out of our Daytona office.  He welcomes questions and comments regarding the above and can be reached at jhill@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.

If you entered into a typical written lease agreement with your tenant, you would most likely be able to evict the tenant after giving the tenant the proper 3 day notice to pay rent or vacate.  You may thereafter file an action for possession with the county court to regain possession of the property.  This eviction procedure is on an expedited docket and may be completed in less than 30 days.

If the lease agreement contains an option to purchase, however, you may find that you are prevented from filing an eviction due to the tenant’s timely exercise of its option to purchase.  A lease with an option to purchase is typically entered into when a buyer wants to purchase the home but needs some time to acquire a down-payment or build up his credit score.  The lease with an option to purchase gives the buyer the right to purchase the property from the owner within a certain period of time at a mutually accepted purchase price.

Under Florida law, once the tenant exercises its option to purchase, the tenant is then considered an equitable owner of the property and cannot be evicted.  The proper legal method for removing the tenant in this instance is ejectment.  Ejectment is a statutory remedy found under Florida Statute Ch. 66 providing a person with a superior title interest in a property to request that the court order the current occupant to vacate the property restoring possession to the superior title owner.  The occupant, however, may file a betterment petition with the court seeking reimbursement for the value of the improvements made by the occupant to the property while possessing the property.  Ejectment actions are also under the jurisdiction of the circuit court and not the county court.  Thus, these actions usually are more time consuming and expensive to prosecute.

It is imperative that a landlord/owner of a property consult with a competent real estate attorney to determine their rights, obligations, and remedies concerning rental property issues prior to entering into any agreement with a prospective tenant.

– Henry M. Cooper, Esq., is a shareholder and handles the residential real estate practice of 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 hcooper@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.

Florida Courts, traditionally, have said that the owner of a motor vehicle is responsible for accidents and injuries caused by that vehicle, even when the vehicle is driven by a friend or family member. The courts have gone so far as to state that when a vehicle is used negligently, it becomes a “dangerous instrumentality” on the roadway.

For years, rental car companies were held to that standard, and they shared in the responsibility for accidents caused by vehicles that they owned. This changed dramatically on August 10, 2005, when a new federal highway improvement law was enacted (The Safe, Accountable, Flexible, Efficient Transportation Equity Act, 49 U.S.C. sec. 30106). This is a federal law, designed, in part, to improve roadways, which also included an amendment protecting rental car companies. The rental car companies were no longer responsible for damage done by their drivers, and lawsuits were not allowed against the companies.

Of course, there was an exception to this new rule, which is currently being litigated in courts across the country, including the Florida Supreme Court. The protection of these companies was limited in certain states;  in some states, you could continue to sue the company, and in others, you could not. In the first year following this new law, the Florida trial courts were divided on whether you could still sue a rental car company in our state. Some courts allowed lawsuits, some did not.

In law school, we learn that there are 2 sides to every argument. So, here is the reasoning behind the 2 sides of the argument. Those who support the federal law are concerned about holding the vehicle owner responsible, when it is an individual driver who caused the accident. In addition, they believe that the rental and leasing industry is important, and needs to be protected.

The side that opposes the federal law believes that it is an unfair stretch of federal power, and interferes with state laws and state rights. Traditionally, concepts like negligence and responsibility for accidents have been a part of the state law system. Also, this side believes that the victim of the accident needs to be protected, and preventing lawsuits against the owner of the vehicle could result in victims suffering significant medical expenses and pain and suffering, with no adequate remedy.

Currently, the application of this law is being challenged in the Vargas case (Rafael Vargas v. Enterprise Leasing Co., 993 So. 2d 614 (Fla. 4^th DCA  2008)) which was heard by the Florida Supreme Court on March 1, 2010. This case has already been presented to a trial court and an appellate court in Florida. Both courts have agreed with Enterprise, and ruled that a lawsuit against the company was not allowed.

Now, we wait and see what the Court has to say. Unless they decide to overrule the appellate court, rental car companies, not victims, will continue to be protected in Florida.

William Galione, 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. Galione works out of the Gainesville office of the firm and welcomes questions and comments regarding the above and can be reached at wgalione@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.

Any inaccurate or incomplete response to the questions on your insurance application may constitute a material misrepresentation. The most common misrepresentation is the failure to list all of the people living in your residence.  Insurance companies do not have a certain period of time to discover or notify you of the material misrepresentation.  Typically insurers discover material misrepresentations once you make a claim for insurance coverage.   It is possible and very common for someone to pay insurance premiums for years only to have their insurance company void their insurance coverage once a claim is made.  A material misrepresentation can cause you to be uninsured when you need insurance the most.

Do not think you have insurance coverage, know you have insurance coverage.  If you are applying for insurance, answer all of the questions on the application completely.  Do not dismiss questions as being unimportant.  Do not believe a representative that tells you certain information is not necessary.  Provide all of the information requested on the insurance application.  Retain a copy of the insurance application and the business card of the insurance agent for your records.  Once you have insurance, review the insurance policy to make sure it accurately reflects the information you provided to the insurance company.  If not, notify the insurance company of the errors in writing.

If you already have insurance, request a copy of your insurance application from all of your insurance companies.  Review your responses.  If there is any information that is incomplete or has changed, send your insurance company a letter correcting or supplementing your insurance application.  These changes may result in your insurance premiums increasing or your insurance company declining coverage.  However, it is better to pay more or get new insurance than to have an insurance policy that may be voided.

– 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.  She 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.

1.         Research the public records to ensure that your client is the title owner of record to the property.

2.         If you have a corporate client, make sure the person you are dealing with is the authorized representative of the company.

3.         Research the clerk of the county court records to verify your client does not have a pending foreclosure suit, Notice of Lis Pendens, or bankruptcy.

4.         Research the county tax records to determine if your client is current on his taxes.  If not, that is the first red flag.

5.         Call the homeowners association and find out if your client is current on his assessments.  This is also a sign that your client is experiencing financial difficulty.

6.         Request from your client proof of payment of the last 4-5 mortgage payments to determine whether he is delinquent or not.

7.         Request from your client a current certificate of insurance on the property.  You do not want to manage an uninsured property.

Florida real estate law and regulations are very comprehensive and contain very specific requirements that are constantly evolving.  It is imperative that a realtor or property manager consult with a competent real estate attorney concerning rental property issues.

– Henry M. Cooper, Esq., is a shareholder and handles the residential real estate practice of 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 hcooper@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.

HAMP provided guidelines for Loan Modifications while HAFA provides guidelines for Short Sales and Deeds-in-Lieu of Foreclosure.

• A “Loan Modification” is where the borrower keeps the house and the mortgage but the terms of the mortgage are changed to make the payment more affordable.
• A “Short Sale” is where the home is sold for less than is owed on the mortgage.  This is done with the mortgage lender’s approval.
• A “Deed-in-Lieu of Foreclosure” is where the borrower gives the home to the mortgage lender in exchange for canceling the mortgage loan.

The lender must first evaluate the borrower for a Loan Modification under HAMP.  The new HAFA directives will require lenders to then consider whether a borrower is eligible for a Short Sale or a Deed-in-Lieu.  The new HAFA directives will take effect on April 5, 2010, and expire on December 31, 2012.

All of the following criteria must be met to be eligible for HAMP and HAFA:

1. The home is the borrower’s homestead property;
2. The mortgage is a First Mortgage originated before Jan. 2, 2009;
3. The mortgage is delinquent or reasonably will be in the future;
4. The current mortgage balance is less than $729,750.01; and
5. The mortgage payment exceeds 31% of the borrower’s gross income.

If a borrower qualifies for a Short Sale under the new HAFA directives, the lender will be required to forgive any deficiency on the mortgage loan.  This will be a big help to borrowers because many borrowers who sold their home in a Short Sale are now being pursued by collections agencies to collect the deficiencies owed to the banks.  The HAFA Short Sale directives prohibit the lenders from reducing Realtor commissions below 6% and provide the following financial incentives:

1. • $1,500 for borrower relocation assistance
   • $1,000 for services to cover administrative and processing costs
   • $1,000 match for investors for allowing a total of up to $3,000 in short sale proceeds to be distributed to 2^nd mortgage holders

The new directives require the borrower to make an effort to sell the home through a Short Sale before they can sign a Deed-in-Lieu of Foreclosure.  If the lender accepts a Deed-in-Lieu (DIL) under the new HAFA directives, the lender may not require a cash contribution or promissory note from the borrower and must forfeit the ability to pursue a deficiency judgment against the borrower.

The borrower may request their lender evaluate whether they are eligible for a Short Sale or DIL.  If the borrower is not eligible, then the lender must notify them in writing and explain why.

Bogin, Munns & Munns, P.A. is a full-service law firm with experienced commercial lawyers who represent many banks and mortgage lenders.  If you are a loan servicer who is interested in legal representation and assistance with the HAMP and HAFA directives, you can call our office at (407) 578-1334 to schedule a consultation.

– Zana Dupee, Esq., is an experienced 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. The engagement would also be confirmed by a written agreement.

– 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.

The second element that is required is that you have to have damages.  Generally in my personal injury practice this means you have to be injured as a result of the liability mentioned above.  If you were in an automobile accident with no damage to you or the car, you have no claim regardless of how wrong it was for the other driver to have run into you.

The third element is some source of money to pay for the damages.  If you were rear ended by someone going 100 miles per hour, and have a broken leg and a broken arm, but the person that hit you has no insurance, no money, and you have no uninsured motorist coverage, you have no way to recover on your claim.  Certainly you would be entitled to take that person to court (which could cost thousands of dollars).  You would get a piece of paper called a judgment that would say that person owes you lots of money, but you could not get that person to pay you money they do not have.

– 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.

The Fair Credit Report Act was amended to include new identity theft regulations.  Officially titled “Identity Theft Red Flags and Address Discrepancies Under the Fair and Accurate Credit Transactions Act of 2003” (the “Act”), this Act was created to detect, prevent, and mitigate identity theft for all users of credit and other consumer report information.  As this type of information is routinely used by residential property managers to verify the financial ability and background of a prospective tenant, the Act imposes certain requirements on residential property managers to detect, prevent, and mitigate “Red Flags”.  The Act defines a Red Flag as a “pattern, practice, or specific activity that indicates the possible existence of identity theft.”

The Act requires that the residential rental property manager have certain reasonable policies and procedures in situations where the residential rental property manager obtains a prospective tenant’s personal identifiable information from a credit or other consumer report.  These reasonable policies must include the ability to (a) identify relevant Red Flags that may occur when the residential rental property manager obtains the personal identifiable information from the prospective tenant, (b) detect any Red Flags upon review of the provided personal identifiable information from the prospective tenant, (c) appropriately respond to any detected Red Flags, and (d) update the policy to reflect changes in risks to the rental property owner and the residential rental property manager.  It is highly recommended that you document these policies and procedures in writing.

One of the more common Red Flags is an address discrepancy.  The residential rental property manager must have reasonable verification and fraud prevention policies in place to verify a prospective tenant’s identity when there is a discrepancy in the prospective tenant’s address.  In most circumstances, the Red Flag will occur when the residential rental property manager receives a Notice of Address Discrepancy from a consumer reporting agency.  This Notice informs the residential rental property manager that there is a discrepancy between the address found in the tenant’s credit report and the address listed on the rental application.  To comply with the Act, the residential rental property manager may (a) verify the information contained in the credit report directly with the prospective tenant, or (b) compare the information contained in the credit report with other information found in other reports or sources (e.g. drivers license).  The residential property manager, however, does not have a duty to report any discovered fraud.

Fortunately, the date for mandatory compliance for this Act has been extended until June 2010 by the Federal Trade Commission.  This enables the residential rental property manager to have sufficient time to retain the services of a real estate attorney to assist them with the development of these policies to ensure compliance with this Act.

– Henry M. Cooper, Esq., is a shareholder and handles the residential real estate practice of 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 hcooper@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.

In its recent opinion, the following rule changes are made applicable to new residential foreclosure filings:

• Fla. R. Civ. P. 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. This means that the lender must swear to, or “verify”, the veracity of the factual allegations being made in the complaint.   The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.
• Form 1.924 – Affidavit of Diligent Search, is modified as follows.  First, the form is standardized and thus more user-friendly.  There is a new section for the affiant to insert the “Attempts to Serve Process and Results”.  There is also a “catch-all” section for the affiant to list all additional efforts made to locate defendant.   Furthermore, there is now a section which reads: “I inquired of the occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results: ________.”   A major change is also that the Affidavit of Diligent Search is now signed by the person who actually performed the search – likely a process server – and not the attorney on the case who may not have personal knowledge of the process server’s efforts.
• The opinion now requires the use of a new form, 1.996(b) – Motion to Cancel and Reschedule Foreclosure Sale.  A party cancelling a foreclosure sale is required to provide a reason for the cancellation.  Said the Court:     Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales are being reset so as to determine when they can properly be reset, or whether the sales process is being abused. . . . Again, this is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and sale.
• The opinion adopted a new form of Final Judgment of Foreclosure.  This new form has many changes to include clarity, bring the form in line with current statutory provisions and requirements, increase readability, and to conform to prevailing practices in the courts.

These amendments went into effect upon release of the Court’s opinion on February 11, 2010.

Many people are surprised to find out that in Florida when your name appears on the title of a motor vehicle as the owner, or as a co-owner, you subject yourself to legal liability if someone operating that motor vehicle with permission causes injuries to another person as a result of such permissive use.   Liability means that you, along with the driver and any other title owners of the motor vehicle, can be sued personally in court for damages incurred by the person(s) injured due to the fault of the driver.  This is what is known as the “dangerous instrumentality doctrine.”

Adopted in 1920 by the Florida Supreme Court, the dangerous instrumentality doctrine imposes strict liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.  This type of “strict” liability means that it doesn’t matter that you were not driving the car nor had anything to do with causing the accident.  This liability is based on the theory that the person who allowed another person to operate their motor vehicle is in the best position to ensure that there will be adequate resources with which to pay an injured victim.  You may or may not agree with this theory, but it is the law in Florida, and you must take steps to protect yourself.

So how do you protect yourself from the dangerous instrumentality doctrine?  You must immediately inform your insurance company (or your insurance agent if you have one) of all motor vehicles in which you have an ownership interest. Bodily injury liability insurance is the product that will protect your personal assets. You must confirm that you have adequate bodily injury liability insurance for that motor vehicle.  What is “adequate” is based on your personal situation and should be discussed with your insurance company or agent.

It is also important to point that the dangerous instrumentality doctrine extends to motor vehicles where you appear on the title only because you helped someone with the purchase and financing of the vehicle.  There is a court case in Florida where an aunt helped her nephew like this, and had nothing more to do with the car after the purchase was completed.  However, she was later successfully sued personally as the record title owner.

You need to be careful in becoming an owner of a motor vehicle and allowing other people to operate it.  Don’t get blindsided by the dangerous instrumentality doctrine.

– Barry K. Baker, 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. Baker works out of the Melbourne office of the firm and welcomes questions and comments regarding the above and can be reached at bbaker@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.

Economic damages, which may be loosely defined as those actual costs not paid by PIP, may be presented to and recovered from the at-fault parties’ insurance companies.  Unfortunately, however, Florida law does not require an individual to carry bodily injury indemnification coverage.  This means that if the at-fault party does not have bodily insurance coverage, the injured party is left with no practical recourse.  Certainly, the mere fact that a person does not have insurance does not mean that they would not be personally liable to pay damages, but generally speaking, if they cannot afford the basic insurance required by Florida law, in all probability, they probably do not have significant assets in which to satisfy a judgment.

The answer to this situation is Uninsured Motorist Coverage.  If bodily injury indemnification coverage can be thought of as insurance coverage designed to protect strangers from acts of negligence committed by an insured driver, then uninsured motorist benefits can be thought of as insurance coverage designed to protect your family.  That is, it is designed to protect your family from folks who do not have any insurance coverage at all or who have the minimal coverage required under Florida law.

Based on recent reports, Florida ranks in the top five states for the number of uninsured motorists.  According to the Insurance Research Council, in 2007 13.8 percent of all motorists in the U.S. were uninsured, but in Florida it was 23 percent.  Further, the Insurance Research Council found a correlation between unemployment and the rate of uninsured motorists.  Therefore, it stands to reason as well as common sense that as the unemployment rate rises so do the number of uninsured motorists.

Essentially, driving on Florida roads is much like Russian roulette.  Given the statistical odds of being in a motor vehicle collision coupled with the odds that the other vehicle does not have any coverage at all or has only the minimal coverage required under Florida law, the likelihood that an accident is caused by a person without the ability to pay damages or without the ability to satisfy a judgment in court is staggering.  Accordingly, uninsured motorist coverage may be the only avenue to be fully compensated for your injuries.  For that reason, it is perhaps the most important coverage that you may have.

If you have any questions regarding your coverage, we would highly recommend that you contact your insurance carrier or agent immediately to find out for certain whether you and your family are covered by uninsured motorist coverage.  If you would like a brief overview of Florida No Fault Insurance Coverage, we would also recommend that you read our January 6, 2010 blog “Understanding Basic Florida Automobile Insurance Coverage.”

– Scott Zirkle, Esq., is a 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. Zirkle welcomes questions and comments regarding the above and can be reached at szirkle@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.

Such liquidation may not be in the best interest of all parties.  In that case, one of the owners may use this circumstance to leverage the other owner to buy him/her out at an above-market price.  This situation can be avoided if the owners sign an agreement at the outset of the business, or even thereafter, stating, among other things, the rules for breaking a management deadlock and/or for determining the price to be paid in the case of a buyout of an owner’s interest.  Such agreement may also include restrictions regarding the sale of the ownership interest to a third party and procedures for handling the death or disability of an owner.

Legal counsel can help business owners anticipate these and other issues and suggest ways to minimize their interruption of your business.

– John Wright, Esquire, is a corporate 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. Wright works out of the Melbourne and Kissimmee offices of the firm and welcomes questions and comments regarding the above and can be reached at jwright@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.

An Ounce of Prevention is Worth a Pound of Cure!

As a father of four under the age of 12, I know too well that accidents happen.  Many accidents can be prevented with a little care and diligence.  Have the cockroach and rodent poisons been locked away or put out reach?  Did you tighten the loose ladder rung attached to the play structure?  Are there dead tree limbs just waiting to fall?  Does your landscaper or contractor building your new ‘Florida Room’ have adequate insurance in case of injury while on your property?

Am I Liable for the Injuries Sustained as a Result of the Accident?

This article cannot discuss every nuance of the law for every situation.  First, there is not enough room, and second, you would be bored to tears!  Generally speaking, the law imposes a ‘duty of care’ on every person who owns or possesses land in Florida.  For instance, if you give someone permission to be on your property, you owe a duty to act as a reasonable prudent person.  You must keep the premises in a safe condition, seek out any hidden dangers, and either warn about the dangers or take reasonable steps to make them safe.

For those labeled as trespassers, you owe a duty to refrain from wanton negligence or willful misconduct.  If you see the trespasser, however, you also owe a duty to warn of known dangers that are not easily discovered.  A child who is injured while trespassing may still bring suit against you if there is an ‘attractive nuisance’.  Do you have something that you know or have reason to know children are likely to be drawn toward and could result in a risk of death or serious injury? Children are curious creatures and do not always perceive the risk they are taking while exploring their environment. It is up to you to exercise reasonable care to eliminate the danger or otherwise protect the children.

Insurance…a Simple Way to Help Protect Your Hard Earned Assets!

I’m not an insurance salesman, but adequate insurance can bring peace of mind. A lawsuit can result in hundreds of thousands, or even millions of dollars in damages, not to mention the legal fees and costs.  If you have sufficient insurance and an injury claim is made, you can simply turn the problem over to the insurance carrier, who will then hire legal counsel to protect you.  Just as you should ensure you are adequately protected with automobile, health, life and disability insurance coverage, it is imperative that you have adequate premises liability insurance.  Make sure your insurance agent thoroughly explains the coverage available, including the benefits of an ‘umbrella policy’. This is one case where being penny-wise may end up being pound-foolish!

– Adam S. Towers, Esq., is a 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. Towers manages the Gainesville office of the firm and handles business, real estate, and insurance litigation.  He welcomes questions and comments regarding the above and can be reached at atowers@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.

Florida Statute Section 768.79 (2) requires a) that the Proposal for Settlement be made in writing and state that is being made pursuant to this section; b) must name the party making it and the party to whom it is being made; c) state with particularity the amount offered to settle a claim for punitive damages, if any; and d) state its total amount. Subsection (3) requires that the offer be served upon the party to whom it is made, and shall not be filed with the civil court unless it is accepted.

In negligence actions, the Proposal for Settlement Rule can be highly effective in placing pressure on opposing parties to settle lawsuits prior to trial. The Florida legislature’s intent in creating Proposals for Settlement may have in fact been to promote judicial efficiency by reducing trial dockets. However, while the Proposal for Settlement law appears to be fair on its face, the consequences of its enforcement are not equitable. Many Plaintiffs who are injured in negligence claims do not have the resources to satisfy a Defendant’s attorney’s fees and costs if a Proposal for Settlement is not met from a jury verdict. If an individual Plaintiff cannot afford to pay a Defendant’s attorney’s fees and costs, the civil court will impose a cost judgment against the Plaintiff which will accrue interest at the percentage rate set by the civil court for the given year. This can adversely affect a Plaintiff’s credit, and has even driven some Plaintiffs into bankruptcy. These effects only add insult to the Plaintiff’s injuries, which were often caused through no fault of his or her own. A corporate Defendant, in particular, will likely be in a much better financial position to satisy a Plaintiff’s attorney’s fees and costs. While none of my clients have experienced the adverse consequences of a Proposal for Settlement that was not met, this law forces both parties, but particularly the Plaintiff, to prudently consider a Proposal for Settlement and to understand the true value of his or her case. It is my goal to make sure that each of my clients understands the strengthens and weaknesses of his or her case in order to make an informed decision as to whether to accept a Proposal for Settlement or to proceed to trial.

– Michael Truax, 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.  He welcomes questions and comments regarding the above and can be reached at mtruax@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.

Florida Law requires that a vehicle owner (of four wheels or more) purchase a minimum of $10,000.00 of Personal Injury Protection (PIP) and a minimum of $10,000.00 of Property Damage Liability (PDL) insurance.

II. What basic coverage is available to an insured (or qualifying individual)?

Personal Injury Protection (PIP) –minimum of $10,000.00 (with or without a deductible) – REQUIRED

1. Reasonable Medical Expenses – paid at eighty percent (80%) of two-hundred percent (200%) of the Medicare fee schedule amount.
2. Wage loss reimbursement – paid at sixty percent (60%) for any loss of gross income and loss of earning capacity (per individual with proper doctor recommendation) for the inability to work as a result of  an injury sustained in a motor vehicle accident  – paid not less than every 2 weeks.
3. Expenses Reasonably Incurred – in obtaining from others ordinary and necessary services, but for the injury, the injured person would have performed without income for the benefit of his or her household.
4. Death Benefit equal to the lesser of five thousand dollars ($5,000.00) or the remainder of unused personal injury protection (PIP) benefits per individual.

What to look out for….

-          Pay yourself as soon as possible – expenses – wages, mileage, etc.
-          Avoid wage loss exclusions from your auto insurance policy.
-          Avoid high deductibles if you are unable to pay it when necessary.
-          Notify your insurance carrier of all household members, particularly licensed resident relatives.
-          Attend and be on time to any independent medical exams (IME) requested by your insurance carrier- this is required by an insured per contract, but it is often intended to limit/terminate PIP/Med Pay benefit coverage.

Medical Payment (Med Pay) – Twenty percent (20%) of the remaining balance due to medical providers not paid by PIP benefits (as paid under the Medicare schedule) – Med Pay is generally purchased up to a certain dollar amount.

What to look out for….

-          Med Pay does not cover wage loss, household expenses, etc.
-          Possible subrogation rights on third party liability claims.
-           Med Pay is paid at 100% and no longer subject to the Medicare fee schedule once PIP benefits have been exhausted.

Uninsured/Underinsured Motorist (UM) Coverage – Per individual/per accident coverage for an insured, his/hers resident relatives, and or his/her accident passengers (if in an insured vehicle is involved in a motor vehicle accident) caused by an uninsured or underinsured motorist.

1. Stacking – when an insured combines uninsured motorist coverage from more than one source/policy.
2. Non-stacking – limited to one vehicle only.

What to look out for….

-           Cover yourself first – add at least minimal coverage to your insurance policy – many insurance carriers fail to clarify what UM coverage is and/or its importance to an insured and his/her family.

Property Damage Coverage (PD)

1. Comprehensive coverage – Damage done to an insured’s vehicle other than collision.
2. Collision coverage – Damage done to an insured’s vehicle as a result of a motor vehicle accident/collision.

What you to look out for…

-          High deductibles.
-          Conduct a cost-benefit analysis on old, high mileage or damaged vehicles.
-          If comprehensive coverage is purchased in Florida it is sometimes possible to receive free windshield repair or replacement.

Rental coverage

Maximum rental allowance per day or per accident coverage.

III.  What coverage is available to another party if an insured driver (or qualifying individual) causes a motor vehicle accident?

Bodily Injury (BI)

Per individual /per accident.

What to look out for….

-          Not required by Florida Law.  However, an individual’s drivers license may be suspended and you may be required to purchase BI for three (3) years if you are found to be at fault for an automobile accident without BI coverage.
-          No duty for insurance carrier to defend an insured against lawsuits if no BI was purchased.
-          Personal assets may be more susceptible if no BI is purchased or if it is not sufficient coverage for the damages  sustained.

Property Damage Liability (PDL) - REQUIRED

Per accident

What to look out for….

-          Personal assets may be more susceptible if no or not enough coverage is purchased.

Cynthia M. Thomas, Esq., is a 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.  She welcomes questions and comments regarding the above and can be reached at cthomas@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.

A different result might be forthcoming, however, if the employees that were fired took notice of the fact that they were all white males, were all over the age of 60, or were all disabled in some fashion.  If so, then the employer may have violated one or more of the various Florida and federal laws that protect against workplace discrimination.  Such laws prohibit, among other things, discrimination in employment decisions based upon race, national origin, color, sex, disability, religion, age or marital status.

If you feel that you have suffered an act of workplace discrimination, then you are likely best suited to speak to a qualified Orlando employment law attorney as soon as is practicable.  It should be noted that most discrimination claims cannot proceed immediately to court.  Typically, the employee has to first file a complaint (termed a “charge of discrimination”) with either the federal government (the Equal Employment Opportunity Commission or “EEOC”) or the Florida government (the Florida Commission on Human Relations or “FCHR”) and allow the government an opportunity to investigate their discrimination issues.

Once a charge of discrimination is filed, the government will send a copy of the charge to the employer and will typically offer to set up a mediation (informal settlement conference) wherein an impartial person tries to assist the parties resolve their dispute prior to the government investigation.  If, however, the dispute cannot be resolved through mediation or mediation does not occur, then the government will conduct an investigation as to the alleged discrimination.  At the end of the investigation, the government will notify the employee as to its findings and will provide the employee with instructions on how to seek available remedies under the law.  Such remedies could include either an administrative hearing or a civil action in a court of law.

Of course, as with any legal claim, time is of the essence as the law limits the time that you have to file.  Generally speaking, charges of discrimination in Florida must be filed no later than 365 days from the alleged discriminatory act.  The employment attorneys at Bogin, Munns, & Munns, P.A. have handled many such claims from the initial filing all the way through to federal trial and even appellate claims.  The firm employs several experienced employment attorneys that are available for consultations and assistance at any stage of employment law proceedings.

– Joseph Shoemaker, 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.  Mr. Shoemaker works out of the Leesburg office of the firm and welcomes questions and comments regarding the above and can be reached at jshoemaker@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.

Because divorce or “Dissolution of Marriage” as it is technically referred to in Florida Courts is so prolific, there are many misconceptions and much confusion related to this area of the law.  This is largely because divorce is such an emotional, stressful and highly charged affair. As a result, the events surrounding it become shared with others and this leads people to believe that the results of one person’s divorce might or should be similar to someone else’s.  Nothing could be further from the truth.

Divorce is highly fact intensive and the only person with whom someone should consult with regarding a potential divorce is an attorney licensed by the Florida Bar with extensive experience in Family Law.  Only such an attorney can provide an individual with the advice and expertise that is necessary relative to seeking a divorce.  One of the most important things to remember with regard to filing for divorce in Florida is that Florida is a “no fault” divorce state.  This means that either spouse can file for divorce if that spouse can prove that the marriage is “irretrievably broken.”  The reasons for the marriage being irretrievably broken can range from infidelity or to the fact that one of the spouses simply isn’t in love with the other spouse anymore.  Regardless, from an evidentiary standpoint, proving that a marriage is irretrievably broken is not difficult.

Divorce in Florida has been largely codified within Florida Statutes Chapter 61.  Chapter 61 delineates the factors to be considered within the context of the major components of divorce.  These components or “areas” are:  equitable distribution; time-sharing with any minor children (formerly called custody); child support of any minor children; alimony (when applicable); enforcement of orders or judgments previously entered by the court as well as other areas.  These areas will be more fully explored in future articles by this author.

Divorce is consistently ranked by many sources as the second most stressful life event (after the death of a child or spouse) that could happen in one’s life.  It cannot be overstated enough that it is extremely important that one have a strong support system (family, counseling, clergy, friends, etc.) when dealing with divorce.  However, what is most tragic is the effect that divorce can have on children.

It is extremely important that regardless of what is sought by either party within a divorce proceeding, that the best interests of the children be put first.  Parents must quickly realize and accept that although they may not be married to each other; they will always be the parents of their children.   Courts in Florida severely frown upon parental alienation including disparaging the other parent in front of a minor child or not allowing a parent contact with a minor child.  In fact, alienating a child from a parent is so serious that it can lead to limiting the alienating spouse’s contact with a child.  Divorcing spouses with children must learn to co-parent effectively and with the best interests of the children in mind. This will ensure that the least amount of harm will be inflicted upon the minor children.  Learning how to co-parent during and after a divorce is an acquired skill and it is wise to seek counseling services and the advice of qualified professionals experienced with helping children and families of divorce.

In conclusion, divorce is a confusing, nebulous concept to individuals who have not had the benefit of consulting with an attorney licensed by the Florida Bar experienced in family law.  It is important to take the “high road” when going through a divorce as it will best allow one to get past it with dignity and with less stress and hurt feelings.  Most importantly, if one has minor children, it is paramount to consider the children’s needs first and to make the children’s well-being the primary consideration at the inception of any divorce proceeding.

– William Rosenfelt, Esq., is an Orlando family law 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 wrosenfelt@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 upside to the worker of an independent contractor arrangement (i.e., the illusory promise of higher wages unencumbered by payroll taxes) is often outweighed by the downside to this arrangement.  The worker will still be required to pay income tax on wages earned in an independent contractor scenario.  Furthermore, the worker may have to retain an accountant or CPA to keep track of receipts and complete their personal and “business” tax returns at the end of the fiscal year.  These are costs that are not readily apparent to the worker.

Furthermore, the downside to an independent contractor arrangement could entail diminished social security returns in the future, unpaid medical bills resulting from workplace injury not covered by medical or worker’s compensation insurance, lower wages for longer hours worked, and, even, exposure to discriminatory treatment or harassment.  These downsides are often unforeseen by the worker.  Therefore, the law applies two (2) tests to examine whether a worker was misclassified as an independent contractor.

The first test (i.e., the economic realities test) is applied to minimum wage, overtime, and Family Medical Leave Act situations.  The factors considered under the economic realities test are: (1) the employer’s degree of control over the worker’s job functions (i.e., the higher the degree of the employer’s control over the worker, then the more likely that the worker is, in fact, an employee); (2) the worker’s opportunity for profit or loss (i.e., if the worker is required to exclusively work for the employer or per the employer’s terms of pay, then the more likely that the worker is, in fact, an employee); (3) the relative investments of the employer vis-à-vis the worker (i.e., if the employer has invested more time and money into the enterprise than the worker, then it is more likely than not that the worker is, in fact, an employee); (4) the degree of skill and initiative required to perform the worker’s job (i.e., if the work requires average or below average skill or training, then it is more likely that the worker is, in fact, an employee); (5) the permanency of the relationship (i.e., if the worker is working for a specific period of time or completing a specific project (e.g., installing new plumbing for the employer) rather than working on an at-will basis, then the worker is more likely an independent contractor); and (6) the nature of the worker’s services to the employer’s business (i.e., to use the plumbing example again, if the employer’s business is a law firm, then the person retained to install the new plumbing is not likely to be construed as an employee of the business).

The second test used to determine whether a worker is an employee is the common law test.  The common law test has eight (8) factors which we will explore in part two of this article.  So, stayed tuned.  In the meantime, should you have any questions regarding your current arrangement, feel free to contact one of the employment attorneys at Bogin, Munns & Munns, P.A. to coordinate a consultation.

– Daniel Perez, 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.  Mr. Perez works out of the Melbourne office of the firm and welcomes questions and comments regarding the above and can be reached at dperez@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.

What does a hospital lien mean to your personal injury case?  You or your attorney must satisfy the lien from any settlement.  Some laws automatically allow a reduction for your one third attorney’s fee or the applicable percentage of the attorney fee.  Also, if the patient (or patient’s attorney) and the hospital agree to an amount to settle the hospital bill which is less than the full amount charged, then the lien is extinguished because the underlying debt is resolved.  While the lien law is a serious matter, it applies only to settlements or verdicts, and it cannot attach to any other property unless the collectable amount is pursued in litigation and a judgment is obtained against you.  Some clients worry that it automatically means, for example, their home can be at stake.  This is not the impact of an initial hospital lien, which is routinely filed by hospitals after nearly every automobile accident when you receive treatment at a hospital.

The last important point to understand about a hospital lien is that it can take priority over an injured party’s right to apply for PIP benefits to their claim for lost wages or funeral expenses.  This is something your attorney can explain to you in detail if you are concerned about these issues, and be assured that in many cases the lien is satisfied by your no-fault benefits (PIP) by 80% and many balances are adjusted after the payment is applied.  If you receive this onerous looking letter in the mail after your accident, simply notify your attorney and be assured it is a rather routine matter normally amicably resolved.

Health insurance, Medicare, or Medicaid liens: Most private health insurers and all Medicare and Medicaid providers have a right to reimbursement from any proceeds from a personal injury settlement or verdict.  You may receive a notification of this right if you receive treatment due to the liability of another person and have a right to recovery for your injuries.  Even if you do not receive this notice, you have an obligation to satisfy the amounts paid by any of the above referenced providers, unless the policy provisions of your private health insurance indicates otherwise.  Even if you are not represented by an attorney, you must consider these amounts paid for you as amounts you actually owe in the case of an insurance settlement for your injury.  These laws and medical charges can be complex and difficult to negotiate.  For this reason alone, it is always wise to consult legal counsel in the case of personal injury. 

Pam Olsen, 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. Olsen works out of the Ocala office of the firm and welcomes questions and comments regarding the above and can be reached at polsen@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.

Be sure to understand the specific terms of the note, such as the loan amount, interest rate, maturity date, and repayment and prepayment provisions.  Additional noteworthy clauses in the note or mortgage include: due on sale, prohibition against junior financing, option to call or recast, and default.

– Spencer R. Munns, Esq., is a shareholder with the law firm of 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 smunns@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.

In triple net leases, generally, the tenant is required to pay for the utilities, taxes, insurance and maintenance.  This form of lease is often favored in sale-leaseback deals.  While it may be clear that the tenant has responsibility for payment of the real estate taxes, questions can arise as to rights and responsibilities of the parties related to disputes over taxes.

Let’s say that the real estate taxes assessed against the leased property are too high in the opinion of the landlord and/or tenant.  Both have a vested interest in keeping the taxes down.  By doing so the tenant saves money and the landlord prevents precedent for higher valuations in the future.

Many leases, however, fail to address the issues related to legal challenges made to a valuation deemed to be too high.  For example:  what rights does tenant have to challenge or appeal the assessment?  Is the tenant required to get the landlord’s approval to file an appeal or lawsuit disputing the taxes?  Does the landlord have the right to approve any settlement?  What if the landlord and tenant cannot agree on the terms of any settlement?  If there is a refund, who is entitled to the refund?

Leases can become long and laborious and many times the landlord and the tenant resist lengthy forms of leases.  Of course, its best to be cautious and not be overly verbose in lease drafting.  However, it is important to cover critical issues such as the rights and obligations of the parties related to real estate taxes imposed on the property subject to the lease.  As usual, while the tenant or landlord may not see the necessity of addressing such issues, they will surely thank their counsel when such an issue arises during the term of the lease.

– Rulon D. Munns, Esq., is a managing shareholder of 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 rulon@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.

A.     Yes.  Your client may be subject to the Foreign Investor in Real Property Tax Act (FIRPTA).  FIRPTA requires that the buyer involved in your transaction withhold 10 percent of the “amount realized” by your client who is a “foreign person” in connection with the subject purchase and sale transaction.  The buyer or the agent is then required to remit the 10 percent withholding tax to the I.R.S. together with the required I.R.S. forms within 20 days of the closing.

Q.        My client is a non-U.S. citizen who is selling his residential property located in Florida.  He does not want 10 percent of his net sales proceeds withheld by the buyer.  Are there any exemptions to FIRPTA?

A.   Yes.  It is important that you discuss FIRPTA with your client early in the real estate transaction to enable your client to take advantage of some of the exemptions available to foreign persons under FIRPTA.  There are three common exemptions to the act.  First, if your client is not considered a “foreign person” under FIRPTA, he is exempted from compliance with its provisions.  Your client would have to furnish a non-foreign certificate stating that the he is not a foreign person as defined under FIRPTA because he is (1) a U.S. citizen, (2) a resident alien, or (3) a domestic corporation, partnership, trust or estate.  Second, your client would be exempt from FIRPTA if the buyer meets the residency requirement.  The withholding requirement is waived if the buyer is acquiring the property for use as a primary or secondary residence (not as an investment) and the amount realized is $300,000 or less.  The buyer will be required to sign a residency certificate at closing affirming the amount realized and that the buyer has definite plans to reside in the property for at least 50 percent of the number of days that the property is in use during the first two years from the closing date.  Third, although FIRPTA requires 10 percent to be withheld, the amount withheld cannot exceed your client’s maximum tax liability.  Accordingly, although not a complete exemption, your client may request the I.R.S. to determine his maximum tax liability with respect to the sale of his property.  Your client can accomplish this by filing an IRS Form 8828-B Withholding Certificate.   This form may be filed at any time prior to closing.  Please note, however, that your client will not be able to file for the withholding certificate without a Taxpayer Identification Number.  You should inform your client to immediately apply for a Taxpayer Identification Number in case he plans to utilize this exemption.

Q.        My client is the buyer in a Florida real estate purchase and sale transaction involving a foreign seller who is subject to FIRPTA.  I have reason to believe my buyer is falsifying a Residency Certificate in order help the seller avoid the withholding tax by stating that he is purchasing the Florida property as his primary residence when I know it is for investment purposes.  What should I do?

A.        Although it is the buyer’s primary responsibility to determine the foreign person’s status and withhold the tax, you may also be held liable for the tax under certain circumstances.  If you have knowledge that the Non-Foreign Certification or Residency Certificate is false, you must provide notice of this falsity to the other party and closing agent.  If the notice is not provided, you may be held liable for the tax that should have been withheld to the extent of your compensation from the purchase and sale transaction.    If a foreign seller is involved in a residential property purchase and sale transaction, it is recommended that both the buyer and seller consult with a real estate attorney to ensure that all parties are legally protected and fully comply with the provisions of FIRPTA.

– Henry M. Cooper, Esq., is a shareholder and handles the residential real estate practice of 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 hcooper@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.

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.

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.

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.

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.

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.

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.

An escrow agent is required to keep funds in escrow until disbursement is properly authorized.  Proper authorization would consist of (a) the transaction closing and the escrowed funds being credited to the buyer, (b) written release of the escrowed funds signed by both parties to the transaction in the event the transaction fails to close, or (c) a court order directing the escrowed funds to be released to a specified party in the event the transaction fails to close.

Additional requirements may be imposed on the escrow agent depending on who is holding the funds in escrow.  For instance, a title insurance company is subject to the provisions of Florida Statute §626.8473 and is required to keep the funds in escrow until disbursement is properly authorized as set forth above.  A law firm acting in the capacity of a title agent is further regulated by the Florida Bar imposing strict ethical rules on the attorney regarding the holding and disbursement of escrowed funds.  In certain circumstances, a real estate brokerage company has reporting requirements imposed on them by the Florida Real Estate Commission and also has certain settlement procedures they must follow as set forth in Florida Statute §475.25(1)(d)(1).

In today’s residential real estate market, many escrow agents have disbursed escrowed funds to developers in connection with new construction transactions wherein the developer provides a “default certification letter” to the escrow agent pursuant to Florida Statutes §501.1375.  Simply receiving a default certification from the developer, however, is legally insufficient to trigger the lawful release of escrowed funds to the developer.  Pursuant to Florida law, a buyer must be afforded a judicial hearing which provides the buyer with the opportunity to present its evidence and argument as to whether a default occurred by either party and who is entitled to the escrowed funds as a result of this judicially determined default.  Absent a signed release by the parties, this hearing must precede the release of the escrowed funds by the escrow agent to any party.

If you are a buyer or seller who is involved in a residential escrow deposit dispute, it is recommended that the buyer or seller consult with a real estate attorney to provide legal guidance and take proper action to enforce your claim to the escrowed funds.

– Henry M. Cooper, Esq., handles the residential real estate practice of 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 hcooper@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 answer is to make a claim on your owner’s title insurance policy.   At closing, you will have (or at least should have) purchased an owner’s policy of title insurance that insures that you have “good title” to the home.  Depending on the policy terms, an owner’s title insurance policy may insure against all kinds of potential title problems, including:

• Title to the home being vested in someone else.   For example, suppose you buy your home from Sally Seller, who claims to be unmarried.   Several years go by, and at some point, you decide to either sell the home, or perhaps refinance your mortgage.  It is not until that time that you learn that Sally Seller lied at closing –  in truth, she was not unmarried and in fact legally owned the home with her husband, Sam Seller.  Since Sam didn’t sign the deed to you, he now claims he has an ownership interest in your home.    Your owner’s policy of title insurance may offer you coverage for this title problem.
• A defect, lien or encumbrance on your property.   Let’s go back to Sam and Sally Seller.   Suppose Sam and Sally Seller own the home encumbered by a mortgage from Big Bank.  You agree to buy the home, and you incur a purchase-money loan, secured by a mortgage, from Community Bank.  If all goes well, at the closing table, some of the funds from your loan from Community Bank will pay off the Sam and Sally Seller’s loan from Big Bank, and Big Bank will release its mortgage against your home.   Usually, this occurs.  But what if Big Bank (because it is so big) makes a mistake and applies the money paid at your closing to a different loan on a different property.   That leaves Big Bank’s mortgage still on your property.   The Sellers, thinking that their mortgage is satisfied, stop making their monthly mortgage payments to Big Bank.  Big Bank then files to foreclose its mortgage on your home!   Your owner’s policy of title insurance may offer you coverage for this title problem.
• Lack of access to your property.   Our now-famous couple, Sam and Sally Seller, own a home in the country, which you buy and move into.   You access this property by driving down a dirt road which runs off of the main highway.  You have noticed that there is a gate and fence at the entrance of the dirt road, but you think nothing of it and for some time, you use the dirt road to get to your home.  One day, you find the gate to the dirt road is now locked and you can’t get home.   You then learn that the dirt road is on property owned by Robbie Rancher, who has never granted an easement over his property to use the dirt road and he’s now decided he doesn’t want you driving up and down his dirt road to get to your home.  Your property is landlocked any without legal access.  Your owner’s policy of title insurance may offer you coverage for this title problem.

Like any other policy of insurance, an owner’s title insurance policy will contain exceptions and exclusions form coverage, and the examples above are not meant to provide an indication that coverage would, in fact, exist in any particular scenario.   However, these are real-life examples of claims I have handled when a title insurer has hired me to represent an insured owner.

Like any other policy of insurance, you may never need it.   However, if you do need title insurance, and a covered claim is made, an owner’s policy of title insurance is invaluable.   If the claim is covered under the policy, not only will the title insurer provide to you an attorney to defend your title to the property, the title insurer will also be obligated to either to “fix” the problem (if it can be fixed), or pay you the monetary losses you sustain in the event the problem cannot be fixed.

The purchase of an owner’s policy of title insurance is not required by law in Florida.   However, in my opinion, it is absolutely necessary that you protect your real estate investment through the purchase of title insurance.   Not only will you buy protection you may in the future need, you also buy some peace of mind in knowing that if a covered claim is made, the title insurance company will protect and defend your title to your home.  Don’t close on a purchase of a home without investing in an owner’s policy of title insurance.

– Nancy E. Brandt, Esq., manages the commercial litigation department of 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.  She welcomes questions and comments regarding the above and can be reached at nancyb@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.

You should understand that if you or a loved one is injured due to someone else’s negligence in a motor vehicle collision, Florida law – with very limited exceptions – does not require drivers or owners of motor vehicles to have bodily injury liability insurance.  Bodily injury liability insurance covers claims for death, permanent injury, significant scarring or disfigurement, or the significant and permanent loss of an important bodily function caused by the at-fault driver.

Florida law merely requires that owners of motor vehicles required to be registered in Florida maintain $10,000 in property damage liability insurance and $10,000 of personal injury protection insurance.  Neither of these insurance products covers bodily injury claims made by an injured person against the driver or owner of the motor vehicle that caused the injuries.  This is where an insurance product referred to as uninsured / underinsured motorist’s coverage can potentially fill the gap and provide a source of recovery for the injured person.

Uninsured / underinsured motorist’s coverage pays for claims made by you, certain family members, and other persons permissively operating or occupying your covered automobile when you or they are injured due to the fault of someone else. This type of insurance is purchased by you and is generally referred to as “UM.” UM coverage can come into play when the at-fault driver and / or owner have no, or inadequate, bodily injury insurance to cover your personal injury claim, or if the injuries arise from a “hit and run” incident.  As is the case with bodily injury liability insurance described above, UM will cover claims for death and serious permanent injury.

Unless your insurance company obtains from you a proper written rejection or limitation of coverage, Florida law requires that you be provided UM coverage equal to any bodily injury liability coverage you may purchase, and that the UM coverage be “stackable.”  Stackable coverage means that you may combine, or stack, the coverage limits for each automobile insured under your policy.  For example, if you purchased bodily injury liability coverage of $10,000 per person and $20,000 per occurrence, and had three automobiles covered under the policy, your combined available UM coverage would total $30,000 per person, and $60,000 per occurrence.

The importance of having adequate UM coverage cannot be emphasized enough.  Speak with your insurance agent today to determine if you are adequately covered.  In many cases, this insurance coverage could be your only source of monetary compensation if you are injured in a motor vehicle collision due to the fault of another.

Barry K. Baker, 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. Baker works out of the Melbourne office of the firm and welcomes questions and comments regarding the above and can be reached at bbaker@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.

As a landlord, your tenant comes to you one day and informs you that he was served with a summons and complaint for mortgage foreclosure and has the right to terminate the lease or, at minimum, stop paying rent.  Generally speaking, your tenant would be incorrect.  Your written lease is still legally binding upon the tenant until such time as the tenant’s leasehold interest is foreclosed upon the issuance of the Certificate of Sale.  This is partly due to the fact that you, as the owner of the property, have the right to redeem your interest in the property up until the Certificate of Sale is issued.  Until this event occurs, the tenant still has the obligation to timely pay the landlord rent and fulfill his other obligations under the lease.

Under a recently passed federal legislation entitled Protecting Tenants At Foreclosure Act of 2009, however, certain tenants now have rights post foreclosure sale.  This Act provides that when a lender forecloses its “federally-related” mortgage on a residential property, the person or entity taking title to the property via a Certificate of Title post foreclosure sale assumes the property subject to the rights of a tenant who is not the borrower or the child, spouse, or parent of the borrower.  If this new owner desires to evict the “bona fide” tenant, the new owner must now give the tenant a 90 day notice to vacate.  The new owner may also have to honor the term of the tenant’s “bona fide” lease if the lease requires the receipt of rent that is not substantially less than the fair market rent for the property.  In such case, the tenant may remain on the property until the expiration of the term of this “bona fide” lease unless the new owner has sold the property to a purchaser who will occupy the property as a primary residence subject to the 90 day notice to vacate.

Florida real estate law and regulations are very comprehensive and contain very specific requirements that are constantly evolving.  It is imperative that a landlord, tenant, realtor, or property manager consult with a competent real estate attorney to determine their rights, obligations, and remedies concerning rental property issues.

– Henry M. Cooper, Esq., handles the residential real estate practice of 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 hcooper@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.