According to Florida Statute Section 316.614 (4), it is unlawful for any person: (a) To operate a motor vehicle in this state unless each passenger and the operator of the vehicle under the age of 18 years of age are restrained by a safety belt or by a child restraint device pursuant to s. 316.613, if applicable; or (b) To operate a motor vehicle in this state unless the person is restrained by a safety belt. Florida Statute Section 316.614 (5) further states that it is unlawful for any person 18 years of age or older to be a passenger in the front seat of a motor vehicle unless such person is restrained by a safety belt when the vehicle is in motion.

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!

Most people who are involved in a motor vehicle accident are often confused when they meet with a lawyer for the first time after an accident.  Often times, they expect to see the justice, drama and large awards like they see on television.  They expect to be sent to a doctor at the law firm’s bidding, they expect that the lawyer will make the at-fault party pay for all the medical bills, lost wages, car damage, give them large sums of money for pain and suffering and then life goes on as usual for the victim.  Unfortunately, this is often far from what happens in a typical motor vehicle accident case.  While it is true, in most case the at fault party does pay medical bills, lost wages, car damage, and ends up paying sums of money for pain and suffering to a victim, the truth is that sometimes the compensation to a victim is very little or even none.  The cases involving large sums of money are often limited to very tragic accidents involving death or catastrophic injuries to a victim.  Fortunately, these death or catastrophic injury cases are not the typical case, but just the same the typical motor vehicle accident case does have serious and significant impacts on a victim’s life.  Unfortunately, the drama that is often exciting and entertaining as it unfolds on television is now not so appealing because it is personal.  To a victim the whole experience of being involved in a motor vehicle accident often becomes very overwhelming because it can often cause serious physical injury, time away from work and sometimes financial devastation to someone who was just at the wrong place at the wrong time.

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.

Dog bite cases in Florida are governed by Florida Statute 767.04.  In pertinent part, Statute 767.04 provides that the “owner of any dog that bites any person while such person is on…the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners’ knowledge of such viciousness.”  “Owner” includes any person, firm, corporation, or organization possessing, harboring, keeping or having control or custody of a dog.

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.

In most situations, unfortunately, yes.

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.

You may not recall the information you provided on your insurance application, but your insurance company does.  If you neglected to provide full and accurate responses to the questions on your application for insurance, you may not have insurance coverage. Insurance companies are allowed to void an insurance policy if the company finds that a there was a material misrepresentation made in the insurance application. [1] A material misrepresentation is defined as a misrepresentation, omission or concealment of fact that would have changed the insurance premium charged and/or caused the insurance company to decline coverage.  Whether you did or did not intend to omit information or mislead the insurance company is of no consequence.  The only issue is whether the information, if known, would have changed the insurance premium or caused the insurer to decline coverage.

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.

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[1] When the insurance company voids a policy, the insurance company will reimburse the insurance premiums paid, but they will not provide insurance coverage for the claim.  The value of the insurance coverage is often greater than the premium reimbursement.

– 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. Use caution when proceeding through intersections, look to the left, then right, then left again.
2. When stopping at a traffic light and the light changes to green, use the “5 second rule” and wait 5 seconds before proceeding.
3. Leave a safe distance between your car and others.  A general rule is for every 10 miles per hour of speed, leave at least one car length space between your vehicle and the vehicle ahead.
4. Maintain a constant speed.  Don’t continually slow down or speed up.
5. Don’t encourage or participate in aggressive driving.
6. Properly maintain your vehicle, including checking the tire pressure and tire condition.
7. Adjust the seats and mirrors.
8. Be aware of road conditions and reduce your speed below the speed limit if the road conditions warrant doing so.
9. Keep your lights on at dusk and dawn and during the rain.
10. DO NOT DRINK AND DRIVE!
11. Look, as far ahead as possible while driving, this will give you the maximum amount of time to react.  Keep your eyes moving; do not fix your eyes on only one spot.
12. Pull over when using your cell phone, picking up items from the floor, checking maps, changing music, eating or engaging in personal grooming.
13. Make certain your children are properly restrained in the back seat so they will not be a distraction.
14. Avoid being late which will increase the chance of careless driving.

– 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.

My first boss always told clients that there are three things you need for any claim.  First, you need liability.  Somebody had to do something wrong.  In a car accident this usually means someone hit you from behind, ran a stop sign or red light, or otherwise engaged in some improper driving.  If someone has fallen in a store or other facility, this element is sometimes often hard to explain.  The general public, and even some lawyers (who are misinformed), believe that just because you fell on their property and got hurt that they are responsible.  This is not true.  The store operator must have done something wrong that caused or contributed to the injury.  Often times this may be that they failed to correct a dangerous condition that they could have discovered with reasonable effort.  For example, where a freezer is leaking water and a small puddle accumulates causing someone to slip, that is going to create a tough question for the jury.  However, the larger the puddle, the longer that the condition was there to have been discovered by the store operator.  If it can be shown that the store operator would have discovered it with reasonable inspections, and did not, then they have done something wrong, and hence have at least some liability in the matter.

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.

In theory, Florida’s No Fault Automobile Insurance Law was intended to lower the cost of auto insurance by taking small claims out of the court by requiring each insurance company to compensate its own policyholders for the cost of minor injuries regardless of who was at fault in the accident.  However, in Florida this personal injury protection coverage, which is better known by its acronym PIP, has very insignificant limits of $10,000.  This amount is intended to pay not only medical bills, but also wage loss and other “out-of-pocket” expenses, such as mileage to and from healthcare providers.  Clearly, if the injuries suffered requires more than a few visits to a healthcare provider and/or involves a prolonged inability to work, then any amounts not paid by PIP must be recovered from the at-fault driver or the owner of the vehicle driven by the at-fault driver if the injured party is to be made whole.

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.

Spring time is almost here in Florida!  It’s time to wipe down the cobwebs and dust off the barbecue and lounging chairs, spruce up the swimming pool, and invite your friends and family over for some good old fashioned food and southern frivolity.  Suddenly, somebody is seriously hurt or, even worse, dies as a result of an injury.

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.

Pursuant to Florida Statute Section 768.79 (1), the Florida Legislature has allowed both the Plaintiff and Defendant the ability to file in the courts of this state what are called Proposals for Settlement, formerly known as Offers of Judgment, to the opposing party. If a Defendant files a Proposal for Settlement which is not accepted by the Plaintiff within 30 days, the Defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the Defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing the offer if the judgment is one of no liability or the judgment obtained by the Plaintiff is at least 25% less than such offer, and the court shall set off such costs and attorney’s fees against the award. If a Plaintiff files a Proposal for Settlement which is not accepted by the Defendant within 30 days and the Plaintiff recovers a judgment in an amount at least 25% greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the Proposal.

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

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