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Exclusive Use – Restrictions In Shopping Center

admin — Wed, 01 Feb 2012 22:19:37 +0000

To protect against competition within a shopping center, a tenant will often seek an “exclusive” right of use so that it will not have direct competition in the same shopping center where the tenant is opening its business.

The landlord will resist, or at least try to make the exclusive as narrow as possible, so as to avoid limitations on the landlord’s ability to lease space to other tenants.

An exclusive right of use should be granted only for the tenant’s “primary” use and not for a use that is merely incidental to its business. The terms “primary use” and “incidental use” must be clearly understood by both the landlord and tenant and the applicable language in the lease must be clear and understandable.

There are a number of additional considerations that should also be addressed in the applicable lease language, all of which go to the reach, application, and duration of the exclusive, as well as the remedies for breach by either the landlord or tenant. Careful drafting of these provisions is absolutely essential in order to avoid disputes later.

Just how broad the exclusive will be is a function of the bargaining power between the landlord and tenant. Usually, the anchor tenant and other major tenants will insist on broad exclusives and the landlord will find it necessary to grant them their desired exclusives to secure them as tenants in the shopping center. Smaller tenants may or may not be able to obtain the protection of an exclusive, depending on the landlord’s then current levels of occupancy and recent leasing history.

Whether an exclusive use will be granted, and if so, the terms of the exclusive, is always a critical issue of any lease negotiations. It behooves both landlord and tenant to fully understand the implications of exclusive uses and the language providing for same.

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.

Can Facebook Gripes About Work Get You Fired?

admin — Thu, 19 Jan 2012 16:11:54 +0000

The National Labor Relations Board (NLRB) has reported that certain complaints about your work environment that are posted on social media sires such as Facebook and Twitter may be considered “protected concerted activity” which an employer cannot legally fire or discipline an employee for engaging in.

The recent report from the NLRB discusses the outcome of investigations into 14 cases involving social media by the agency’s Division of Advice. In four cases in the report, the NLRB found the workers were protected under Section 7 of the National Labor Relations Act because they were discussing terms and conditions of employment with fellow employees.

In one case the NLRB sided with a luxury car salesman fired for posting photos of a sales event in which hot dogs were served, cheap food he deemed to be conveying the wrong message to potential clients. His introduction to the photos remarked that he was happy to see that the employer had gone all out for the party. The NLRB said the salesman was vocalizing the concerns of his co-workers, whose salaries were based entirely on commissions.

In another case, the NLRB sided with two restaurant employees fired after reacting online to a critical Facebook post by a former employee. The ex-worker criticized her one-time employer for failing to withhold enough money for state taxes. One fired employee pressed “like.” The other said she also owed money and used profane language to describe the employer. The report noted that the issue had previously been raised with management, and the online discussion concerned future group activity by the employees.

But the NLRB sided with a retail store that disciplined an employee who complained on Facebook about “tyranny” at work and criticized an assistant manager with a denigrating term. The posts were about an individual gripe rather than concerted action, the NLRB said.

Section 7 covers most private sector employees and applies even if the workplace is not unionized. The decisions seem to turn on whether the “complaining” involves or discusses an employment issue affecting a group of employees versus one individual employee. However, it is important to note that the NLRB’s position on social media has not been tested in the courts, and the legal issues are still developing.

View FULL Report Here

Is Mediation Worth Your Time and Money?

admin — Wed, 11 Jan 2012 22:59:29 +0000

Throughout history, alternative dispute resolution or “mediation” has been the cornerstone of peace making dating back thousands of years. In Florida, mediation was incorporated into family law in the 1980’s. Today, nearly all litigants with civil law suits will mediate their case, usually under court order, in an effort to resolve their differences. Generally, mediation is conducted after the discovery phase or most of it has been concluded and both parties and their attorneys are sufficiently educated about the dispute to be in a position to negotiate a settlement agreement.

Unfortunately, because much of civil litigation and legal billing practice has become standardized, many matters are “litigated to mediation”, meaning instead of a specific strategy for a lawsuit, whether you are a plaintiff or defendant, the goal is to go to mediation. This is not always the best and most efficient use of a litigant’s resources. In some instances, a motion to dispense with or bypass mediation and move directly to trial may, although unusual, be a better strategy. In other instances, it may be better to press for a meeting of attorneys to discuss settlement as soon as is practical such as before or during the discovery phase of litigation.

Mediation has become its own institution and mediators can either be true assets to the resolution process or, unfortunately, independent billing interests with less interest in whether a case resolves. A mediation should be more than a mere formal exercise to certify to the court that a half hearted attempt was made to settle a matter. Mediation should be a high stakes and, when appropriate, formal affair for both parties. This means both sides should have some degree of nausea at the thought of impasse or what happens next if a settlement agreement is not reached in mediation. Several ingredients serve to ensure mediation is taken seriously and include the expertise and work ethic of the mediator. This point cannot be overemphasized. If the mediator is getting educated about the law related to your case on the job, meaning during the mediation, or shows little interest in exploring creative ideas for settlement, it is going to directly impact the outcome of the mediation. Other ingredients to be considered are timing of mediation and the thorough consideration of what each side wants or needs and what can be offered for resolution.

If you are involved in a lawsuit, it is important to discuss the possibility of mediation with your attorney. You should ask whether mediation will be beneficial. In some instances, mediation may be a viable alternative to a lawsuit. You should also ask about the timing of mediation and why your attorney is recommending a particular mediator. Without strategic questions and quality planning at the outset of a civil suit, the litigant becomes a victim of the process and both time and money can be wasted.

The Florida Supreme Court has recently adopted amendments to Florida Rule of Civil Procedure 1.720, which governs mediation procedures effective January 1, 2012. The amendments deal with certifying who will appear at mediation and provide sanctions for failure to appear. The goal of these new amendments is to strengthen the likelihood of success of alternative dispute resolution in an effort to provide some relief to the jammed trial dockets of our underfunded courts.

If you have a legal matter and believe mediation may be beneficial to you, call Bogin, Munns and Munns. For over 35 years, Bogin, Munns and Munns has been serving the central Florida community in litigation and mediation. With 30 attorneys and 10 offices, we are a full service law firm ready to meet the needs of our clients.

Does a Jury Get to Know the Truth?

admin — Thu, 05 Jan 2012 14:05:20 +0000

By Bill Galione

When an accident victim goes to trial, he has to prove that his injuries are directly related to the accident at issue. Recently, a Florida appellate court has made it easier for an insurance company to dispute that a plaintiff’s injuries are related to an accident, even when the insurer has already acknowledged that the injuries were related to the accident.

The issue arose in the case of State Farm Mutual Automobile Insurance Company v. William Swindoll, which involved car insurance. 36 Fla. L. Weekly D2718a (Fla. 3rd DCA 2011). State Farm was the insurer for the Plaintiff, who was involved in a motor vehicle accident. Following the accident, the Plaintiff received medical treatment for injuries and those bills were paid by State Farm, based on Personal Injury Protection (PIP) coverage.

Later, the Plaintiff filed a lawsuit based on injuries from the accident, to recover damages that were not covered by PIP. The lawsuit was filed against the Plaintiff’s insurer, State Farm, based on Uninsured Motorist (UM) coverage that was provided by State Farm. UM coverage is designed to protect an accident victim when the at-fault driver does not have enough insurance to cover the damage that he caused.

At trial, the Plaintiff had to prove that his injuries were related to the accident, so his attorney presented evidence that State Farm had already decided that the injuries were related because they previously paid some of the medical bills under their PIP coverage. The theory was that if State Farm had already examined some of the bills for these injuries and decided to pay these bills because the treatment was related to the accident, then State Farm must have agreed with the Plaintiff’s position at some point in time, and this information would be important to the jury.

During the trial, State Farm denied that the injuries were related to the accident. The trial court judge allowed the Plaintiff’s attorney to present testimony from a State Farm employee about payment of medical bills under the PIP coverage. At the end of the trial, the jury issued a verdict in favor of the Plaintiff. The Appellate court decided that it was wrong to allow this testimony and overturned the verdict. The court added in its opinion that any testimony about payment of Medical Payment benefits was also irrelevant and would not be allowed.

With this decision, the Third District Court of Appeals is following the reasoning of the Second District in a similar case. See USAA Casualty Insurance Co. v. Shelton, 932 So. 2d 605 (Fla. 2d DCA 2006).

In effect, the courts are protecting insurance companies by preventing a jury from finding out that the insurance company believed that injuries were related to an accident on one day, but not the next.

Alimony Relief

admin — Fri, 30 Dec 2011 14:06:55 +0000

Florida law provides for a reduction or termination of alimony if the court finds a supportive relationship has existed between the recipient of alimony and a person with whom the recipient resides. While common law marriage has not been valid in Florida in over forty years and de facto marriages are also not recognized, the legislature has determined that one under an alimony obligation (the obligor) can obtain relief when the alimony recipient (the obligee) has established a supportive relationship with another.

There are many factors for the court to consider whether a true supportive relationship exists to warrant a reduction or termination of the alimony provided at the time of the final judgment of dissolution of marriage. These include, but are not limited to: (1) The period of time that the obligee has resided with the other person in a permanent place of abode; (2)The pooling of income or assets or other proof of financial interdependence between the obligee and the other person; (3) The extent to which the obligee and the other person has supported the other, including the children of one another; and (4) Whether the obligee and the other have jointly contributed to the purchase of real or personal property or jointly incurred debts.

The procedure for a reduction or termination of alimony begins with a petition filed in the court which initially granted the alimony. The burden of proof is with the obligor to establish that the former spouse has established a supportive relationship. The rationale of this law is recognition that the obligee has established a relationship that has taken the financial place of a marriage and necessarily decreases or eliminates the need for financial support from the obligor.

In addition to the factual complexity that these cases bring there are also legal issues that need to be explored. For example, what happens if the court grants the reduction or termination when the supportive relationship ends; can the court reinstate the alimony? What if the alimony was for rehabilitative purposes; does it matter if there is a subsequent supportive relationship? If you face any issues with alimony or any other family law matter, please contact Bogin, Munns & Munns, P.A.

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.

Merry Christmas To All!

admin — Mon, 19 Dec 2011 19:50:02 +0000

‘Twas the week before Christmas and all through firm, the lawyers were working hard before the holiday’s adjourn. Rulon on the phone, and Ranier in a meeting; Ryan in a deposition and Spencer taking new calls with a warm greeting.

I was preparing a letter when my phone rang with a clatter – It was our receptionist alerting me to a new matter. A young couple had walked in, unannounced and clearly distraught. I ushered them to my office, and asked how in such a sad state they had got.

The woman gently explained, holding back tears with might, that they had bought a house without attorney oversight. Having saved for so long, the deal seemed too good to be true….but throwing caution to the wind, they signed documents whose meaning they had not a clue.

After closing, they moved in with such glee. They put in new carpet, painted the walls and fixed the a/c. It was the home of their dream – or so it did seem. But their dream was soon dashed – just after the check was cashed.

We learned, said the man, by a knock on the door, someone else claimed that he still owned this house, as before. He declares there was a forgery of the signature on the deed, and that it does not have the number of witnesses we need! We now have a fear we will lose all that we have put into this house. We don’t know if this man is honest, or just a greedy louse!

I examined their papers and was sorry to learn, a problem existed I was able to discern. The deed was invalid and the lack of two witnesses was true. When I delivered this news, the young couple was blue.

“How could this happen?” “How could this be?” “The documents were prepared by a man to whom we paid a modest fee!”

“Was he a lawyer?” I inquired, feeling a growing sense of dread. “Frankly, we didn’t think to ask” they dolefully said.

“It was cheaper this way – we thought a real lawyer would cost just too much”, they claimed. “But an attorney’s fee is small price to pay to safeguard such a large investment”, I explained.

To provide legal advice, one must go to law school, and only a trained lawyer can properly explain a document, statute or rule. A lawyer has the knowledge to apply this training to a practice area he can master. But the hiring of a non-lawyer is simply a recipe for disaster.

By trying to save a few bucks, the couple lost the property whole. Gone was their money, their toil and home-ownership goal. They learned a tough lesson at the expense of this cheating:

The hiring of an attorney is necessary to guide you through any legal proceeding!

The next time you intend to buy, sell, or rent, consult with a lawyer and learn about the pitfalls to circumvent. A lawyer can advise you, guide you and provide counsel. A lawyer will prepare your documents to make sure your transaction comes out well.

The law firm of Bogin, Munns & Munns has offices throughout this great State. We’re here to represent you and provide services first-rate! We have lawyers that can help you in areas such as real estate, probate, taxation, and litigation. And our personal injury department can help if you are injured in a car, at work, or even on vacation.

From all the lawyers and staff at Bogin, Munns & Munns, P.A. our thanks for your continued trust is sincere. Merry Christmas to all, and we look forward to seeing you in the New Year!

Can I be sued because of something my child did?

admin — Fri, 09 Dec 2011 19:37:47 +0000

As is the case with most legal questions, the answer depends on the facts. At common law (the law which derives from old English court decisions based on societal customs), a parent was not liable for the wrongful acts of their children. Because children do not usually have any significant financial resources of their own, a person harmed by the child’s negligent or willful conduct was simply out of luck.

To soften this harsh result, over the years states have passed laws that hold parents liable for the wrongful acts of their minor children under certain circumstances. In Florida, the legislature has passed two statutes that specifically address parental liability. The first is Florida Statute Section 322.09. For those of you that have signed an application for your child to obtain a driver’s license, you are already subject to this statute, which states, in relevant part:

Any negligence or willful misconduct of a minor under the age of 18 years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor… [and such] person shall be…liable for any damages caused by such negligence or willful misconduct.

The other statute is Florida Statute Section 741.24 which covers liability for a child who vandalizes or steals property, and states that an affected person:

…[S]hall be entitled to recover damages…from the parents of any minor under the age of 18 years, living with the parents, who maliciously or willfully destroys or steals property…

This statute often is used when a student vandalizes school or other government property.

Additionally, courts in Florida have held parents liable in situations where they had a legal duty to supervise or control the conduct of their child. This is a tricky analysis which has been the subject of much confusion in the courts. The controlling case in Florida is a 1955 decision of the Florida Supreme Court. In this case the Court decided that a parent can be held liable for their failure to control a child only when that child commits an act that the parent knew, or should have known, the child was likely to commit. In other words, under Florida law, the parent must have knowledge of a past course of conduct that would make it reasonably foreseeable that the child would harm another unless the parent took active measures to control the child’s conduct. This standard is frequently used when attempting to hold the parents of a “bully” liable for harm he or she causes to another. If the parents had knowledge of these particular kinds of acts and did nothing to prevent the situation from occurring again, they can be held liable.

The bottom line is that you as a parent need to understand that in certain situations you can be sued for your child’s wrongful acts. The law, as it should, does not allow you to simply turn a blind eye to bad behavior that harms others.

Sobering Thoughts This Holiday Season

admin — Wed, 30 Nov 2011 18:13:28 +0000

Each year 17,000 people are the victims of drunk-driving accidents. Someone is killed every 45 minutes and someone is injured every two minutes. Each year there are 900,000 DUI/DWI arrests or which approximately one-third are from repeat offenders. 38% of all Christmas-time car accident deaths and 54% of all New Year’s car accident deaths are alcohol-related. In the United States, drunk driving is the leading criminal cause of death. Drunk-driving collectively costs us $114.3 billion per year.

Our firm, myself as well as all other trial attorneys relish the opportunity to represent victims of drunk-driving accidents. Collectively we are saddened by the grief that can be caused by such an irresponsible act, but we know that generally the potential recovery is greater than in other personal injury claims. Under Florida law, in addition to compensation for economic losses and non-economic losses such as pain and suffering, the victim of a drunk-driving accident may also be entitled to punitive damages. In the case of Ingram v. Pettit (340 So. 2d 922 (Fla. 1976)), a plaintiff had been injured when the defendant hit her vehicle from the rear while it was standing at an intersection in a well-lit area. The evidence demonstrated that the defendant’s vehicle had not been moving at an excessive rate of speed, had not swerved or veered outside the marked lines of traffic, and had in fact been normally operated until the time of the collision. The plaintiff sought punitive damages solely because the driver’s blood alcohol level exceeded the level at which the legal presumption of intoxication arises. The Florida Supreme Court held that the voluntary act of driving while intoxicated evidences a sufficiently reckless attitude for a jury to be asked to provide an award of punitive damages.

Liability insurance that includes bodily injury indemnification coverage also requires the insurance company to defend its insured in any claims arising from alleged acts of negligence, including civil claims arising from drink driving. However, liability insurance does not include paying claims for punitive damages. Accordingly, while a drunk-driver’s insurance may pay compensatory damages, the drunk driver may still be exposed to punitive damages for which he or she would have no coverage. In that event, if the drunk-driver has sufficient assets in which to warrant pursuit of those damages, then those assets would be at risk. Under this scenario, the insurance company typically advises the insured to retain their own personal counsel. As the insurance carrier does not pay for this counsel—that is a cost born by the drunk-driver.

The holiday season is meant to be, among other things, fun. Regardless of one’s personal beliefs and preferences, alcohol is legal and is often included in that fun. However, if alcohol is a part of your holiday merrymaking, then remember to plan in advance by arranging for safe transportation. The price, if any at all, would be miniscule when compared to the heartache caused by a preventable tragedy.

On behalf of all of us at Bogin, Munns & Munns, please accept our best wishes for a safe, healthy, and happy holiday season.

Sources

National Highway Traffic Safety Administration

National Center for Statistics and Analysis

M.A.D.D.

– 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. He welcomes questions and comments regarding the above and can be reached at szirkle@boginmunns.com

The Importance of Preserving Evidence in Personal Injury Cases

admin — Mon, 14 Nov 2011 22:36:14 +0000

Your personal injury claim may be won or lost based upon the preservation of critical evidence to your case. With the advent of pocket-sized digital cameras and cell phone cameras, preserving accident evidence has never been easier.

If you have been involved in a car accident and are physically able to do so, it is tremendously helpful to already have photographs of all vehicles involved in the collision from the crash scene when meeting with your personal injury lawyer for the first time. Don’t be shy about taking photos. Don’t just take one or two photos, but instead take as many as possible. When taking photos of the vehicles involved, it is beneficial to take photos at different angles and distances. In addition, photos identifying the road conditions at the time of this incident, skid marks, and debris in the road are valuable to your case because they can help prove which driver or drivers were at fault for the crash, and will also help to show the extent of the force that not only your vehicle sustained- but that you sustained as well. While our office will certainly take property damage and injury photos upon our representation, photos taken at the scene immediately after the incident will preserve a great deal of evidence.

If you have been involved in a premises liability accident such as a slip-and-fall or trip-and-fall accident, taking photos of what caused your accident is very important. If you have a cell phone camera handy, try to take as many photos as possible of the substance or object that caused you to fall. I realize that your pain and the ability to obtain medical attention is your first priority after an accident. However, in 2010, the Florida legislature heightened the standard for injured people involved in slip-and-fall accidents to recover their damages. Under the new law, injured people now have the burden of proof to show that a company or property owner knew or should have known of a hazardous condition on its floors or walkways and failed to correct this condition. This burden can be met by showing that a substance had been on the floor for a long period of time or by showing that there is a regular reoccurrence of the condition.

By taking photos of the substance on a floor, this evidence can be preserved immediately after an incident. Further, when a store learns of a slip-and-fall accident, management will usually direct its employees to clean-up the substance immediately thereafter to prevent subsequent accidents, but which will also destroy the evidence you need to prove your case. If you can obtain photos of a spill that shows cart tracks through it or pieces of melting ice prior to the spill being cleaned-up, you can help show that the spill had been on the floor for a considerable amount of time to prove liability on the part of the store or property owner. Because store owners must also warn of dangerous conditions, it is also good to take photos of the surrounding area to show that there were not any yellow wet floor warning cones or signs in the area where your accident occurred. Photos taken immediately after trip-and-fall accidents, such as of cracked or chipped concrete, are also important in preserving evidence of the scene.

It is also important to preserve and put aside the shoes that you were wearing at the time of a premises liability accident, and to discontinue wearing them at least until the end of your case. Additional wear-and-tear on the soles of your shoes may provide the Defendant with a defense that your shoes did not provide enough traction. Also, preserve any stained, torn, or destroyed clothing following any type of accident or incident- including dog bite incidents.

If you preserve evidence immediately after an accident or incident, you will be able to later provide this information to your personal injury attorney to help prove your case.

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

Age Discrimination

admin — Wed, 19 Oct 2011 21:57:51 +0000

Central Florida has a large population of older workers. Therefore, it is not unusual for age discrimination claims to arise in the workplace. Age discrimination involves treating someone (an applicant or employee) less favorably because of his age. The federal Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are age 40 or older. The ADEA does not protect workers under the age of 40. However, the State of Florida’s civil rights statute (the Florida Civil Rights Act of 1992, Florida Statutes, Chapter 760) protects all workers and applicants from age discrimination regardless of their age—whether they are over 40 years of age or under 40 years of age. Claims of age discrimination by younger workers or applicants are rare. But, they do occur.

Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

It is unlawful to harass a person because of his or her age. Harassment can include, for example, offensive remarks about a person’s age. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). Be sure to document these events.

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age.

If you believe that you are being discriminated against because you are older or younger, then contact the law firm of Bogin, Munns & Munns, P.A. to talk to one of its employment attorneys regarding your possible claim for age discrimination.

– Dan Perez is an Employment & Labor Law Attorney with Bogin, Munns, & Munns, P.A., a full service commercial law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida. Mr. Perez welcomes questions and comments regarding the above and can be reached at dperez@boginmunns.com.

Under What Circumstances Is Recovery Limited for Wrongful Death In General Negligence Cases

admin — Fri, 14 Oct 2011 20:30:01 +0000

Florida’s Wrongful Death Act 768.18 limits recovery for wrongful death to “Survivors” which is strictly limited to the following: the decedent’s lawful spouse, children, parents, and when wholly dependent on the decedent for support or services, any blood relatives and adoptive sisters and brothers. It includes the child born out of wedlock of the mother, but not a child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support. If a legal “survivor” exists there are very few limitations to the recovery of damages for personal injury where the decedent died as a result of the tortfeasor’s wrongful act.

On the other hand, if there are no legal “survivors” as defined above, the action is limited to the medical bills and funeral expenses of the decedent. Florida Statute 46.021 provides an odd exception to this limitation. Where the death did not ultimately result from the personal injury caused by the tortfeasor, a claim for pain and suffering and other damages may continue. An example of such a situation is where a plaintiff suffers personal injury as a result of a car accident or fall, but the plaintiff later dies from an intervening cause, such as the negligence of another unrelated defendant. This scenario necessarily poses questions of foreseeability and proximate cause, in addition to the question of what caused the decedent’s death since more than one party may be negligent and one of the negligent parties may not be liable for all the damages suffered by a claimant when some separate force or action is the active and efficient intervening cause, sole proximate cause, or independent cause of the claimant’s injuries and/or death. This is generally a question of fact for the jury when a jury trial has been demanded.

In summary, it may be frustrating for loved ones or named heirs to learn that they are not entitled to make certain claims after a death resulting from personal injury. It is necessary to consult an attorney to determine the damages that are recoverable under Florida law, and it is also imperative to recognize that the time to make a claim may be as short as two years or less depending on the nature of the claim. In the case of nursing home negligence or medical malpractice, other provisions including pre-suit obligations exist, so time is of the essence in consulting a professional to discuss and ascertain the legal provisions applicable to each cause of action.

- Pamela 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

Buying Real Estate With Cash

admin — Tue, 04 Oct 2011 17:39:37 +0000

I recently read that cash closings are increasing throughout the country. Our firm likewise has seen an uptick in cash transactions. If you are buying real estate with cash, make sure you have an Orlando Real Estate Attorney to assist you in your due diligence. When purchasing with a bank loan, there is often a layer of comfort for a buyer in the fact that the bank is going to perform some level of due diligence before it makes a loan secured by real estate. Much of the due diligence that a lender does should also be performed by a buyer, especially if there is no lender. For example, a lender will have stringent requirements with respect to the title insurance policy it gets out of a closing. Likewise, a buyer should be meticulous and careful in examining the title policy it gets for its interest in the property.

– 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.

Selecting The Right Law Firm

admin — Mon, 03 Oct 2011 16:45:25 +0000

Virtually all individuals and businesses at some point in time (and some on a regular basis) require the services of a law firm. Selecting the right law firm is critical. Here are some pointers that can help in making that important decision:

1. Trust. There is probably no other element in the attorney/client relationship that is more important than “trust.” You must feel a high level of trust in the attorney: trust that the attorney is competent; is honest; and has your best interests at heart. The trust factor goes both ways: the attorney must trust that the client will be truthful; will pay for services rendered; and will listen when the attorney explains the legal ramifications of the issues involved.

2. Competency. You must be confident that the attorney is competent and experienced in the area of the law that is involved in the representation.

3. Service. Your satisfaction level with your law firm will be largely determined by the level of service that is provided. Service involves things such as returning phone calls promptly, keeping the client informed of the status of the matter, and simple courtesies. Most legal issues involve a certain measure of stress or even discomfort; being treated with courtesy and in a responsive manner will go a long ways toward ameliorating your stress and discomfort.

4. Reasonable Fees. These days charges for attorneys’ fees are all over the place. On almost any legal matter if you check with different sized law firms with different levels of expertise, you will find that the range of charges can differ greatly. For the most part, the old adage applies: “you get what you pay for.” Even so, there are instances where some law firms charge fees that are unreasonable under the circumstances. In assessing whether the proposed charges are reasonable, there are many factors that go into the equation; expounding on those in detail here is beyond the scope of this article. Suffice it to say that the experience and expertise of the attorney, the complexity of the matter and the time required to be devoted by the attorney are key factors.
The above considerations are all important in the selection of an attorney. What can you do to evaluate the prospective law firm in the above four areas?

There is no crystal ball that you can look into to get the answers. There are some steps that you can take, however; the following is a list of some of them:

1. Interview the attorney, asking probing questions about all of the above.

2. Consider the law firm’s reputation in the community by asking friends, relatives and neighbors if they have had any experience with the law firm.

3. Research on line what others have said about the law firm (use caution here, however, because sometimes a disgruntled client, who has in fact been served well by a law firm, but who acted unreasonably himself in connection with his relationship with the law firm can spread false and unfounded statements about an otherwise very good law firm).

4. Inquire with the Florida Bar regarding available information pertaining to disciplinary actions against the law firm.

None or all of the above is foolproof. Certainly, an eye to eye interview with your prospective attorney, wherein you assess each of the foregoing factors, as supplemented by your other research, will go a long way toward making the right decision.

– 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.

Litigation isn’t just litigation

admin — Mon, 03 Oct 2011 16:25:22 +0000

If you have ever had to file or defend a lawsuit as an individual or as a small business owner, you may recall the stress and anxiety that can be associated with the process. Litigation isn’t generally fun for the parties involved and in today’s economy, the assessment of resources required to prosecute or defend a case versus the expected outcome should be a critical discussion point.

If you have just become a party to a lawsuit, early, strategic planning between you and your attorney can go a long way to alleviate anxiety because you will have developed a plan based on the outcomes you wish to pursue because they are valuable to you. More specifically, you will have a clear assessment of the road ahead and feel more in control of the process.

Litigation can take twists and turns at times that are beyond your control. However experts agree that clients and their counsel who are strategic in their thinking and planning early will often have a much more predictable and successful outcome than those that do not take charge of the litigation process. This happens in large part because these clients and their counsel have clearly and frankly communicated about the specific outcomes that are likely along with the risks and rewards of pursuing each of those outcomes. They have also developed early a practical roadmap based on quality data, assessment and communication with the adverse party when possible, and consulted experts when necessary.

Tactics in litigation absolutely vary from case to case and with the resources and desired outcome of each client. Sometimes, a quick resolution translates into a victory for a client. In this instance, it may be better for the attorneys of both parties to meet early and discuss possible resolutions to the case. On other occasions, where parties are less agreeable, a case may need to proceed to mediation or trial. In either of these instances, a healthy and in depth discovery phase may be critical and the costs associated with that phase should be discussed in light of the potential outcome of improving the case. More specifically, a well executed discovery phase will often create the leverage needed to resolve a dispute in mediation and avoid the cost of trial. In each of these phases, key discussions will be helpful to minimizing your risk and maximizing your understanding and chances for a fair and of favorable outcome.

Attorneys are tacticians and each phase of litigation offers the attorney options for using many tools in their toolbox to either prosecute or defend a case. However those tools are not always right for each case. For example, deposing each witness in a case may be ideal but cost prohibitive to the client. Another example is in motion practice. Both clients and counsel must consider whether filing a motion will add value to a case as a whole and be worth the expense to a client.

In conclusion, with 9 offices and approximately 30 attorneys, Bogin, Munns and Munns, P.A. has been offering this type of strategic, legal planning and advice to clients for over 30 years. Please call today.

– Jeremy Hill, 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. Hill works out of the Daytona office of the firm and welcomes questions and comments regarding the above and can be reached at jhill@boginmunns.com

Does the Jury Have to Believe My Doctor?

admin — Mon, 03 Oct 2011 13:23:35 +0000

The Florida Supreme Court says, yes, unless there is a good reason not to. In a recent decision, Howard B. Wald, Jr. v. Athena F. Grainger, 36 Fla. L. Weekly S211b (Fla. 2011), the Court analyzed the trial of Howard B. Wald, Jr.. Mr Wald was seriously injured in an accident on September 12, 1999. His doctor testified that he injured his neck, back, right arm, foot, and thigh. As a part of the litigation process, the defendant and his insurer sent Mr. Wald to a doctor of their choice. The defendant doctor testified that Mr. Wald was injured in the accident, but he believed that only the thigh injury was permanent.

Based on the nature of his injuries, Mr. Wald was asking the jury to award a fair and reasonable amount for all of the pain and suffering that he endured, due to the accident and his related injuries. Under the law, Mr. Wald is only entitled to pain and suffering damages if his injury is permanent.

At the end of the trial, the plaintiff’s attorney asked the judge to instruct the jury that Mr. Wald, as a matter of law, had a permanent injury to his thigh. This request was based on the idea that a reasonable jury would not be able to come to any other conclusion. Despite the testimony of the doctors, the defendant’s attorney told the judge that it would not be proper to determine that the injury must be permanent, because this was a decision for the jury and it was still possible for a jury to ignore the testimony of the treating doctor and decide that there was no permanent injury.

The judge in the trial court decided that the plaintiff’s attorney was right, and told the jury that they must conclude that the injury to the thigh was permanent. The next court to review the decision, the First District Court of Appeals, disagreed with the trial court, believing that the judge should have allowed the jury to decide the issue of permanency. The Appellate Court stated, “any testimony regarding permanency, including uncontradicted testimony” could be rejected by a jury.

Finally, this case was reviewed by the Florida Supreme Court, which said that the trial court was right, and the Appellate court was wrong. The Court said that if a jury is going to reject the evidence of the plaintiff’s doctor, there has to be a reasonable basis for rejecting the testimony. For example, there must be some contrary testimony, conflict of evidence or impeachment of the witness. In this case, because the doctors agreed that Mr. Wald had a permanent injury to his thigh, and there was no contrary evidence, the jury would not have been able to reject the testimony of the doctor.

So the Court concluded, at least in this situation, that you have to believe the doctor.

– 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.

Buying Real Estate With Cash

admin — Mon, 03 Oct 2011 13:19:38 +0000

What happens when the pension is changed without adequate notice or the notice is not sufficient or misleading?

admin — Wed, 14 Sep 2011 18:14:37 +0000

There are recent developments that provide relief to participants and beneficiaries of pension plans when the pension benefit is changed. The law that governs pensions provided through non-governmental employers is The Employee Retirement Income Security Act (ERISA). The law had been
unsettled as to the timing and content required, and what remedy was available if there was a violation of the law. Changes by statute and a recent ruling by
the U.S. Supreme Court have clarified this important issue.

When a significant reduction in the rate of future benefit accrual is to occur by plan amendment a written notice is to be provided in a manner calculated to be understood by the average plan participant. The notice is to be provided within a reasonable time before the effective date of the amendment. In the event of an intentional failure to give timely notice and sufficient information, or a failure to provide most of the information to most of the individuals entitled to receive the amendment, or other egregious failures by the plan as to notice, relief will be provided by the courts. This relief is in the form of providing benefits calculated as the greater of, (1) the benefits one would have been entitled without regard to the amendment, or (2) the benefits under the plan with regard to the amendment. In other words, if the pre-amendment benefit is better the beneficiary could obtain those benefits. In essence, the amendment would not be effective if the timing and content are not in compliance with the law.

You may think that this has been or should have been the law all along but the law had been unclear and court rulings had lead to harsh results in the past. For example, in one case the employee retired effective the first of the month after he submitted his resignation. The company announced on the first of the month (the employee’s retirement day) they had amended the plan a few weeks earlier but the amendment was effective immediately. Now the retiree would receive substantially less than had his retirement date been one day earlier. His claim was dismissed since the law at the time did not require pre-notice of the effective date but only reasonable notice after the amendment decision was made.

The recent Supreme Court ruling provides additional remedies in the event of a misleading plan amendment. Those remedies include the power to reform the pension plan to eliminate false or misleading information, and compensation to those beneficiaries or participants who were caused harm as a result of the false or misleading information. The Court went so far as to state that there may be circumstances where one would be entitled to relief if they can show harm and causation even without showing reliance by the reading of the document. The Court doubted Congress ever intended to bar relief when a pension plan is providing false or misleading information when the tainted information is being passed around though informal workplace discussions.

– Edward Gay, Esq., is of counsel 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 egay@boginmunns.com

Why Should I Have Bodily Injury Coverage?

admin — Fri, 19 Aug 2011 21:05:35 +0000

B/I is short for Bodily Injury coverage. Put simply, Bodily Injury coverage provides insurance coverage for accidents that are your fault. Even a safe driver can cause a motion vehicle accident. If you have Bodily Injury coverage, you have insurance that will cover the costs of the injuries that the motor vehicle accident causes to others.

The State of Florida does not require Florida drivers to have Bodily Injury coverage. People may be tempted not to purchase this coverage; because they cannot afford it and/or they mistakenly believe that there are no consequences for not having Bodily Injury coverage. Just because you do not have Bodily Injury coverage does not mean that you will not be sued for injuries. If you cause an accident and do not have Bodily Injury coverage, the person that you injured and/or the injured person’s Uninsured Motorist carrier may still obtain a judgment against you. You will be personally responsible for paying this judgment.

Please do not be deceived by thinking that you are “judgment proof”. You may not have assets sufficient to pay a judgment all at once, but you can nonetheless be penalized by a judgment against you. Once a judgment is obtained against you, the person who obtained the judgment can submit the judgment to the Bureau of Financial Responsibility. Please see http://www.flhsmv.gov/ddl/frfaqcrash.html. Upon receipt of the judgment, the Bureau of Financial Responsibility can suspend your license for up to 20 years or until the judgment has been paid or satisfactory arrangements to pay the judgment have been made.

Do not let this happen to you. Bodily Injury coverage helps protect your assets and your driving privilege. Bodily Injury coverage also permits you to purchase Uninsured Motorist coverage. Uninsured Motorist coverage is essential for every Florida driver.[1] Uninsured Motorist coverage protects you from damages caused by someone else. You cannot purchase Uninsured Motorist coverage without purchasing Bodily Injury coverage. The amount of Uninsured Motorist coverage that you purchase must be equal to the amount of Bodily Injury coverage you purchase. Thus, if you only buy Bodily Injury coverage of $10,000.00; you can only have Uninsured Motorist coverage of $10,000.00.

Anyone can cause a motor vehicle accident or be in a motor vehicle accident. In order to protect yourself from either situation you must have Bodily Injury coverage. Bodily Injury coverage is not a frivolity. It is a necessity.

– Aaryn Fuller, Esq., is an experienced Orlando 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.

[1] Please read the articles on this Blog which discuss Uninsured Motorist coverage in greater detail. These articles are helpful in explaining what Uninsured Motorist coverage is and why it is so important.

Residential Tenant Rights in Florida – Early Termination

admin — Tue, 16 Aug 2011 19:54:01 +0000

In most cases, if you have a written lease for real property, it will state terms under which you may break the lease early. Such terms may include a specified period of rent which must be paid if early termination notice is given or a specific dollar amount to be paid by the tenant for breaking the lease. This payment may be referred to as “an early termination fee” or as “liquidated damages.”

However, some leases do not contain such provisions. In those cases, the tenant is obligated to pay the full amount of rent on the lease through the original stated termination date. Once vacated, the landlord does have an obligation to mitigate its damages and to attempt to re-rent the space. The amount owed by the original tenant for the early termination will be offset by any amount of rent which the landlord collects upon renting the vacant space to a new tenant. Because of market conditions, less than enthusiastic efforts by the landlord, or other reasons, the new tenant may wind up paying a lesser amount than the original tenant who must then pay any deficiency to the landlord through the original termination date stated in the lease. Because this amount is purely speculative when you give notice of the early termination, it may be advisable to discuss your desire to leave early with the landlord and attempt, at that time, to negotiate a fixed early termination fee (and release to be signed by both parties).

The real estate attorneys of Bogin, Munns & Munns, P.A. can help you review and understand your lease before you sign it as well as to help you understand any potential costs or risks you may face.

TAGS: residential lease, tenant, landlord, termination, breaking the lease, liquidated damages, termination fee, offset, mitigation

Second Wife Loses Homestead Protection Because She Bought Homestead with Proceeds from Property Husband Placed in Trust for Children Prior to His First Wife Dying

admin — Fri, 12 Aug 2011 20:05:48 +0000

The homestead protection that homeowners have in the state of Florida helps prevent Floridians from losing their homes due to debts owed to creditors. However, Florida law does allow equitable liens to be imposed on homestead property, particularly in cases of fraud. In the recent case of Hirchert Family Trust v. Hirchert, 36 Fla. L. Weekly D1290 (Fla. 4th DCA 2011), the Florida Appeals Court found that the Husband violated his fiduciary duties as Trustee, so that the beneficiaries of the Trust were entitled to an equitable lien against his 2^nd wife’s homestead property.

In that case, the Husband and his first wife lived in California. They created two trusts which provided that upon the death of the first spouse, all their assets, including their marital home in California, would be divided into a Survivor’s Trust for the benefit of the 2^nd spouse to die and a Residuary Trust for their children. The first wife died and pursuant to the trusts, the marital home was divided between the two trusts with 75 percent placed in the Residuary Trust for the children and the remaining 25 percent was placed in the Survivor Trust.

The Husband was Trustee of both trusts, and the Residuary Trust only permitted him to access the earnings of the Residuary Trust, but not the assets held in the trust. He married a second wife and signed a deed transferring the title of the marital home from the Residuary Trust to himself, which violated the terms of the trust. This transfer was a breach of his fiduciary duty as Trustee. Later, he sold the home and used the proceeds to purchase a new home with the second wife. They subsequently sold that property and bought another one in California as joint tenants. The husband died, and his second wife sold their home and used the proceeds to purchase a home in Florida.

The successor trustee of the residuary trust subsequently filed suit against the second wife to require her to convey to the Residuary Trust 75 percent of the proceeds that the Husband obtained from the sale of the original home. The court found that the Husband had breached his fiduciary duty as Trustee by conveying the title of the original home from the Residuary Trust to himself and held that 75 percent of the proceeds were traceable to the second wife’s current Florida homestead property.

The Florida Appeals Court held that the Husband’s breach of his fiduciary duty was “constructive fraud” and thus may form the basis to apply the equitable lien exception to the homestead protection rules. Accordingly, the court held that the second wife’s homestead property was subject to an equitable lien for 75 percent of the proceeds that the Husband had obtained from the sale of the original home.

If you need assistance with real estate, probate or trust litigation, you can call the law firm of Bogin, Munns & Munns for a consultation at (407) 578-1334.

– 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

I am Hurt, but Do Not Know if I can Sue?

admin — Wed, 10 Aug 2011 19:30:43 +0000

Most people that have come to me have already made a decision that they think they should be compensated for their injury. However, they may not be sure the law provides a way for them to recover.

First, know that most claims are settled without a lawsuit being filed and the person who caused the injury pays nothing. The settlement money usually comes from an insurance policy they have purchased to protect themselves for such mistakes. When you first go to a lawyer, one of the first things the lawyer will do will be to establish whether there is insurance coverage. If there is not, you will likely be discharged and the lawyer will no longer represent you.

When you have been injured through the fault of another you have the right to recover for your injuries. Whether you fell because the other person or company did not properly maintain or clean their floor, or because they ran a red light, if they injure you as a result, they are responsible to pay you for the losses you have as a result. In particular, you can recover past and future medical bills, past and future lost wages, and money for the past and future loss of the enjoyment of life (pain and suffering).

You should note that you are only going to recover money. Companies are not likely to admit they are wrong, or agree to change their ways. However, we always hope that the person or company that caused your injury will take steps to prevent it from happening to someone else in the future. This is one of the key benefits of our tort system that is often ignore by the media.

Of course you can only recover these things if you have 1) a case where the other person did something wrong, and 2) at least some damages as listed above, and 3) some source of money (usually insurance) to pay for the damages. If you do not have all three, you do not have a viable case to pursue.

If you do have all three you have the choice to pursue the case or not. To pursue it a lawyer will make a claim for you by presenting facts about how your injury happened, and the injury or injuries themselves. The insurance company will then (hopefully) respond with their initial offer (which will be ridiculously low) and you will begin a series of back and forth negotiations which will hopefully result in a payment to you that is fair.

As a result, I encourage you to make a claim if you have been hurt by the negligent actions of another party. If you are not sure whether you can make such a claim, or are not sure who the claim would be against, any good Personal Injury lawyer should be more than glad to discuss the matter with you at least briefly, and hopefully give you some advice as to what rights you have and what damages you can recover. They will not likely be able to tell you how much you can recover, but they can talk about the different types of damages you can recover.

– Mark Cornelius, Esq., is an experienced Orlando 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

Hazards of Sleep-Deprived Driving

admin — Mon, 08 Aug 2011 13:00:42 +0000

Lack of sleep can cause cognitive impairment and negatively impact your ability to safely operate a motor-vehicle. Sleep deprivation is a major source of motor vehicle accidents. Studies have shown that sleep deprivation can impair the human brain as much as the consumption of alcohol.

According to the United States Department of Transportation, 23% of adults have admitted to falling asleep while driving. Furthermore, male drivers admit to falling asleep behind the wheel twice as much as female drivers.

The National Highway Traffic Safety Administration lists sleep-deprived driving as a factor in more than 100,000 crashes, resulting in 1,550 deaths and 40,000 injuries annually.

Sleep deprivation affects driver’s abilities in several ways:

1. Impairs judgment

2. Impairs coordination

3. Lengthens reaction time

4. Substantially increases one’s risk of falling asleep at the wheel and causing a traffic accident and/or fatality.

It is also important to note that over the road truck drivers are heavily impacted by driving while drowsy. Driver fatigue is a contributing factor in 12% of all crashes involving truckers. Because of the size of the commercial trucks and their cargo type, traffic fatalities are more likely and the risk of serious injury also increases as the size of the truck and cargo increases.

Not only are over the road truck drivers subject to long hours of service but as many as 28% (Federal Motor Carrier Safety Administration) suffer with sleep apnea. Drivers with Obstructive sleep apnea have a 7 fold increased risk of being involved in a motor vehicle crash. It is estimated that 2.4-3.9 million licensed commercial drivers in the US have Obstructive sleep apnea, placing them at greater risk of falling asleep at the wheel.

Fatigue is such a very real risk for over the road truck drivers that the National Transportation Safety Board has recommended that the Department of Transportation explore the creation of heavy-duty vehicle safety technologies mandatory, including fatigue monitoring systems.

One thing is certain, tired drivers, whether they drive for a living or for pleasure, can be lethal. Research has shown that if you drive tired, it may be impossible to stop yourself from eventually falling asleep at the wheel. Human beings respond to acute fatigue by sleeping. Falling asleep is an automatic response triggered by physiological need. The most common cause of fatigue is chronic short sleep.

So what can you do to prevent sleep deprived driving?

1. Make sure to plan ahead. If you are going to take a long trip, make sure you factor in adequate rest stops and share the driving if at all possible.

2. Make sure you have a good night’s sleep before going on the road.

3. If you know you suffer with sleep apnea, be aware that you are at greater risk for falling asleep behind the wheel.

4. Don’t skip breaks just because you were help up in traffic or if you are behind schedule. Better late than never.

5. Drink caffeinated beverages to help, but this is only a temporary fix.

6. If you are a CDL licensed driver operating commercial motor vehicles make sure to strictly comply with all Hours of Service (HOS) regulations and determine if you may suffer from sleep apnea due to the increased risk of sleep apnea among truck drivers.

7. The only true solution to be alert and continue driving when feeling drowsy is to stop and sleep. When you wake up make sure to wait a while before driving as driving immediately upon waking is dangerous as one is still groggy for a period of time.

If you have been injured in an accident involving a defendant suffering from sleep deprivation at the time of the accident or injured in an accident involving a commercial truck, please contact our firm so that we may assess your claim.

- Alida Darias, Esq., is an experienced Orlando 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

Registering Your Mark on the Supplemental Register

admin — Thu, 04 Aug 2011 06:00:19 +0000

The Supplemental Register is the United States Patent and Trademark Office’s (“USPTO”) secondary register of trademarks. This secondary register permits the registration of trademarks that do not otherwise qualify for registration on the primary register of trademarks called the Principal Register. The only requirement for registration on the Supplemental Register is that a mark is capable of distinguishing goods or services.

Many of our clients have applied for registration of their trademark on the Principal Register only to be denied such registration by the examining attorney from the USPTO as “merely descriptive”. Except in certain circumstances, a trademark cannot be registered on the Principal Register if the mark’s name merely describes the goods and/or services it identifies to the consuming public.

An alternative option for clients is to register this mark on the Supplemental Register. The benefits of registering the mark on the Supplemental Register are:

It permits the applicant’s non-distinctive mark to acquire “secondary meaning” or “acquired distinctiveness”, which means that the mark becomes known to consumers as a designation of source for the applicant’s particular goods or services due to the mark’s long-term and extensive use.
After five years on the Supplemental Register, the mark may qualify for the Principal Register due to it having acquired distinctiveness. The applicant may then file a new application for registration on Principal Register.
The owner may use the registered trademark ® symbol, sue in federal court, and take advantage of certain international treaties.
The owner may also block subsequent applications for confusingly similar marks for related goods or services.

Registration on the Supplemental Register, however, does not provide the following benefits a mark obtains when registered on the Principal Register:

Does not afford the owner the exclusive right to use the mark in commerce in connection with its identified goods or services.
It does not serve as prima facie evidence of the validity of the registered mark or of the trademark registrant’s ownership of the mark.
It may be an admission that the mark is not inherently distinctive.
It will not stop importation of counterfeit products.
Supplemental registration cannot become incontestable.
A trademark must actually be used in commerce at the time the applicant seeks registration on the Supplemental Register as opposed to “intent to use” applications permitted on the Principal Register.

It is imperative that person or entity seeking to register its mark with the USPTO consult a competent trademark attorney to determine their legal options with said registration.

– Henry M. Cooper, Esq., is a shareholder and handles the intellectual property 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.

Residential Tenant Rights in Florida – Security Deposit

admin — Tue, 02 Aug 2011 17:46:57 +0000

It is recommended that you sign a written lease whenever you rent property so that you have a record of the terms which have been agreed upon. The written lease should include specific terms as to the amount of rent, the length of the lease term, the amount of the security deposit, and the amount of notice which must be given if you want to end the lease early, among other things. These lease terms should be reviewed carefully so that you understand your obligations and rights.

In Florida, after you move out, a residential landlord has 15 days in which to return your full security deposit (if any) or has 30 days in which to send you written notice that some or all of the security deposit will be retained for damage beyond normal wear and tear. Upon receipt of the list of itemized deductions, the tenant has 15 days to send a written notice to the landlord that there is a disagreement about the amount being withheld. If the parties cannot settle this dispute on their own, the tenant can file a complaint with the Small Claims Court to resolve the matter.

The Orlando real estate attorneys of Bogin, Munns & Munns, P.A. can help you review and understand your lease before you sign it as well as to help you understand your rights if the landlord does not comply with its obligations.

Finding and Understanding Information

admin — Fri, 15 Jul 2011 13:00:33 +0000

With today’s technology, it can be easy for most anyone to find a lot of the information that you need without the assistance of an expert. However, you may need an expert to determine what information you actually do need and then to explain to you the information which you have found.

For example, before buying a piece of real property, it would be important to know if there are any liens on the property, who owns the actual title to the property, and if there are any easements on the property which could decrease its value. A real estate attorney handles these tasks on a daily basis and would be an invaluable resource for you.

Or, if you are buying the assets of a company, it would be important to know if the company has used those assets as collateral on a loan. If they did and then defaulted on the loan, the lender may be able to repossess those purchased assets from you even after the purchase leaving you to pursue the financially-troubled seller for a refund of your money. Business law attorneys conduct such lien and judgment searches and are well aware of what to be looking for before proceeding with a transaction.

Before deciding to spend money to sue someone, it may be worth conducting an asset search to determine if the person to be sued would be able to pay any money on a judgment which you might win. Wining a lawsuit is wonderful, but if it only results in a hollow victory and your attorney fees, you probably should forego the trouble of the lawsuit.

Each of the Orlando attorneys at Bogin, Munns & Munns, P.A. are proficient in the use of technology needed to obtain the information you need to make the legal decisions you face.

The Important Balance of the Burdens of Proof in a Just System

admin — Wed, 13 Jul 2011 13:00:52 +0000

The shock that many in the community are expressing to the not-guilty verdict handed down by the jury in the recent high-profile criminal trial in Orlando illustrates a point that I try to make to all of my clients – predicting the outcome of any trial with any certainty is impossible. Litigants – and in some cases, the members of the public – at times become so convinced of the “just” outcome of a case that they lose sight of the balance of the judicial system and the burdens of proof carried by the parties.

Our judicial system, rightly, requires the proponent of the claim to prove that claim. In the civil context, the plaintiff typically carries the burden to prove the elements of his claim. The burdens of proof in a civil case are lesser than that of a criminal case. In a civil case, usually a plaintiff must prove his or her case by a preponderance of the evidence – in other words, that something is more likely than not to have occurred. Less commonly, some civil claims require proof by clear and convincing evidence, a higher standard of persuasion than preponderance of the evidence, but not quite as high as the criminal burden of proof.

In a criminal case, the government – either the State of Florida for a state-charged crime or the United States for a federally-charged crime – must prove the elements of the crime to establish the guilt of the defendant beyond a reasonable doubt. This is the highest standard.

The requirement that the proponent of the claim or charge carries the burden of proof is the correct balance in our judicial system, and the alternative would be unjust. In the criminal context, the alternative would be that the government could charge a person with a crime without sufficient cause, have guilt presumed, and force the defendant to prove his or her innocence. In the civil context, the alternative would be that a plaintiff could sue for money or other civil relief and tie up a defendant’s property, money or credit without having first proved entitlement to any damages at all. The individual’s rights that could be infringed upon in such an abusive system are limitless. Unfortunately, this happens in other societies and is condemned by those with a balanced judicial system like ours.

Because of the balance imposed by the respective burdens of proof, it is impossible to predict with absolute certainty what a jury or judge will decide in any case. What may seem to be a very persuasive fact or argument to a litigant may not been deemed to be persuasive by the trier of fact. Evidence or testimony by a witness, which may seem to be very credible to the proponent of that evidence, may be looked at with circumspection by the judge or jury. An argument urged by one Orlando attorney that would seem infallible may be shown to be specious by the other attorney’s more persuasive argument.

The verdict in the recent high-profile case here in Orlando, wherein many members of the public (stoked by the media fanfare) were convinced in the “just” outcome, which outcome was rejected by a jury, demonstrates that it is impossible to predict the outcome of any matter.

A lesson we all should learn is that whenever a case is taken to trial, there is a risk that the judge or the jury will just not see the case through your eyes, no matter how convinced you are as to the ‘justness’ of your position. If you are a litigant, listen to your Orlando lawyer and respect his or her advice. If you are a member of the public, be cautious in substituting your judgment for the decisions reached by the trier of fact. But in all cases, respect the balance of the judicial system.

– Nancy E. Brandt, 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. She welcomes questions and comments regarding the above and can be reached at nancyb@boginmunns.com.

Guardianship Minors

admin — Thu, 07 Jul 2011 18:59:58 +0000

In Florida, a child’s parents are the child’s natural guardians and may act on behalf of the child in most instances.

However, if the parents become incapacitated or die and a child receives the proceeds of a lawsuit, an insurance policy or an inheritance in excess of $15,000, the Court must appoint a guardian for the child, which may or may not be the child’s parents.

Parents may anticipate who they would like to serve as the guardian of their child and prepare a Declaration of Guardianship over the person and/or property of the child if both parents were to die or become incapacitated.

A designation of a chosen guardian (or trustee) may also be made in a Last Will and Testament in which the minor child is a named beneficiary.

If no nominations are made, the Court will determine who will serve as the child’s guardian.

The Orlando estate planning attorneys of Bogin, Munns & Munns, P.A. can assist you with obtaining a guardianship of a minor or to prepare nominations for such guardianships.

Guardianship Adult

admin — Thu, 07 Jul 2011 13:00:29 +0000

There are times when an adult may no longer be competent or able to take care of himself/herself physically or to make financial decisions on his/her own behalf. At such times, the court may appoint a guardian to exercise the legal rights of the incapacitated person, also known as “the ward.”

The process is begun by an adult filing with the Court a petition to determine another person’s incapacity – setting forth the factual basis for such allegations. The Court will then appoint a committee of 3 expert members to conduct a physical examination, a mental health examination, and a functional assessment of the potential ward and to report back to the Court. An Orlando attorney will be appointed for the potential ward and any challenges to a finding of incapacity will be heard and determined by the Court.

If the Court determines that the adult is partially or fully incapacitated, then the Court will appoint a guardian to oversee the person’s physical well-being and/or financial well-being. If at any time thereafter, the person recovers, the Court will have the Ward reexamined and potentially restore some or all of the ward’s rights.

Florida law requires the use of the least restrictive alternatives to protect an incapacitated person. If the incapacitated person had planned ahead and executed an advanced health directive and/or a durable power of attorney and/or a revocable living trust, he/she may not require a guardian as persons with the ability to look out for the health and finances of the incapacitated person have already been designated in those documents. The advantages of executing these documents before incapacity sets in are that the person chooses who they wish to perform these functions (rather than having a court select the guardian) and that the costs and Orlando attorney fees of estate planning documents are much lower than a contested guardianship proceeding.

The Orlando estate planning attorneys of Bogin, Munns & Munns, P.A. will be glad to assist you in obtaining a guardianship when needed and to fulfill the on-going obligations of the appointed guardian. We can also assist in setting up your estate plan so that you can control those persons who will have authority over you and your assets should you become incapacitated.

I signed a liability waiver on behalf of my child; can I still sue the business where my child was hurt?

admin — Sat, 02 Jul 2011 22:13:17 +0000

As a parent of three children, I am often presented with liability waivers which a business requires me to sign before my child can participate in an activity. These businesses have included indoor rock-climbing, go-cart tracks, and laser tag facilities. Many of you are faced with the same situation of either signing the liability waiver or having your child not participate in the activity. This leads to a logical question; do these liability waivers prevent me from suing a business whose negligence injures my child? As is the case with most legal questions, the answer depends heavily on the facts.

Take for instance the 2008 Florida Supreme Court case of Kirton v. Fields. The facts in this case involved a parent signing a liability waiver on behalf of his minor child before the child was permitted to ride an all terrain vehicle (“ATV”) in a commercially owned and operated motor sports park. The child lost control of the vehicle and was killed when the ATV landed on top of him. The personal representative of the child’s estate brought a wrongful death lawsuit against the owners and operators of the for-profit motor sports park. The lawyers for the park relied on the liability waiver as a complete defense to the claim and the trial court judge agreed and dismissed the claim. The case ended up in front of the Florida Supreme Court. The Supreme Court decided that the liability waiver was not effective to release the claim on these facts. In reaching this decision, the Court reasoned that the Florida legislature had not enacted any law which addressed this situation, and that under these circumstances and as a matter of public policy, the father could not preemptively waive the minor’s property interest in a lawsuit for personal injuries suffered due to the negligence of the park.

Predictably, the Florida legislature, motivated by special interests, moved rather quickly to enact legislation to protect these businesses and partially nullify the effects of the Court’s decision in Kirton. These new laws became effective in 2010 and specifically authorize a parent to sign a liability waiver on behalf of their minor children when a commercial business is involved and the waiver addresses the “inherent risks” of the activity. Had this law been effect when the Kirton case was decided, the outcome likely would have been different. The new law does not protect the commercial business against lawsuits due to the business’s own negligence, however.

You should also understand that courts routinely uphold pre-injury releases that are knowingly signed by an adult. Therefore, while you may be able to avoid the effects of a pre-injury release signed on behalf of your minor child, if you sign the same release on behalf of yourself, you have likely lost your right to sue the business. Consult with an Orlando attorney if you have any questions regarding a particular release, before signing it.

- Barry K. Baker, Esq., is an experienced Orlando 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

Living In or Visiting Orlando? Look Both Ways Before Crossing the Street

admin — Tue, 21 Jun 2011 14:47:43 +0000

How many times did we hear this while growing up? How many times have we told our own children this common sense advice? Well, unfortunately, statistics indicate that folks who live in or visit Orlando simply forget or ignore this mantra.

According to a study by Transportation for America, a safety advocacy coalition, the greater Orlando area is the deadliest urban center in the United States for pedestrians. More than 550 Orlando area pedestrians were killed during the past decade—an annual rate of 3 per 100,000 people. Half of these fatalities occurred while pedestrians were trying to cross over wide-multilane roads that are designed to move heavy traffic and are not necessarily pedestrian friendly. More often than not, the intersections on these roads are far apart, which leads pedestrians between these intersections to decide whether to walk the extra distance or to take their chances. Although certainly more people cross safely than not, the statistics present a grim picture of the risks of this endeavor.

Florida Statutes §§ 316.130 and 316.2065 set forth the respective duties of pedestrians and nearby drivers.

Where sidewalks are provided, no pedestrian shall, unless required by other circumstances, walk along and upon the portion of a roadway paved for vehicular traffic.
Where sidewalks are not provided, a pedestrian walking along and upon a highway shall, when practicable, walk only on the shoulder on the left side of the roadway in relation to the pedestrian’s direction of travel, facing traffic which may approach from the opposite direction.
No person upon roller skates, or riding in or by means of any coaster, toy vehicle, or similar device, may go upon any roadway except while crossing a street on a crosswalk; and, when so crossing, such person shall be granted all rights and shall be subject to all of the duties applicable to pedestrians.

More and more cities, including Orlando and surrounding areas, say they are increasing enforcement of their respective pedestrian laws, but those of us who routinely drive in this area observe pedestrians routinely trying to cross in violation of the law. Florida No Fault Law may provide some degree of benefits to folks injured while they are pedestrians, but in most cases the cost of treating severe injuries far and away exceed the amount of these benefits, which are only $10,000. In the case of death, No Fault benefits include a $5,000 benefit.

Bottom line, while Bogin, Munns & Munns has represented numerous pedestrians in Orlando who have been injured and we will continue to do so, more times than not the available insurance is meager when compared to the extent of injuries. Bottom line, heed Grandma’s advice, “look both ways before you cross the street” and add this: “use the designated crosswalk” even if it means walking a bit further.

(See the full report at http://t4america.org/docs/dbd2011/Dangerous-by-Design-2011.pdf)

If you’re looking for a law firm in Orlando to represent you in your case, contact us today at (407)578-1334.

– 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

Watch Out for Red Light Cameras!

admin — Fri, 27 May 2011 20:59:58 +0000

Many cities and counties across Central Florida/Orlando and across the country have implemented the use of red light cameras at intersections to reduce the number of collisions and injuries resulting from these collisions. Local jurisdictions which have installed these cameras include Orlando, Winter Park, Apopka, Ocoee, and Orange County. Kissimmee, Deland, and Oviedo are also considering installing these cameras. On Wednesday, May 25, 2011, Orange County Judge Jerry Brewer dismissed a lawsuit that challenged the constitutionality of Florida’s Red Light Camera Law. However, other lawsuits challenging Florida’s Red Light Camera Law will be forthcoming.

The Florida legislature enacted the Red Light Camera Statute, F.S. 316.0083 in the 2010 special session of the legislature. This statute in part states that notification of a violation must be sent to the owner of the motor vehicle within thirty days informing that person of the remedies under F.S. 318.14 and that they must pay a $158.00 fine or furnish an affidavit of defense pursuant to the statute within thirty days of the notification.

The owner of the motor vehicle involved in the violation must pay the traffic ticket unless the owner can prove any of the following:

a. The motor vehicle passed through the intersection in order to yield right-of-way to an emergency vehicle or as part of a funeral procession; b. The motor vehicle passed through the intersection at the direction of a law enforcement officer; c. The motor vehicle was, at the time of the violation, in the care, custody, or control of another person; or d. A uniform traffic citation was issued by a law enforcement officer to the driver of the motor vehicle for the alleged violation of s. 316.074(1) or s. 316.075(1)(c)1. In order to prove that the motor vehicle was in the care, custody, or control of another person (who was driving the vehicle at the time of the violation), the motor vehicle owner shall, within 30 days after the date of issuance of the traffic citation, furnish to the appropriate governmental entity an affidavit setting forth detailed information supporting an exemption as provided below: a. An affidavit supporting an exemption must include the name, address, date of birth, and, if known, the driver’s license number of the person who leased, rented, or otherwise had care, custody, or control of the motor vehicle at the time of the alleged violation. If the vehicle was stolen at the time of the alleged offense, the affidavit must include the police report indicating that the vehicle was stolen. b. If a traffic citation for a violation of s. 316.074(1) or s. 316.075(1)(c)1. was issued at the location of the violation by a law enforcement officer, the affidavit must include the serial number of the uniform traffic citation.

Of interest, Florida’s Red Light Camera Law does not appear to apply to turning right on a red light. Florida Statute 316.0083(2) states that a notice of violation and a traffic citation may not be issued for failure to stop at a red light if the driver is making a right-hand turn in a careful and prudent manner at an intersection where right-hand turns are permissible. However, some municipalities are still trying to enforce this law if a motorist still does not come to a complete stop before the white line prior to making a right turn on a red light.

With Florida’s Red Light Camera Law on the books, think twice before driving through an intersection. You might just safe a life- and it might be your own.

– Michael Truax, Esq., is an experienced Orlando 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

Essay Winner Coral Brown is presented with an IPAD from Ranier & Rulon Munns.

admin — Thu, 26 May 2011 15:51:46 +0000

Darlene Brown is my mother and the strongest person I know. She works two jobs, one as a full time cytotechnologist and part time as a cashier at Albertsons. She is supporting my father, my sister, and myself and is putting my sister and I through college. Never once has she asked for anything in return for the struggle she goes through every day. Both my father and I had major health problems requiring surgery in the past few years yet my mom was right there taking care of us and being a rock of strength the whole time. My mom would never admit to being the amazing woman she is because she simply thinks she’s doing what she should, not what she has to. She has influenced me in every way possible. She taught me integrity, compassion, determination, humility, and many other things through example; not just by telling what was right and wrong but showing me how to tell the difference myself. She is such a sweet, giving and deserving person I aspire every day to become a little more like my mom who inspires me so much. Please pick my mom, she is so much more deserving than I could ever hope to put in words.

The “Direct Threat” Affirmative Defense To Disability Discrimination Lawsuits

admin — Thu, 26 May 2011 15:46:29 +0000

On occasion, an employer will not hire an applicant, will discharge an employee, or will otherwise discriminate against an individual because that individual has a medical condition which the employer believes may pose a threat of harm to himself/herself, coworkers, customers, or the public. Generally speaking, this is an admission that the employer took a discriminatory adverse employment action against that applicant or employee because of their disability or perceived disability. In order to avoid liability for disability discrimination under the American’s with Disabilities Act (”ADA”), the employer bears the burden of proving that the employee’s medical condition, in fact, posed a direct threat of imminent harm to himself/herself or others.

An employer’s subjective, unilateral, and uninformed belief that someone poses a direct threat of harm is not enough to prove this affirmative defense to a disability discrimination lawsuit. The Eleventh Circuit Court of Appeals explained that in order to prove the “direct threat” affirmative defense, the employer has to state more than a subjective, good faith belief that the person was a direct threat. Lowe v. Alabama Power Company, 244 F.3d 1305, 1308 (11^{th Cir. 2001).}

Lowe held the employer must proffer “particularized facts about the specific person’s condition to support its” direct threat defense. Id. “The key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” Id. The direct threat defense cannot be based on a “cursory” medical exam and must be based “on particularized facts using the best available objective evidence.” Id.

If you believe that you were not hired, were discharged, or were otherwise discriminated against because your employer believed that your medical condition posed a direct threat of harm to yourself or others, then we encourage you to contact the Orlando attorneys Bogin, Munns & Munns, P.A. to review the matter. You could have a valid claim for disability discrimination under the ADA. This claim may be even stronger if the employer acted rashly and/or subjectively without an objective medical basis for concluding that your medical condition posed a direct threat of harm.

– 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

Maximizing Your PIP Benefits

admin — Mon, 16 May 2011 21:02:33 +0000

Am I Entitled to Unemployment Benefits?

Many individuals are aware that when they get into an automobile accident that their personal injury protection (PIP) insurance usually covers 60% of their lost wages. They also understand that it also pays a large part of their medical expenses. However, unfortunately, many fail to realize that PIP also offers other less obvious benefits.

Florida Statute 627.736 in pertinent part:

Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. Such benefits shall also include necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies upon spiritual means through prayer alone for healing, in accordance with his or her religious beliefs; however, this sentence does not affect the determination of what other services or procedures are medically necessary.

PIP benefits not only cover part of wages and medical expenses, but it can also offer some relief to the insured/injured person for mileage expenses to and from the doctor’s office and/or any other medical facility. In fact, PIP may also offer benefits for services that an insured/injured person cannot reasonably be expected to perform, such as lawn care and house cleaning. Although these expenses are typically small and immediately paid by the injured/insured, they can and should be presented to the PIP carrier for reimbursement consideration. Accordingly, an insured/injured person must remember that expenses are being incurred by both the individual and his or her doctor. Therefore, the sooner the expense is submitted, the greater the chance that reimbursement will be possible. Notably, once PIP benefits have been completely exhausted, the benefits will no longer exist. Too often injured individuals are unaware of these personal benefits until well after their PIP benefits have been fully utilized by their medical providers. Therefore, it is imperative that you know that these benefits exist early on in your auto accident case. Naturally, it is important for an insured/injured person to pay his/her medical bills, but medical bills should never come before an insured/injured person’s livelihood. Therefore, when an accident happens and you are not able to work for a period of time, please keep in mind that any financial assistance, regardless of how small or insignificant it may seem at the time is very important. PAY YOURSELF FIRST! Once the PIP benefits run out, it is gone forever and a claim against the other driver could go on for months – if not years. Therefore, an insured/injured person must be careful to utilize all the financial benefits that are available to him/her at the time that they exist, regardless of who, what, when or where that they may come from.

– 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

Am I Entitled to Unemployment Benefits?

admin — Mon, 16 May 2011 20:54:38 +0000

Unfortunately, employment lawyers hear this question fairly often these days. Generally speaking, a person is entitled to unemployment benefits unless they are either voluntarily quit or are fired for misconduct. While this seems like a fairly simple standard, there are often disputed facts in these sort of matters and extenuating circumstances that can sometimes weigh on the analysis as well. It may be prudent to speak with a qualified attorney that regularly handles these sort of matters as there can be significant consequences for both the employer and the employee depending upon the outcome.

If a terminated employee requests unemployment benefits, the former employer may dispute the entitlement. If that occurs, then the state sets up a telephone hearing to take testimony from both sides as to the facts involved in the termination. Such a hearing may be anywhere from several minutes long to several hours long depending upon the number of potential witnesses and a number of other factors.

Ultimately, a decision will be rendered as to whether the employee is (or is not) entitled to benefits. If either the employee or the employer is unhappy with the initial decision, then they may choose to appeal and another hearing may take place. Obviously, the results of these phone hearings are quite important to both the employer and the employee. If an employee successfully obtains benefits, then the employer’s future unemployment tax rate may increase. As to the employee, an unfavorable decision not only may stop the receipt of benefits, but the employee may even have to repay the state for any prior benefits they have received.

As noted in this brief article, unemployment benefit questions are often more involved than they may initially appear for employers and employees. At Bogin, Munns, & Munns, P.A. we have several experienced employment attorneys that can offer advice and assistance at any stage of unemployment benefit proceedings. We have represented both employers and employees in such disputes and are familiar with both the legal standards and common issues that arise.

– Joseph Shoemaker 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 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.

How Do Insurance Adjusters Evaluate Motor Vehicle Injury Cases

admin — Thu, 05 May 2011 16:58:00 +0000

Generally speaking, insurance adjuster’s decide on the amount of compensation the will pay to an injured party on the basis of several factor such as the following: the objective evidence, the amount of property damage to the vehicles involved, the amount of medical bills (paid and unpaid), and the strength of the testimony/story of the injured party.

The objective evidence considered is typically the results of medical tests rather than only the symptoms the party conveys to the physician. The most common tests in persons with neck and back injury cases for example are x-rays, MRI scans, CT scans, and tests which document nerve injury. If the objective tests are negative or a finding is not obvious, then an adjuster will document less value to a claim because a jury will have to rely on issues of credibility more if the case is not settled. Scarring, fractures, loss of sight or other function typically are valued much more than complaints of pain alone due to the issue of proof that an injured party has in these cases.

The amount of property damage is often a big determinant of what amount of compensation that is offered in a case. While it may not be a good indicator of the actual force involved in the impact or the severity of injuries produced, as the saying goes, pictures are worth a thousand words. The unfortunate part is that very often juries will deduce, incorrectly, that a person is not injured when there are not seriously damaged vehicles in the claim. In this regard, claim’s adjusters always use this tool to deny claims or severely reduce the values paid. A number of experts can be hired to refute this incorrect assumption that the force involved is directly proportional to the amount of property damage, but they are very costly and not every case is well suited for this action.

The amount of medical bills is another factor which affects the evaluation process. Adjusters assume that if the bills are relatively low, then a painful injury has not been incurred. Additionally, every personal injury case is subject to a setoff or reduction of value based on the amount of PIP (No-fault Personal Injury Protection Coverage), which is $10,000 in Florida. In this regard, if most of the bills were covered through the mandatory PIP, the claim in most cases will be evaluated at a lower amount of compensation.

The strength of the injured party’s testimony is a very important consideration. That is, what is the story the victim has to tell. For example, being transported by ambulance is a more compelling story than a person who sees their doctor two weeks after an accident. This is also coupled with the testimony being absolutely honest and supported by the evidence. Inconsistencies in medical records, for example, will drastically affect the evaluation of a case.

As you can see, there are many issues that are considered when an adjuster decides on the value of a claim. These things are generally true in the cases of juries as well. It is important to speak to your legal counsel about all of the factors involved in order for you to make an informed decision on the value of your personal injury claim.

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

The Family Business

admin — Thu, 05 May 2011 13:00:51 +0000

You have worked hard to grow your family business from scratch to the success it is today – not only to be the source for your income but hopefully also to be a legacy for your children. You have taken the necessary steps to protect your business, such as, creating a corporation or an LLC, and/or investigating the various options for asset protection (as discussed in some of our other blog entries).

Have you covered all of your bases? Do you have a plan as to who will run the business if you are incapacitated for a short term or a long term? Who will run and own the business upon your death? Is it acceptable for the business to be sold and the proceeds distributed to your heirs or do you prefer that this family-owned business remain intact?

INCAPACITY

If you are the President of your company and anticipate that you will be unavailable to perform your role in the short term, you can sign the proper resolutions to document who has authority to act in your role for a specified period of time. However, if your unavailability is due to an unplanned incapacity, you will not have the luxury of waiting to sign the proper papers.

If you do not have other officers already authorized to perform the roles necessary in your absence, it may be advisable to put the proper resolutions in place which delegate roles and responsibilities when you are incapacitated or unavailable.

DEATH

If you own the company in your name alone, the shares of the corporation (or membership units of the Limited Liability Company), are subject to transfer through the probate of your Last Will and Testament or through intestacy. A division of ownership among multiple heirs may make the continuation of the business difficult if your heirs are not familiar with the business operations or have varying opinions for its future.

If certain heirs would better be able to manage the company in accordance with your wishes, it may be worth designating in your Will that those heirs are to receive the ownership interest in the company and the remaining heirs are to receive your other assets. Alternatively, a trust may be a viable option for maintaining the operation of the business if your heirs would not be an adequate substitute for you.

These are some of the many issues that you may want to consider when planning not only the operation of your company but also the planning of your estate.

The attorneys of Bogin, Munns & Munns, P.A. can assist you with such planning.

– John Wright is a corporate, probate and estate planning 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 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.

Online Foreclosure Bidders Beware

admin — Tue, 03 May 2011 13:00:53 +0000

We recently read about an Orange County resident who bid on a property through Orange County’s new online foreclosure auction. He was stunned to find out after he was the successful bidder and tendered $20k that the property he had just purchased was still subject to a mortgage. Unfortunately, the foreclosure sale was for the HOA’s lien. This costly mistake could have been avoided by obtaining and reviewing a title search. We recommend you consult with an attorney about purchasing properties at a foreclosure sale. Otherwise, you could stumble into this pitfall, just one of many for the inexperienced foreclosure auction participant.

Platted and Vacated Streets

admin — Wed, 27 Apr 2011 13:00:45 +0000

When purchasing real estate, buyers occasionally encounter issues that arise from a purchase of land that includes vacated, platted streets. How can a buyer be sure that he has good title to the land within the vacated, platted roads that may be included in the parcels that he is purchasing?

Platted streets must be vacated by appropriate governmental action before title can be cleared. There are procedures required by the County for this process and, generally, it is accomplished by the entry of a recorded ordinance or resolution by the appropriate governing body releasing any public rights to the vacated area. The ordinance should specifically state that any interest of the public or government is vacated.

Private rights to the vacated streets must also be addressed. The question must be asked, “who now has title to the vacated street” – the entity that dedicated the street in the first place or the purchasers of lots abutting the street?

The primary guide for the answer to this is the intention of the entity who dedicated the street as reflected in the dedication language on the plat. Where there is no specific intention indicated i.e. the plat does not address who would be entitled to ownership of the property after vacation of the streets, the general rule is that the owners of the lots abutting the streets take title. If the plat indicates that there is an intention for the entity dedicating the property to take title, that person may claim ownership to the formerly platted roadway if the intention to take back the ownership of the platted property is also included in the deeds of conveyance to the lot owners at the time they purchased their lots.

Very seldom does the plat contain the intent of the entity dedicating the roadways to retain the reversionary rights to platted roadways, and even if it does, even more seldom do developers include reversionary language in their deeds used to convey out to the various lot owners.

As a general rule, therefore, when a platted roadway is vacated, the owners of the lots abutting an interior street take title to the center of the vacated street. Generally, for owners of lots abutting a perimeter street, the owner takes title to the entire width of the vacated street.

Buying property that includes a formerly platted street can be treacherous. It is important to dot the “i’s” and cross the “t’s” and make sure that it has been accomplished in the correct manner, otherwise when the buyer goes to sell or mortgage the property at a later time, there will be title problems that could delay or foil the sale or mortgage of the property.

Deadline to File Florida Annual Report Approaches

admin — Mon, 25 Apr 2011 22:24:19 +0000

The deadline for filing the Annual Report for all business entities in the State of Florida is May 1st. The annual report is not a financial statement but is only a simple reaffirmation or update to the information previously submitted to the Division of Corporations regarding contact information for the company, the registered agent, and the officers and directors.

Failure to file the report by this deadline will result in a $400.00 penalty. This penalty applies to all for-profit corporations, limited liability companies, limited partnerships, and limited liability limited partnerships. Not-for-profit corporations are not subject to the $400.00 penalty.

The report must be submitted electronically through the Division of Corporation’s website – www.sunbiz.org.

Failure to file an annual report by the 3rd Friday of September will result in the administrative dissolution or revocation of the business entity in the State of Florida’s records at the close of business on the 4th Friday of September. Administratively dissolved or revoked entities are not in “good standing” and are not entitled to conduct business in the State of Florida. Names of administratively dissolved or revoked business entities are made available to other parties after one calendar year.

Companies may be reinstated by submitting the appropriate reinstatement application and substantial reinstatement fees.

Simple instructions for preparing the Annual Report are available on the Division of Corporation’s website.

The attorneys of Bogin, Munns & Munns, P.A. will be glad to assist you with the filing of your Annual Report or with the answering of any other questions you have regarding your business entity.

– John Wright is an Orlando corporate, probate and estate planning 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 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.

TAGS: corporation, limited liability company, limited liability partnership, limited partnership, annual report, good standing, inactive, administrative dissolution

Breach of Contract – Defenses

admin — Wed, 20 Apr 2011 13:00:34 +0000

If you have been sued for breach of a contract, you will respond by admitting or denying each allegation in the Complaint. Additionally, you are also able to raise defenses to the allegations. These “affirmative defenses” are legally recognized grounds for defeating the claims of the plaintiff by asserting additional circumstances that render the plaintiff’s claims moot or invalid. You may raise as many of the affirmative defenses as are applicable to your situation, but you must generally do so at the outset of the lawsuit or you may forfeit your ability to assert them.

In addition to defenses such as the statute of limitations (the alleged breach occurred too long ago for a lawsuit to be properly brought now) and lack of jurisdiction (this is not the proper court in which to litigate this matter), in a breach of contract lawsuit, the following affirmative defenses may be appropriate:

Lack of capacity. This defense is applicable if you were a minor or you suffered from mental incapacities at the time you signed the contract. The law recognizes that you are generally not capable of entering into a valid contract.
Fraud. The other party lied to you and you relied on those lies when deciding to sign the contract. This is generally applicable in the situation where you relied on a trusted person who had a legal obligation to look after your interest and you had no opportunity to discover the falsity.
Nondisclosure. The other party had a duty to disclose a material fact to you which would have impacted your decision to sign but remained silent.
Forgery. The signature is not yours or that of someone you authorized to sign for you.
Mutual Mistake. Both parties were mistaken about an essential fact in the contract.
Vagueness. Critical elements of the contract were not agreed upon.
Oral contract. While some oral contracts are enforceable, Florida law requires certain types of contract to be in writing in order to be enforceable, such as the sale of real estate.
Unconscionable. While the law generally allows parties to make the terms of their own contracts, it will intervene when the terms are grossly unfair. This defense is applicable only when one party has much more bargaining power or sophistication than the other party.
Coercion or duress. If you signed only under a threat of harm, physical or otherwise.
Undue influence. The other party took advantage of a trusted or particularly persuasive relationship with you to get you to sign.
Failure to perform. The other party failed to perform his/her/its part of the bargain.

These are just some of the possible defenses that can be asserted in a breach of contract lawsuit. The litigation attorneys at Bogin, Munns & Munns, P.A. will be glad to discuss the facts of your case with you and help you understand what defenses you may be able to assert.

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.

TAGS: lawsuit, contract, breach, defenses, mistake, coercion, duress, undue influence, unconscionable. Performance, nondisclosure, fraud, capacity, minor, allegation, jurisdiction, statute of limitations, oral contract, jurisdiction

Child Support : The Percentage of Time Sharing Does Matter

admin — Mon, 18 Apr 2011 13:00:33 +0000

Child support is calculated by the Child Support Guidelines, which is Florida Statutes §61.30. The calculation of child support takes into account the relative income of the parties, the number of children, the amount of time each parent spends with the children, and health care and child care expenses. Certain allowable deductions are taken, and then the net incomes of both parents are added together and applied to the Child Support Guidelines. The Guidelines presumes that a particular amount will contribute to the support of the children based on the combined net income of the parents and the number of children. The amount of child support that must be paid is a percentage of this total amount, and each parent pays a percent according to his or her contribution to the combined net income. Credits are given for the costs of child care incurred due to employment, job search or education and for health insurance and non-covered medical, dental and prescription medication expenses.

A credit is also given if a parent spends a substantial amount of time with the children. Recent changes in the law have altered the definition of “substantial time” to include any time sharing that is at least 20% of the overnights during a year. This means that any time either parent spends at least 73 overnights with a child per year, that parent will receive a reduction in his or her child support obligation. For example, if a Father has the children every other weekend from Friday after school until Monday morning, returning them to the school, he will have 78 days per year, which now meets the requirement for “substantial time.” The Father would then be obligated to provide less support because he is presumed to be providing support to the children while they are in his care for this amount of time. The percentage required to establish a substantial amount of time has changed from 40% in 2010 to 20% in 2011. Thus, for purposes of calculating child support , the Percentage of Time Sharing Does Matter.

– Mary Hoftiezer, Esq., is an Orlando domestic 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. She welcomes questions and comments regarding the above and can be reached at mhoftiezer@boginmunns.com

Power Of Attorney

admin — Fri, 15 Apr 2011 13:00:40 +0000

There may be a time when it is useful for you to designate someone to act on your behalf. A power of attorney is a legal document in which one person (the “principal”) authorizes another (the “agent” or “attorney-in-fact”) to act on his or her behalf. The power of attorney may be limited or may be of unlimited duration and scope.

A limited power of attorney permits the named agent to act on behalf of the signer for a specific purpose only and, generally, only during a specific span of time. The named agent cannot sign documents or perform acts other than the named one(s) nor can the agent perform these acts at any time after the expiration of any specified period. A limited power of attorney may be useful, for example, in situations where you will be unavailable to attend to a document signing in person. For example, John can authorize Henry to sell his Honda SUV for an amount between $10,000.00 and $12,000.00 from today until 2 weeks from today. As long as Henry acts within those specified conditions, John cannot later object to Henry’s acts.

An unlimited power of attorney does not contain any restrictions as to scope or to duration. The intentional choice of excluding any restrictions is beneficial in an estate planning context where the principal cannot anticipate all the situations in which the principal may want the agent to act in the future. If the unlimited power of attorney includes the following language, “This power of attorney is not affected by subsequent incapacity of the principal except as provided in Section 709.08, Florida Statutes”; or similar words that show the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity, the power of attorney is said to be “durable” and the authorization is still effective even though the principal subsequently loses physical or mental capacity.

Because a durable power of attorney is so powerful, you must be careful to whom you name as your agent. While a durable power of attorney is legally revocable by the principal, from a practical aspect, it is difficult, if not near impossible, to do so effectively. To revoke the power of attorney, the principal needs to notify the agent of his/her intention to revoke the document and demand that the agent cease using the powers granted therein. Such revocation is best done in writing. The principal should also demand the return of the document (and any copies) from the agent and also inform the agent that he/she is liable for any acts fraudulently performed after the receipt of the revocation notice.

The principal may also notify any persons or institutions of such revocation, including those through which the principal anticipates the agent may attempt to improperly use the power of attorney after the revocation, such as banks where the principal has an account. However, because the durable power of attorney is unlimited, the principal cannot effectively inform everyone which the agent may attempt to defraud. While it is true the principal may pursue legal recourse against an agent who has acted improperly, the cost of a lawsuit and the possibility that the agent has no assets and is judgment-proof, may make such remedies illusory only. For this reason, the principal must be very selective in choosing the person or persons named as agent.

Before signing a power of attorney, the principal must carefully balance the benefits and the possible problems of granting such powers to the selected person(s). A durable power of attorney is a very useful tool to assist you should you lose mental or physical capacity in the future – but only if you have an agent or agents that you can trust with the utmost confidence to act in your best interest.

The attorneys of Bogin, Munns & Munns, P.A. will be glad to assist you with the evaluation of whether or not a power of attorney is appropriate for you, as well as with the preparation, or subsequent revocation, of a power of attorney.

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.

State Lawmakers Aim for Change and Job Creation

admin — Thu, 14 Apr 2011 13:00:44 +0000

This year’s session for the Florida legislature marks a turning point and a departure from business as usual in our Capitol. Faced with enormous financial limitations as well as a new Governor and many new legislators, change appears to be the theme. In Florida, the legislature faces one constitutional requirement during session and that is to balance the budget. However, momentum also exists for a myriad of changes in regulations for businesses as Florida’s state leadership is attempting to make Florida more inviting to prospective businesses and employers.

On a recent visit to Tallahassee with a local delegation of central Florida businesses, I was encouraged by the sense of optimism within the legislature. The Governor’s goal of increasing jobs within Florida is not only a possibility but an obtainable goal within the next two years.

Do you have a new business idea? Are you considering expanding your employee base to more than twenty employees? Are you considering a partnership or a franchise agreement? Are you attempting to navigate the regulatory rules with the Florida Department of Business and Professional Regulation? Maybe you are trying to determine if it is the right time to purchase property instead of lease it for your business. This year’s legislative session promises to conclude with new incentives for employers to build and expand their enterprises. You can track the progress of bills affecting your business at http://www.leg.state.fl.us or through the Florida Chamber of Commerce.

For over 30 years, Bogin, Munns and Munns, has been counseling businesses and corporations from formation to growth. We can assist you with forming your corporation and with understanding federal workplace regulations as your business expands.

- Jeremy Hill, 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. Hill works out of the Daytona office of the firm and welcomes questions and comments regarding the above and can be reached at jhill@boginmunns.com

Estate Planning and Divorce

admin — Tue, 12 Apr 2011 13:15:37 +0000

Florida does not recognize common law marriage. So a long term companion has no legally-recognized rights during the probate of the companion’s assets.

For purposes including probate, Florida does not recognize “legal separation” of a married couple. Therefore, until a final judgment of dissolution is entered, the parties are considered married and the estate of each spouse passes accordingly upon his/her death.

For the analysis below, we will assume that the couple does not have a pre-nuptial or post-nuptial agreement with different terms.

If during the pendency of a dissolution proceeding, one spouse attempts to disinherit the other in his/her will and dies prior to the entry of final judgment, the “disinherited” spouse would be entitled to his/her elective share in the decedent’s estate. The elective share represents 30% of the “elective estate,” which may include assets that are not in the “probate estate,” such as those assets held in the deceased spouse’s revocable living trust. Therefore, if the disinheriting spouse’s intent is to minimize the amount his/her spouse is to receive, an evaluation of the elective share needs to be performed before making any changes.

If a divorce becomes final prior to either spouse’s actual death, the now-former spouse in each spouse’s Last Will and Testament will be interpreted as having been predeceased and the assets will pass to the contingent beneficiary(ies). Even though the change will take place without a revision to the Will, it is recommended that each Will be reviewed in its entirety to ensure that any other changes accompanying the divorce are also addressed.

Unless specifically addressed in the divorce settlement, each former spouse should review the manner in which each asset is titled and the beneficiaries named in such assets. For example, unless the divorce order specifically addresses it, a life insurance policy beneficiary designation will not be impacted by a divorce. Therefore, the policy holder will need to proactively change the beneficiary designation from his/her former spouse if desired. The same is true for investment accounts, retirement accounts, certificates of deposit, and the like. A methodical review of each asset needs to be conducted if it is the intent to remove the former spouse from now inheriting any of these assets.

In Florida, when a husband and wife jointly own property, generally the property is held as tenants-by-the-entireties. When one spouse dies, the other spouse inherits 100% of such jointly-held asset regardless of the terms of the decedent’s Will. Upon the entry of the divorce order, such jointly-held property is converted from tenants-by-the-entireties to tenants-in-common. As such, each former spouse owns an undivided one-half interest in the property. Upon death, each former spouse’s interest will pass according to the terms of his/her Will or the provisions of Florida’s intestacy law.

The above are some simple illustrations of how a divorce can impact your estate planning. Florida Homestead laws and the existence of minor children may also impact these issues. If you are undergoing major life changes, such as a pending or completed divorce, it is important that you review your assets and your plans with competent legal counsel to ensure that all the documents in place correspond to your current desires.

The attorneys at Bogin, Munns & Munns, P.A. will be glad to assist you with your divorce and/or estate planning, including the preparation of any pre-nuptial or post-nuptial agreements.

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.

Mediation and Arbitration

admin — Tue, 12 Apr 2011 13:00:52 +0000

As the courts become increasingly overburdened with escalating caseloads and decreasing staffing, lawyers have searched for cheaper and quicker means to resolve disputes. Mediation and arbitration are two such means for alternative dispute resolution (“ADR”).

In mediation, each side to a dispute presents his/her/its case to a trained, neutral person. The mediator then acts as go-between for the parties, using his interpretation of the facts and the law to help them reach a settlement. However, the mediator does not have any decision-making authority and can only use persuasion to achieve this goal.

In contrast, an arbitrator is a decision maker. Each party first presents his/her/its case to the arbitrator. The presentation is more formal than it is in mediation and, like a trial, it may involve examination and cross-examination of witnesses. The arbitrator weighs the evidence, interprets the law, and makes a ruling regarding liability and damages.

Generally, mediation and arbitration are voluntary processes in which the parties may choose to participate. However, in Florida, some courts have instituted court-ordered mediation as a means of reducing the court’s caseload. If a full or partial settlement is reached, the court is provided with the agreed-upon terms and trial will proceed on the non-resolved issues, if any. If no settlement can be obtained, the court is simply informed that the mediation was unsuccessful and the trial process proceeds.

Arbitration may be voluntary – either as a result of a term of a contract entered into by the parties prior to the dispute or otherwise – and if so, is generally binding. In other words, if the parties have agreed to submit their dispute to arbitration, the decision of the arbitrator is final and may only be appealed on very limited grounds.

In Florida, some courts have ordered the parties to arbitrate their dispute and, in such case, the arbitrator’s decision is non-binding. If either party objects to the arbitrator’s decision, the trial will occur as if the arbitration never occurred. There is one twist: if the result of the trial is not better than the award which the objecting party received during the arbitration, that objecting party will be responsible for the other party’s attorneys’ fees.

In many cases, these ADR processes can be less costly and achieve a resolution more quickly than the traditional trial process. While there may be advantages to undertaking mediation and/or arbitration, there may also be disadvantages. For example, if resolution cannot be reached, a party will have exposed its trial strategy to the other side giving them a better chance to prepare for trial.

The attorneys in the litigation section of Bogin, Munns & Munns can offer assistance to you in evaluating whether ADR offers an advantage in your particular matter and how best to prepare for ADR if you decide to proceed.

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

Small Claims Litigation

admin — Fri, 08 Apr 2011 13:00:01 +0000

In Florida, if you cannot resolve a dispute for property valued at or money in an amount of $5,000.00 or less, you may look to the Small Claims Court. The rules and procedures in the small claims court are simpler, speedier and more informal than the regular court process and may offer you the best way to recover your property or money.

Prior to filing a lawsuit, you should attempt to reach resolution through direct communication with the other party. If that does not provide you a satisfactory resolution, then you need to evaluate whether or not you would be successful if you take the matter to the Small Claims Court. In other words, do you have a valid legal claim and do you have sufficient proof to succeed in court?

Any person over 18 years of age or any business may file a small claims lawsuit. A person under 18 years of age may also file a lawsuit but only if it is filed by his/her parent or guardian.

The process is begun by filing a Statement of Claim with the local county court clerk and paying the required fee. There is a standard Statement of Claim form available through the Clerk’s office as well as online. It is important to pick the appropriate county in which you file your lawsuit or else the defendant could request the court move the trial to a more appropriate county.

After fling the Statement of Claim, the defendant must be notified of the lawsuit by serving him with the required paperwork either mailed by the Clerk or delivered personally by the Sherriff’s Office. Fees are required for each service and may be recoverable as part of your lawsuit.

The court will set a pretrial hearing at which time the court will accept the defendant’s defenses, if any. If the defendant has no valid defenses, the judge may enter a verdict at that time. If the defendant appears to have valid legal or factual defenses, the judge will schedule a trial. At trial, each party will present his/her/its evidence, including witnesses which have been subpoenaed to appear by each party. The judge will then make his/her ruling. This ruling is subject to appeal, which is subject to the more stringent and complicated civil procedure rules.

If you are successful in getting a judgment against the defendant, you will have to proceed to the collection of your judgment, a topic of a future blog.

While Florida allows you to retain and use a lawyer during a small claims court matter, many people do not do so because of the potential expense. If you win, those reasonable attorney’s fees will be recoverable but if you lose, it is money out of your pocket.

A good compromise may be to use an attorney on a limited basis – meet with an attorney to determine if you have a valid claim, prepare a demand letter to the defendant prior to filing the lawsuit, learn what your best evidence is and how to present it effectively at trial, anticipate the defendant’s claims and how to counter them, and more.

The lawyers of Bogin, Munns & Munns will be glad to meet with you to help prepare you for your small claims matter.

– John Wright is a corporate, probate and estate planning 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 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.

Non Disclosure Agreements

admin — Thu, 07 Apr 2011 13:23:47 +0000

A Non-Disclosure Agreement or NDA is a contract in which one party agrees that it will disclosure information and/or documents which it considers valuable and confidential to another party so long as the receiving party agrees to maintain the confidentiality of the disclosed information and/or documents. NDAs can also be mutual when each party is both disclosing its confidential information and receiving the other party’s confidential information.

The confidential information could be anything which one party considers its secret, such as, a new invention, its financial information, a manufacturing process, its list of customers, a marketing plan, or a recipe. To be protectable, the information must not have been previously publicly disclosed or available from another source.

An NDA helps enable parties to conduct business without fear that another party will steal its secrets. For example, if you have a new invention and would like to discuss it with a manufacturer, you would want the manufacturer to sign your NDA first before disclosing the invention to them. The manufacturer would then be bound to limit its use of the information to the stated purpose, such as providing a cost estimate to you.

By signing an NDA, the parties enter into a confidential relationship with an obligation to maintain the secrecy of the information disclosed as well as to restrict the receiving party’s use of the disclosed information to only the purposes agreed upon and stated in the NDA, all for a limited period of time. If the receiving party breaches the NDA, the disclosing party would be able to request a court to issue an injunction to have the receiving party immediately cease its breaching conduct and to sue the receiving party for monetary damages which the disclosing party suffered.

The disclosing party will want the NDA to be carefully prepared so that all of the information trying to be protected is well defined and that the receiving party is restricted to the activities in which it will be able to use the disclosed information. The receiving party will want a well written NDA so that the disclosing party will not be able to later allege a breach for the receiving party’s actions on information the receiving party previously possessed or other similar exceptions.

The attorneys at Bogin, Munns & Munns, P.A. will be glad to assist you with the drafting or the review of a proposed NDA.

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.

TAGS: confidential, proprietary, secret, non disclosure, NDA, damages, breach, injunction

Helping a Widowed Parent

admin — Wed, 06 Apr 2011 13:00:11 +0000

It is never easy to discuss estate planning issues with one’s parents. Be assured it is probably not easy for them either. This becomes increasingly more difficult when a spouse has died.

However, being proactive, organized and prepared in this situation will greatly enhance your ability to assist the surviving parent. If possible, it is usually better if the parent continues to make the decisions regarding their life and planning and only relies on you for assistance (rather than your taking control). With that in mind:

Conduct an inventory of the surviving parent’s assets and debts. Locate and review the important documents related to them.
Verify that the surviving parent is knowledgeable about their bills and accounts, any arrangements for automatic deposits and withdrawals, and any email or other electronic passwords.
Determine if the survivor is entitled to any benefits – pension, social security, veteran, life insurance – and apply for benefits as appropriate.
If title to land, automobiles, investment accounts or other assets were held jointly by the spouses, work on changing the titles. Title can be held solely by the survivor or jointly with another person, or the asset may be capable of being designated as “payable on death.” Such changes should be made consistent with the wishes of the survivor’s Last Will and Testament.
If the survivor is elderly, determine if he/she is now capable of living on his/her own or if some type of assistance is needed (e.g., visiting nurse or assisted living). Be aware that this status may change with time and needs to be monitored. Assess the home conditions and make any improvements needed for better safety and accessibility. If the survivor is no longer capable of living on his/her own or making his/her own decisions, consider alternative living arrangements for them.
Update insurance policy beneficiaries, estate planning documents (i.e., Last Will and Testament, Living Will, Durable Power of Attorney) as needed.
If you do not live nearby, consider making arrangements with the survivor’s other relatives, neighbors and friends who do live nearby to visit and assist as needed.

Just as your parent may need assistance, so too may you. The lawyers of Bogin, Munns & Munns, P.A. have experience with such transitioning and can assist with any modifications needed for estate planning, any issues regarding benefits planning for the elderly (Medicare, Medicaid) and guardianship.

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.

TAGS: widow, elderly, estate planning, survivor, assisted living, Medicare, Medicaid, guardianship, benefits, pension, insurance, social security, living assistance, Last Will and Testament, Living Will, Durable Power of Attorney, title, payable on death

Introduction : The Commercial Real Estate Lease

admin — Mon, 04 Apr 2011 13:00:30 +0000

In today’s marketplace, a prospective commercial real estate tenant has numerous properties from which to choose and has a significant opportunity to negotiate the terms of a lease. The prospective tenant should not be deterred from negotiation because the landlord says that the proposed standard form lease is the same form everyone else signed. If the landlord is intractable from that position, the tenant will need to evaluate the proposed lease terms as is. But faced with the prospective of continued vacant space, the landlord may change his/her stance if his/her bluff is called.

How can a tenant decide what issues should be negotiated? This determination will vary from tenant to tenant and from lease to lease. A commercial lease can be a very complex document which can control the outcome of many planned and unplanned events. So before deciding on what “standard” terms need to be varied, the prospective tenant needs to thoroughly understand all of the proposed lease terms.

A tenant may expect the rent to be a simple statement in the lease. And that may be the case when the rent is a flat monthly payment. But, the rent could be variable – such as an amount due based on a percentage of the tenant’s sales. Or, it could be a combination of those two or other factors. There may be additional cost obligations to the tenant which can be classified as “additional rent.” These may be payments, among other things, for the upkeep of the common areas of the commercial building, for the fees to be paid to the management company, or for the cost of various landlord-supplied utilities. The lease may also include an escalation provision allowing for increases in the rent or the additional rent over time.

The prospective tenant should analyze each of these “rent” terms and the impact that each has on his/her/its economics for the proposed space. If the basic rent terms cannot be negotiated, the tenant may want to add restrictions as to the types of common area expenses to be covered or how frequently they will be incurred or escalated.

Typically, a lease will also include an allocation of responsibilities for maintenance and damage repairs. Significant items such as roofing, HVAC, and plumbing could be assigned to the tenant. If the landlord will not negotiate away from such assignment, a thorough inspection may be justified to determine the risks in each of these items.

While reputable landlords and tenants do not dispute every minor issue that occurs after the tenant occupies the premises, not all landlords and all tenants are reputable. A vague term is a great invitation for a future dispute. A vague term routinely used in a lease is the word “reasonable.” For example, a lease may state that “the tenant will pay tenant’s prorata share of the parking lot repaving done at reasonable intervals.” Since this could be a significant expense, it may be advantageous to the parties to define “reasonable” as “an event that occurs no more than once every X years.” The elimination or the restriction of a vague term may not be merited in every instance, but the tenant should evaluate the risks associated in each case before accepting it.

Other provisions may be important to some tenants and not to others. For example, parking and signage may be critical for a retail store but not so for a manufacturing location. Lease duration may be critical for a tenant which would incur significant costs in relocating. Build-out expenses or restrictions on interior alterations will vary in importance among potential tenants. In every case though, the prospective tenant needs to make a conscience decision on every term’s acceptability within the scope of the overall lease evaluation.

The attorneys of Bogin, Munn & Munns, P.A. have significant experience in drafting, analyzing, and negotiating commercial real estate leases for landlords and for tenants and welcome you to contact them.

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.

TAGS: commercial real estate lease, lease, negotiation, landlord, tenant, rent, additional rent, common area expense, escalation, maintenance, vague, build-out

Removal of the second mortgage from your home

admin — Fri, 01 Apr 2011 13:00:30 +0000

A Chapter 13 bankruptcy provides an opportunity to eliminate a second mortgage from the residence of the debtor filing for bankruptcy. What is known as a “stripoff” is allowed where the lien or mortgage is “wholly unsecured”.

The legal basis for this relief is found in 11 U.S.C. 1322(b)(2) which in essence provides that a Chapter 13 plan may modify the rights of holders of secured claims other than a claim secured only by a security interest in real property that is the debtor’s principal residence. The courts have consistently ruled that where a lien or mortgage is in reality unsecured there is no protection from a court ordered modification. Further, pursuant to Section 506 of the Bankruptcy Code a wholly unsecured creditor cannot make a lien claim, i.e. a wholly unsecured lien claim is void. Therefore, if the value of the residence is less than the amount owed to the first mortgage company the second mortgage company has no collateral to secure the debtors obligations. Under this scenario the second mortgage company is “wholly unsecured’, and the Chapter 13 debtor may submit a motion to the court seeking a “stripoff” of the second mortgage.

Under current real estate market conditions the second mortgage company rarely contest a motion to stripoff. The Debtor bears the burden of proof to show the sum owed to the first mortgage and the value of the residence. If there is a dispute over the value the debtor will need to obtain an appraisal and be prepared to pay the appraiser for court testimony. The sum owed and values are determined as of the date of the petition filing.

Once the second mortgage is stripped the amount owed is considered an unsecured claim like any other unsecured debt such as credit cards and medical bills. The debtor will pay to the court trustee a monthly amount which is determined by the debtor’s household disposable income as defined by the Bankruptcy Code. These monthly payments typically continue for 60 months. The total debt and the total amount of money paid to fund the plan determines the percentage or pro-rata share of payments to creditors through the plan. Therefore, the stripoff does not completely eliminate the debt. However, the mortgage is removed, which will prove beneficial upon any sale of the residence by the debtor in the future, and the second mortgage company will receive only their pro-rata share through the Chapter 13 plan.

Noncompete Agreements

admin — Wed, 30 Mar 2011 13:00:40 +0000

Many employers require that each employee with access to the employer’s confidential and proprietary information sign a noncompete agreement (the “Agreement”). In the Agreement, the employee agrees not to compete with the employer by working in specified capacities for direct competitors of the employer located in certain areas for a specified period of time after leaving the employer.

Why does the employer want its employees to sign a noncompete agreement?

The purpose of the Agreement is (a) to prevent the employer from losing a valuable employee, (b) to prevent the employee from accidentally or intentionally disclosing the employer’s trade secrets and other confidential information to the employer’s competition, and (c) to prevent the employee from creating a competing business.

An employee who has signed a noncompete agreement has fewer options for alternative employment. The employee has developed a skill set which makes the employee more valuable in the same field of business as its existing employer. If prohibited from working in the same field if he/she leaves, the employee may have to take a lower salary at a new employer or may have to move significantly away from his/her current location. Given those choices, the employee is less likely to leave the current position.

By prohibiting the employee from working for a competitor or starting his/her own business, the employer is better able to prevent others from learning about and using its business methods, its formulas, its customer list, its marketing plans and any other information which the employer has developed and kept secret in order to give it an advantage over its competition.

Will the Agreement be enforceable in Florida?

In Florida, in order to be enforceable, the Agreement must be reasonable and have a good business purpose for being required.

A blanket requirement that all employees must sign the Agreement is not a good idea for an employer. It is unlikely that all employees have access to valuable business information. Limiting the signing group to those employees with actual access to proprietary information will increase the chance for the Agreement’s enforceability.

The Agreement also needs to provide a benefit to the employee. Making a new potential employee sign the Agreement prior to his/her hiring would satisfy this requirement. By requiring an existing employee to sign the Agreement, some tangible benefit (e.g., continued employment, a raise, a promotion, or a bonus) may be needed to be given in order to make the Agreement enforceable.

Lastly, the Agreement’s restrictions must be reasonable. Reasonableness can mean that the prohibition period of time cannot be too long, the prohibited activity cannot cover too wide a geographic area, and the Agreement cannot define “competing businesses” too broadly.

What to do before you sign the Agreement?

An employer should confirm that the scope of the Agreement is reasonable and has a reasonable business purpose.

An employee should read and fully understand the terms of the proposed Agreement. Depending on the relative bargaining positions, an employee may be able to individually negotiate the following issues:

-         the duration of the coverage period
-         the geographic area
-         the definition of competing business or business product lines, or even limiting it to the specifically named competing companies
-         the benefit you will receive upon signing (if you are an existing employee)
-         the restriction to instances when you leave the employer voluntarily (and not effective if you are fired or laid off).

How can the Agreement be enforced?

If an employer learns that a former employee has taken a new position or is about to take a new position with a competing employer, the former employer may notify the new employer of the terms of the Agreement. If the new employer has not already reviewed the employee’s Agreement, the new employer may well be concerned with potential litigation and opt to avoid the situation by rescinding any pending employment offer or terminating the former employee.

A former employer may seek a court injunction barring a former employee from continuing any activity in breach of the Agreement. A former employer may also seek monetary damages that are suffered due to a breach of the Agreement.

The attorneys of Bogin, Munns & Munns, P.A. will be glad to assist employers and employees with the various aspects of creating, negotiating, enforcing, and defending noncompete agreements.

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.

TAGS: noncompete, trade secret, proprietary, confidential, employee, employer, competition, competitor, prohibition, restrictions, geographic scope, duration, termination, customer list, marketing plan, formula, strategy, non-disclosure

Pain and Suffering

admin — Thu, 24 Mar 2011 13:00:44 +0000

Most victims in motor vehicle accidents understand that the other driver’s insurance company is responsible for their medical expenses. But not everyone realizes that, under Florida law, they are entitled to compensation for pain and suffering, if the injuries are permanent.

Determining the value of pain and suffering is difficult, so the law provides some guidance. At a trial, a jury will be instructed to consider not only the physical pain experienced by the victim, but also mental anguish, inconvenience and loss of enjoyment of life (Florida Standard Jury Instructions (Civil) 501.2a). The jury will be told to determine a fair amount, covering the past and the future.

This means that you have to consider the traumatic experience of the accident itself, the immediate physical pain, and the likelihood of a lifetime of pain. You have to consider the upheaval caused by numerous doctor visits, therapy appointments, and trips to the pharmacy. This includes the stress involved in leaving work early, arriving late, and arranging for additional child care.

To arrive at a fair amount, you also have to consider the “loss of enjoyment of life.” This relates to any changes or limitations in your daily activities, due to your injuries. For example, your injuries may force you to limit exercise, by walking or running less frequently. You may have to stop certain activities like riding roller coasters or water skiing. It might become difficult to lift and play with small children. You may have to forego gardening, and either abandon it entirely or pay someone else to maintain it for you. Depending on the type of injury, it might even be painful to continue certain hobbies such as painting or playing guitar. And although you might be able to physically perform the task, the pain could take away much of the enjoyment.

So, when you are trying to place a value on the effect of a permanent injury, it is important to remember the judge’s instructions, and consider your pain and suffering.

Government in the Sunshine

admin — Tue, 22 Mar 2011 13:00:59 +0000

This Legislative Session the State Budget, education, personal injury protection insurance, rule making authority of the court, standards for medical facilities, access to the Courts and many other weighty issues are being considered. The actions taken by the Legislature today can impact you, your friends and your family for years to come. Florida has laws designed to make sure that Floridians are able to see what their government is doing. This article is not about a particular political point of view. It is about showing Floridians how they can learn about actions its Government is proposing, so that Floridians can voice their opinions on these actions before they impact Floridians’ lives.

The State Government can be easily accessed on the internet. Below are websites that can be utilized to keep you informed about your State Government:

*MyFloridaGov.com: is the State’s official website and provides links to all areas of government.

*MyFloridaGov.com: provides links to State and Federal Government websites
* http://www.flsenate.gov/: is the Florida Senate’s website. This website allows Floridians to view bills, locate their senator and contact their senator.
* http://myfloridahouse.gov/: is the Florida House’s website. This website allows Floridians to track Legislation in the Florida House of Representatives, view House and Senate sessions and locate their House Representative.

* http://www.flgov.com/: is the Governor’s website. This website allows Floridians to contact the Governor, view the Governor’s schedule, listen to the Governor’s podcast, and view executive orders.

Floridians do not need to rely upon third parties to inform them about what their State and local governments are doing. The internet has made it easier than ever for individuals to access their government. Lawyers apply the law. Citizens have the ability to impact what law is created by staying informed and contacting their representatives.

– 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.

Does a Bank have Continuous Coverage under a Mortgagee Title Policy after a Foreclosure?

admin — Fri, 18 Mar 2011 13:00:12 +0000

Many banks are foreclosing on homes or taking ownership of them by a deed in lieu of foreclosure. One question that has come up is whether the bank has continuous coverage under the Mortgagee Title Insurance Policy from when the mortgage was originated. This can be important if title problems are discovered after the bank has already taken title to the property.

Paragraph 2(a) of the 1992 ALTA mortgagee policy Conditions and Stipulations states in part:

2. CONTINUATION OF INSURANCE

(a) After Acquisition of Title. The coverage of this policy shall continue in force as of Date of Policy in favor of

(i) an insured who acquires all or any part of the estate or interest in the land by foreclosure, trustee’s sale, conveyance in lieu of foreclosure, or other legal matter which discharges the lien of the insured mortgage; (ii) a transferee of the estate or interest so acquired from an insured corporation, provided the transferee is the parent or wholly owned subsidiary of the insured corporation, and their corporate successors by operation of law and not by purchase …

The policy language above does tell us that the bank may continued to be insured. However, there are a few problems that arise:

One problem is when a bank has a 3rd party bid at the foreclosure sale. This often happens when the bank’s parent or subsidiary company bids at the sale without having an assignment of the mortgage. If this happens, the property has been acquired by a 3rd party, not the mortgage holder, and the title policy terminates. So, there is no continued title coverage!!

Another problem is the amount of damages that are available under a mortgagee title policy. The amount payable under a mortgagee policy is limited to the amount of indebtedness as compared to the value of the property. So, if the title defect does not diminish the property’s value below the amount of principal owed on the mortgage, then there is no payable insurance claim on a mortgagee policy. In contrast, an owner’s policy would pay for the decrease in the value of the property without regard to the balance owed on the mortgage. This makes a big difference in cases where the mortgage balance has been paid down or where the lender did not loan the full value of the property.

An additional problem that arises is the effective date of the policy. The effective date of the mortgagee policy is the date that the mortgage was originally recorded. So, any title defects that arose after that date will not be covered by the existing mortgagee policy.

For all these reasons, banks should consider purchasing an owner’s policy when they buy a property at a foreclosure sale rather than relying on continued coverage for title defects under the mortgagee policy.

If you are a lender in North or Central Florida that needs legal advice regarding real estate issues, please contact Bogin, Munns, & Munns, P.A. to schedule a consultation. The attorneys at Bogin, Munns & Munns, P.A. have significant experience in representing lenders who own properties with title defects, and we would be happy to assist your bank as well. Often, our fees for fixing title defects are paid from a title policy claim. Please call us at (352) 332-7688 in Gainesville and (407) 578-1334 in Orlando.

Basics of Asset Protection

admin — Wed, 16 Mar 2011 13:00:03 +0000

As you begin to accumulate wealth, you should consider various means to protect yourself from claims of creditors. There are a variety of ways to do so, but you must act in a timely manner. Once there is a foreseeable creditor claim against you or your assets, it may be too late to take any action to protect your assets.

How does a creditor claim arise?

You may become liable for a breach of contract or for a claim against a guaranty you provided for the debt of someone else. You could be subject to domestic relations proceedings (such as, unpaid alimony or child support). You could be found liable for injuries you caused to someone else (e.g., a car accident or professional malpractice). These are just a few means in which a creditor’s claim could arise against your assets.

What types of asset protection devices are available?

One of the most widely used devices for asset protection is insurance – life, health, automobile, medical, fire, malpractice, liability, and others are available and should be purchased as appropriate for your circumstances.

The most notable asset protection device in Florida is the homestead exemption. Florida law also provides an exemption to creditor claims against the money held in qualified retirement plans, Section 529 Florida Pre-Paid College Tuition Plans, Educational IRAs, and Health Savings Accounts.

Certain aspects of life insurance and annuities are also exempt from creditor claims. Joint ownership of property with a person who is not subject to the same creditor claim or asset ownership by certain types of trusts may also establish protection against a creditor. Assets owned by a business entity (an LLC, a corporation, a limited partnership) may be protected in varying degrees from claims of the creditors of the entity’s owner.

Each planning device is subject to strict and significant restrictions of when they are applicable, how much protection is provided to the assets, and if any distributions are also protected.

When is the time to plan?

Sooner is always better than later. However, if any of the following occurs, it may be too late to undertake asset protection planning without being subject to an allegation of fraud and/or a creditor’s attempt to overcome the purported asset protection by claiming a fraudulent transfer: knowledge of a threatened claim or of an event that may lead to a claim, knowledge of a pending investigation which may result in a creditor claim, a default in any monetary obligation, contemplation of filing for bankruptcy protection, or a transfer of assets which will result in the inability to pay reasonably anticipated debts as they become due (i.e., insolvency).

More detailed analyses of specific asset protection devices will be provided in future blogs. Meanwhile, the attorneys of Bogin, Munns & Munns, P.A. will be glad to assist you with an analysis of your personal circumstances and to provide recommendations of how to protect your assets.

John Wright is a corporate, probate and estate planning 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 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.

Who Pays Attorneys Fees in a Lawsuit

admin — Thu, 10 Mar 2011 13:00:32 +0000

There are many steps to take before deciding to proceed with a lawsuit. One step is weighing the risks (i.e., cost) of proceeding with the lawsuit against the potential gains.

One risk, even if you prevail in the lawsuit, is that you will spend more money on your attorney fees (and the associated court costs) than you are awarded in the judgment.

Generally, in the United States, each party in a lawsuit pays for its own attorneys’ fees and court costs. There are 2 broad exceptions: (1) the lawsuit is based on a particular statute which includes a fee-shifting provision, or (2) the parties have contractually agreed in writing that the prevailing party is entitled to reimbursement of its attorneys’ fees and costs.

In contractual matters, the court has a fair amount of discretion in deciding whether or not to award attorneys’ fees to the prevailing party and, if they are awarded, the amount of such fees. This is true whether or not the contract includes an attorneys’ fees provision. The court can award attorneys’ fees to a party to ensure that a fair result is achieved.

To increase the likelihood that a court will grant the award of such fees, it is best for the parties to put such agreement in the written contract in terms that are clear and reasonable, fair to both sides, and demonstrated to be a term negotiated by the parties (versus a form contract).

The attorneys at Bogin, Munns & Munns can help you prior to signing a contract to ensure that your contract is well-drafted with an appropriate attorneys’ fee provision. After signing a contract, our attorneys can assist you in evaluating the strengths and weaknesses of your claims including the impact of attorneys’ fees on your decision. Our attorneys can also advise you if your potential lawsuit falls under any other means of shifting the attorneys’ fees to the prevailing party.

- John Wright is a corporate, probate and estate planning 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 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.

TAGS: lawsuit, attorneys’ fees, court costs, fee-shifting, judgment, discretion, equitable remedy

Divorce and Inheritance

admin — Tue, 08 Mar 2011 13:00:52 +0000

The laws of Florida protect a spouse from being disinherited by his/her spouse during the term of the marriage.

However, a spouse can waive his/her claim to any or all of the estate of his/her spouse by signing a valid pre-nuptial (prior to marriage) or post-nuptial (after marriage) agreement. Such agreements may pertain to, among other things, the division of property, alimony, or child support if there is a divorce or if one parent dies. Such marital agreements will be upheld by the courts if signed by both parties and agreed to voluntarily without any undue influence. A major difference between pre-nuptial and post-nuptial agreements, with respect to probate rights in the spouse’s estate, is that there is no duty to disclose any financial information in a pre-nuptial agreement, but full disclosure is required in a post-nuptial agreement. A lack of full disclosure in a post-nuptial agreement may render it invalid and unenforceable.

Absent a valid pre-nuptial or post-nuptial agreement, a spouse has the right to an elective share (30%) of the deceased spouse’s “elective estate” upon death. So if the deceased spouse’s will left less than this amount to the surviving spouse, the surviving spouse can seek this larger portion of his/her inheritance right through the probate court.

The right to an elective share remains even if a married couple was in the process of obtaining a dissolution of marriage. Since there is no legal separation in Florida, until the final judgment of marital dissolution is entered by the court, the couple is considered married in the eyes of the law and the right for elective share remains unaffected.

Once the judgment of marital dissolution is entered, things change. For example, prior to the entry of the dissolution order, a husband signs a Last Will and Testament. In that Will, he leaves everything to his wife if she survives him, but if she predeceases him, everything is left to his children. Once the dissolution order is entered, for the purpose of that Will, the now-former wife will be treated as if she predeceased her husband and the husband’s estate will pass to the contingent beneficiaries, his children, even though he did not amend the Will prior to his death.

However, this changed treatment is not true for all estate assets. For example, prior to the dissolution, a husband named his wife as the beneficiary of his life insurance policy, his 401k plan, and his other investment accounts. For our purposes here, we will assume that the dissolution order gave his wife no rights to these assets after the dissolution. In other words, the husband was free to do whatever he wished with these assets. If the husband dies without changing the beneficiary designations, his former wife will still inherit each of those assets despite the dissolution. The husband must take affirmative steps to change each beneficiary designation if he wants to avoid a situation where his former spouse inherits them.

The rules regarding the treatment of the spouses’ homestead can be complicated and will be addressed separately in a future blog.

Interpreting the laws affecting an estate and implementing estate plans during a period of marital status change can be a challenge to those not trained in the subject. The examples in this article are only simple illustrations for discussion purposes. Your rights, obligations and options may be much more complicated. The family law and probate attorneys of Bogin, Munns & Munns can apply the law to your specific circumstances and explain the impact it has on you.

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.

TAGS: Divorce, marital dissolution, estate planning, elective share, disinherit, pre-nuptial, post-nuptial, beneficiary, Last Will and Testament, legal separation, elective share, elective estate

What is Probate?

admin — Thu, 03 Mar 2011 13:00:17 +0000

Probate is a court-supervised process to oversee the transition of the assets of a deceased person (the “decedent”) from his/her sole ownership to satisfy the debts of the decedent, pay any taxes that are owed, and distribute any remaining assets to his/her beneficiaries.

Whether or not there is a Last Will and Testament does not determine if a probate is needed. What matters is whether the decedent owned any assets in his/her name alone without a provision for automatic succession upon his/her death. (A Last Will and Testament does not qualify as a designation for automatic ownership succession upon death.) If there are such probate estate assets, a probate court will generally be required to determine ownership.

Below are a few examples that may help illustrate the above:

If you own a bank account jointly with your spouse, upon your death, your spouse would not be required to include this asset in a probate case as this asset was not owned in your name alone at the time your death. Your spouse would simply go to the bank with evidence of your passing (a certificate of death), and the account would be put in your spouse’s name alone. The same would be true if you had made a designation of “Payable Upon Death” to someone. However, if you were the only name on the account and there was no designation of a successor, this account would be a probate asset needing the probate court to determine the new rightful owner(s).
If you own a life insurance policy and have designated your brother as your beneficiary, upon your death, a probate will not be required for this asset as you have a designated provision as to the ownership upon your death. However, if your brother passed before you did and you did not name a substitute beneficiary, the insurance company would have no way to properly determine who should be paid. In that case, the policy would be a probate asset as only the probate court could properly determine who should receive the money.

If there are assets that require probate, a person with an interest in the estate will begin the probate process by filing the appropriate petitions with the court in the county in which the decedent maintained his/her primary residence. If the decedent owned real property in a state outside of his/her primary residence, a secondary (ancillary) probate may also be required in that state.

The petitions filed with the probate court include, among other things, information regarding the identity of the decedent, the existence or non-existence of a Last Will and Testament, the assets of the decedent and approximate value of such, the identity of the decedent’s creditors and amount of debt, the identity of the beneficiaries (either from the Last Will and Testament, if there is one, or as determined by law), and the proposed distribution of the estate’s assets.

Depending on the value of the estate, whether any debtor claims are disputed, and whether any beneficiaries contest the contents of the petitions and proposed distribution, more documents and proceedings with the court may be involved. In any case, the conclusion of the probate matter will result in court orders determinative of the ownership of each of the estate’s assets.

Probate will involve the expenditure of money to pay the court and the estate’s attorney. Since the probate process will also take time to complete, you can see there are some benefits to either co-owning assets or setting up an automatic succession for solely-owned assets. However, the probate process is not necessarily something to be avoided as it provides a neutral ground for the resolution of any disputes and enforcement of the decedent’s wishes.

The estate planning attorneys of Bogin, Munns & Munns, P.A. will be glad to assist you with the review of your assets and the planning for minimizing the need for probate. The probate attorneys of Bogin, Munns & Munns, P.A. are available to assist you with the probate of a Florida estate, including the litigation of an estate in which you have an interest.

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.

TAGS: probate, Last Will and Testament, decedent, estate, assets, petition, creditor, beneficiary, distribution, estate planning

Litigation By The Numbers

admin — Mon, 28 Feb 2011 13:00:42 +0000

The general process of suing someone or being sued is referred to as “litigation.” There are various types of lawsuits, but in general, they each follow a set procedure. Below are the major steps you can anticipate along the way.

First, the person who wishes to sue someone (the “Plaintiff”) files a complaint (the “Complaint”) with the Court. The Complaint states each of the alleged facts which constitute the alleged wrong and the resulting damages. The Complaint is delivered to each person being sued in one of a few permitted ways – most often through hand-delivery in a manner approved by the State, such as, by a Sheriff. This is referred to as “service of process”.

Second, the person or persons being sued (the “Defendant(s)”) will then have a fixed timeframe in which to respond to the Court and the Plaintiff. The response can come in the form of denials or admissions of each alleged fact (an “Answer”), claims by the Defendant alleging facts in which the Plaintiff wronged the Defendant (a “Counterclaim”), and/or recognized legal affirmative defenses. “Affirmative defenses” can include claims that the events occurred too long ago to be compensable any longer (statute of limitations), the events are not subject to the jurisdiction of the particular court, and others. Most affirmative defenses are permanently waived if not filed in a timely manner. If the Defendant files any counterclaims, the Plaintiff will similarly have to file an Answer and may raise any affirmative defenses to the Defendant’s counterclaims.

Third, if the Defendant believes that the Complaint is so flawed that it is ineffective, the Defendant may file a motion to dismiss – basically asking the Court to end the litigation since the Plaintiff has not presented a legally-recognized, valid claim against the Plaintiff. The Plaintiff may also file a similar motion if the Plaintiff believes the counterclaim is flawed.

Fourth, if any of the claims survive, the next phase of litigation is for each party to gather facts and other evidence from the other party. This phase is called “discovery” and includes: (a) requests for admissions by the other side, (b) requests for written responses to questions (called “Interrogatories”), (c) requests to produce written documents and other evidence, and (d) depositions (recorded testimony under oath in response to questions from the other side).

Throughout the litigation, it is prudent to constantly analyze the strengths and weakness of your case and the opposition’s case as facts and evidence unfold. The parties may each make settlement offers to the other side to end the litigation, but such offers may have consequences and should be carefully considered before being made. If terms of settlement are agreed upon, the settlement agreement should be carefully written to avoid any future problems.

Fifth, if settlement cannot be reached and the court has not dismissed the case due to a party’s ability to show incurable flaws in the opposing side’s case, then the parties will typically first participate in a mediation (a process in which a neutral person hears both cases and renders an advisory opinion and helps the parties to reach a compromise). If the parties still have not settled, the matter will proceed to trial.

Of course, there are complexities and variations in each case, but the above is a brief, simplified outline for a typical lawsuit. To the person who is not familiar with all of the above and the details related to each phase, it is very easy to make a misstep that could severely decrease the chance for a successful outcome. Competent legal representation can be the difference between coming to a favorable settlement or even winning or losing the case.

The litigation attorneys of Bogin, Munns & Munns, P.A. are experienced in all phases of litigation and will be glad to assist you in evaluating your case prior to bringing a lawsuit and/or representing you during your lawsuit.

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.

TAGS: litigation, lawsuit, complaint, damages, allegations, service, service of process, process service, answer, counterclaim, affirmative defense, statute of limitations, jurisdiction, motion, motion to dismiss, interrogatory, interrogatories, admission, discovery, deposition, settlement, mediation, trial

Florida Liability Insurance Requirements for Private Passenger Vehicles

admin — Thu, 24 Feb 2011 13:00:07 +0000

Whether you plan to drive it or not, if you own a vehicle with a state license plate you must cover it with the minimum liability insurance requirements. Returning your license plate to a driver license or tax collector office is the only way to legally cancel your insurance.

The state’s Financial Responsibility Law and No-Fault Law work together to require each vehicle owner to have certain amounts of liability coverage.

Financial Responsibility Law

The Financial Responsibility Law includes coverage for incidents, such as crashes, for which you are at fault. To meet the state’s requirements, you must have:

$10,000 for one person in bodily injury liability
$20,000 for two or more people in bodily injury liability
$10,000 per crash in property damage liability
$30,000 in combined single limits

No-Fault Law

The No-Fault Law includes coverage for incidents in which no bodily injuries occur. To meet Florida’s requirements, you must have:

$10,000 per person/crash in personal injury protection
$10,000 per crash in property damage liability

Keep in mind these two laws only require you to have basic liability coverage. It’s wise to obtain information regarding optional coverages such as excess liability coverage, uninsured/underinsured motorist coverage and medical payments coverage.

Proof of Insurance and Financial Responsibility

Your insurance company will send the FDHSMV information about your insurance, and the FDHSMV will keep that information in its computer system; however, it is best to keep proof of insurance and financial responsibility available.

Once you get your insurance ID card from your insurance carrier, make sure you keep it in your vehicle at all times.

- 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

Introduction – Using a Trademark to Mark Your Brand

admin — Mon, 21 Feb 2011 13:00:39 +0000

What is a trademark? A trademark is a word, phrase, or symbol, or a combination of them, that is used to identify and distinguish the source of a product from products from other sources. It can be considered as your distinctive marketing brand. For example, famous brands such as Coke^®, Apple^®, and Ford^® are clearly identifiable logos and the unique sources of their products.

A trademark is different from a copyright (which protects artistic or literary works) and a patent (which protects inventions).

You are not required to register your trademark with either the state or federal government. If you do not register your trademark, you can establish your exclusive rights to the trademark (and the exclusion of others using your trademark) through use in commerce – in other words, by using your trademark over time in selling your product. To help establish your claim to the trademark, you should use it consistently and constantly, and include the notation “TM” to alert the public of your claim to ownership of the trademark.

By establishing your trademark through use, your trademark can be limited to a specific geographic area. Also your trademark will be associated with the types of products you produce. This means that the same mark could be used by someone else, in an area where you do not sell your products and/or for a different type of product, without infringing your trademark.

You may register your claimed trademark with the State of Florida if you do not expect your sales to extend beyond the borders of the State.

However, successful registration of your trademark with the United States Patent and Trademark Office (the “USPTO”) provides some advantages to you including:

a legal presumption of valid ownership of the mark;
your exclusive right to use the mark nationwide;
the ability to bring a lawsuit in federal court if anyone infringes your mark;
the right to use the federal registration symbol ® once your trademark has been granted; and
the ability to record the U.S. registration with the U.S. Customs and Border Protection Agency to prevent infringing foreign goods.

You should first develop your mark which you believe represents your product or your company and which will be distinctive. Then a search should be conducted to ensure that someone else is not already using, or has registered, your selected mark. You can then file the appropriate state or federal application for the specific class of products. The USPTO will then begin the examination and possible approval of your application.

Assuming you are successful in establishing your trademark, you will then be able to stop someone from using it, or one that is confusingly similar to it, depending on, among other things, whether:

the trademark is being used on competing goods;
consumers would likely be confused by the 2 marks; and
whether the trademarks are being used in the same market (geographically and/or related products).

The attorneys at Bogin, Munns & Munns, P.A. can assist you with your trademark search, your trademark application (state or federal), and in protecting your trademark against infringing users.

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.

TAGS: trademark, copyright, patent, brand, branding, logo, registration, infringement, servicemark, USPTO, state registration, federal registration, confusingly similar

Get It In Writing

admin — Thu, 17 Feb 2011 13:00:28 +0000

For the most part, an oral contract is as legally valid in Florida as a written contract. There are exceptions though.

Florida law creates a defense to a claim of breach of contract, called the Statute of Frauds. Generally, to defeat the Statute of Frauds and create an enforceable agreement, a contract has to be in writing and appropriately signed in the following situations:

a contract for the transfer of any interest in land. This affects not only deeds but includes, among other things, a lease, an option to purchase, and the grant of a mortgage or easement;
a contract for the sale of goods in excess of $500.00;
a contract in consideration of marriage, such as a prenuptial agreement;
a contract which cannot be performed within one year (excluding contracts of indefinite duration);
a contract guaranteeing the payments of another’s debts; and
a contract by the executor of a will to pay the debt of the estate from his/her own funds.

However, even if an oral agreement would be enforceable in your situation, the better practice is to get the agreement in writing signed by both parties.

Why?

The first reason is to avoid a dispute as to the precise terms of your agreements. Language can be imprecise. Memories fade with time. Signatories die. One party may have a sincere claim that the other party is failing to perform its obligations. If the written contract is sufficiently detailed as to each party’s obligations and rights, reviewing it and refreshing everyone’s memories may be sufficient to resolve the dispute.

The second reason is a matter of proof. Should the two parties be unable to resolve their dispute and seek a judicial resolution, the court will be able to analyze the terms of agreement without relying solely on the “he said-she said” testimony. It will be difficult for one party (say, Joe) to convince a court that he never agreed to do “X” if the written contract clearly says “Joe will do X.”

A court will generally only look to the actual written contract to determine what had been agreed upon. Therefore, your contract should be clear and thorough and contain every term that you think is important to your agreement. If the contract is vague (imprecise) or contains ambiguities (inconsistencies), the court may allow oral evidence (called “parol evidence”) to aid in the court’s job of interpreting the contract.

The same requirements apply to a modification of an existing contract. If the two parties agree to change the terms of a contract after they sign it, a contract modification should be put into writing documenting exactly what changes have been agreed to. If the modification is not so documented, the court may either determine that the modification is not valid or may take the parties’ conduct into account when determining issues such as liability and damages.

A corporate, probate and estate planning attorney at Bogin, Munns & Munns, P.A. can help you to draft a contract or an amendment to evidence the terms you have agreed upon, to review and revise a contract or amendment that the other party has prepared for you to sign, to review a signed contract to interpret your rights and obligations, or to sue the breaching party or defend you in the case of an alleged breach.

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.

TAGS: contract, agreement, oral contract, oral agreement, written contract, written agreement, validity, invalidity, enforceable, enforceability, Statute of Frauds, modification, amendment, deed, mortgage, option, lease, easement, prenuptial agreement, sale of goods, guaranty, proof, breach, breach of contract, interpretation, parol evidence

Bankruptcy Basics

admin — Tue, 15 Feb 2011 13:00:23 +0000

Bankruptcy is a process in which a consumer or a business can eliminate or reduce (also known as “discharge”) some or all of his/her/its debts under the rules and procedures of a federal bankruptcy court. There are several types of bankruptcies – generally referred to by the chapter under the United States Code which regulates them. The 2 basic categories are liquidation (Chapter 7) and reorganization (generally a Chapter 13 for an individual and a Chapter 11 for a business).

Under Chapter 7 liquidation, the court-appointed trustee will look to sell any of your non-exempt assets as needed to pay off some of your debt. A Chapter 7 may be filed by an individual consumer or by a business. In return for the liquidation, you will generally be relieved of most or all of your unsecured debt. You will have the option to pay the debts on your secured debt or turnover possession of the collateral to the creditor.

In order to file a Chapter 7, you must establish that your disposable income does not qualify you for Chapter 13 reorganization. While Chapter 7 is generally referred to as a “fresh start” since it wipes out most of your debt, be aware that a Chapter 7 will not work on certain types of debt such as tax obligations, criminal penalties, most student loans, child support or spousal obligations.

Under Chapter 13, you propose a repayment plan of your debts to the Court. The plan will be for either the next 3 or 5 years. During the time after you file a Chapter 13 petition, the bankruptcy court will issue an order preventing most of your creditors from taking any action to collect a debt against you or your property. This is referred to as the “automatic stay.”

The court will confirm your plan if your plan’s proposed monthly payments are sufficient, reasonable and acceptable to repay some or all of your debt, including a portion of your back debts. Part of the process involves a meeting of your creditors as well as an appearance before a bankruptcy judge to confirm your plan. Under a Chapter 13, there is no court-ordered selloff of your assets. Subject to limitations, you may “cram down” any secured debts that are greater than the value of the collateral.

There are many factors that will help you determine whether or not either of the 2 bankruptcy options above are a good choice for you. A consultation with a qualified attorney at Bogin, Munns & Munns, P.A. may be a good investment of your time and money in making a decision.

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.

TAGS: bankruptcy, debt, Chapter 7, Chapter 11, Chapter 13, debtor, creditor, cram down, automatic stay, discharge, fresh start, liquidation, reorganization, debt relief, trustee, secured debt, unsecured debt, collateral

Organizing the Estate Plan – Your Last Will and Testament

admin — Fri, 11 Feb 2011 15:25:29 +0000

When you decide to undertake your estate planning, the most important initial step is organization. Without all of the relevant information, neither you nor your lawyer can prepare the best estate plan for you. An added benefit is that your efforts will make it much easier for your loved ones to carryout your wishes, reduce their anxiety, and save them money.

What is your estate? An estate is not something only owned by the wealthy. In legal terms, your estate is simply all of your possessions – whether it is your house, your vehicle, a life insurance policy, a bank account, your tools, or a coin collection. All of those items taken together are your estate.

What is an estate plan? An estate plan is two things: (1) a set of instructions of what you want to happen to and for you if you ever become incapacitated (such as a Durable Power of Attorney and/or a Living Will) and (2) a set of instructions of what you want to happen to your assets (your estate) when you pass away (for example, a Last Will and Testament). For now, we are going to only address the second goal.

First, gather any legal document which is relevant to each item you own. Examples would include the deed to your house, the title to your car, the savings bonds you purchased, and recent statements from your bank or broker. These documents (and other important documents like your Will) should be kept in a fireproof, waterproof, secure location known to your beneficiaries. This collection of documents will all help you to prepare the inventory of the things you own. Of course, you do not need to be as detailed as listing each cup and saucer, or knife and fork, but the general idea is to list the items of value so you have a better sense of your possessions. Once you write it down, it may be more than you thought.

Next, consider who you want to receive each item in your inventory when you pass away. Florida law will restrict some of your choices if you are married or if you have minor children. If you own property jointly, the manner in which that property is held will further determine if you can alter who will inherit your interest in the property upon your passing. An estate planning lawyer will be able to answer your questions to your specific property in detail. (The limitations referenced above will be discussed in a future blog.)

Next, gather all the information that may assist your beneficiaries with respect to your financial affairs. What credit cards do you hold? What insurance policies do you maintain? Are you eligible for any death benefits from the government or a former employer? What bills need to be paid while your estate is being settled – such as a mortgage, utilities, and car loans? What bills are paid via automatic draft? If your accounts have passwords, it may be difficult for your beneficiaries to timely access these accounts and/or stop payments.

These are only some of the organization steps you can take. Attached is a sample Letter of Last Instructions which may be a useful template for you to gather information and provide the information in an organized manner to those you leave behind. Please note that this Letter of Last Instructions is not a legally binding document and does not and cannot replace a validly executed Last Will and Testament.

This Letter of Last Instructions is also useful as a tool to initiate discussions with your loved ones regarding the plans you have made. Since it does not include any sensitive information as to whom you are leaving any possession, it can be and should be shared freely with your loved ones once you have completed it. Clear communication is the best tool for avoiding any confusion or arguments in the future.

As your circumstances change, keep your Letter of Last Instructions (and your estate planning documents) updated and shared with your beneficiaries as appropriate.

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.

Business Ownership Changes – Planning Ahead

admin — Wed, 09 Feb 2011 14:40:05 +0000

You have taken your small Florida-based business to the next step either by forming a corporation or a limited liability company (LLC) through filing the necessary papers with the State of Florida. Legally, you may have met all of the State’s requirements. But have you taken all of the steps you should take to protect your interests?

Changes to your company will occur; some voluntary, some not. Have you made plans to adapt your business as these changes happen, or do you intend to wait until the situation arises before you address them? I think you will agree the surprise factor offered by the “wait and see” approach is not a good business plan.

If you own a business with one or more other people, have you considered what you would do if:

- a co-owner wants or needs to sell his or her interest?

- a co-owner passes away or becomes legally incompetent?

- a co-owner gets divorced or married?

- a co-owner files bankruptcy?

- a co-owner is subject to a judgment lien?

- the co-owners can no longer get along?

- a co-owner leaves and wants to start up a new competing business?

The list can go on. While no one wants to start a business being pessimistic, the reality is these challenges may come up.

If ownership changes do occur for the reasons above or otherwise, how will it impact the management and control of the business? What if someone buys out everyone’s interest but yours, leaving you as a minority owner with little or no say in the management of the company? Is that a situation you are prepared to face? What if a co-owner sells his or her interest to someone you cannot personally tolerate? Again, this is a situation you should do your best planning to avoid.

These issues are often overlooked by new businesses as the owners have focused most, if not all, of their energies and financial resources on getting the business up and running.

However, these are all important questions that you and your co-owners should consider and document when you first start out – as this is the time when you are all most likely to agree on such issues. Later, when major or minor disputes arise, it will be more difficult to gain unanimous agreement.

These answers and more should be addressed in carefully negotiated documents – bylaws and a stockholder agreement (for a corporation) or an operating agreement and a membership agreement (for an LLC). In this way, you can control, without any surprises, the ownership and management of the company if any of the above situations occur.

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 lawyer who practices in the area of corporate law at Bogin, Munns & Munns, P.A. will be well qualified to assist you with these matters.

TAGS: corporation, limited liability company, LLC, company, shareholder, owner, owner dispute, stockholder, shareholder agreement, stockholder agreement, membership agreement, by-laws, bylaws, operating agreement, buy-sell agreement, dispute, majority interest, management, disability, buyout, divorce, judgment, bankruptcy, sale

The Truth About Floridas PIP System Insurance Company Math

admin — Mon, 07 Feb 2011 14:38:58 +0000

In the 1970’s the Florida legislature passed the first Personal Injury Protection (“PIP”) law. This law arose out of a desire to insure that those that were involved in automobile accidents had access to healthcare and were not an unreasonable burden on the governmental sources of medical care. The Florida Supreme Court states that one of the purposes of PIP is to provide quick, and virtually automatic payment of medical bills arising out of injuries incurred in an automobile crash. The law provided for up to $10,000 in benefits, and almost 40 years later that number has not changed.

The truth about this, as with most systems, is that most try to use it in a reasonable and moral manner. However, there are always those that push the limits. PIP is no different. There are insurance companies (most of them at one point or another) that refuse to pay legitimate claims in the interest of improving their bottom line; and there are lawyers who bring claims for the sole and express purpose of earning a fee, and there are medical providers that perform extra procedures and charge higher prices, because there is PIP to pay it.

In order to keep insurance companies in check, because they clearly have more resources than those they insure, the Florida Legislature provided that when the insurance company has to be sued to recover benefits, the insurance company must pay the costs, and attorney’s fees for bringing that suit, regardless of the amount sued over. While at first blush, a case generating $10,000 or more in attorney’s fees, that is brought over a $5.00 medical bill, may seem ridiculous, ask yourself why the insurance company did it in the first place. It’s all a matter of volume. If they reduce a million claims a month by $5 the insurance company can keep an extra $60,000,000 a year in its coffers. That is a lot of money! Even if the insurance company has to pay millions of dollars to attorneys over that year to defend the questionable reductions, it still nets a profit from the reductions. This is INSURANCE COMPANY MATH, and unfortunately, it is done all the time in the interest of improving the company’s profits, and without concern for fairly evaluating claims.

– 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

A Bird in Hand is Worth Two in the Bush: The Advantages of Mediation in Civil Disputes – Part II

admin — Tue, 01 Feb 2011 15:35:24 +0000

After I wrote my first “A Bird in the Hand…” blog in August, 2010, I received some great feedback from readers in the community which inspired me to write this follow up. There is much more information relevant to this topic that I was unable to originally include due to size limits. I’m pleased to have the opportunity to provide more information on why I am a proponent of mediation in the civil law system.

A very experienced mediator once told me that he sat on Florida Supreme Court appointed committee. The charge to the committee was to write a legal brief entitled “How to try a $25,000 case for $25,000.” According to the mediator who was telling me the story, the committee members met, and decided that the task could not be accomplished. The committee members decided that it was virtually impossible to take a case through trial for $25,000. Therefore, the committee went back to the Florida Supreme Court and asked if they could change the brief to “How to try a $100,000 case for $100,000.” Most of my clients do not have $100,000, let alone $25,000, to risk at trial. Therefore, mediation is often the only realistic way that my clients can find a resolution of a case, particularly if the other side has more money and thus can afford to run them around in court. So one reason that mediation is often a wise decision is simply the realities of the economics of litigation.

Another reason to resolve a case by a mediator is the expertise of the mediator. The mediator is specifically chosen by the attorneys in the case for his or her expertise and background. For example, most of my practice involves either disputes between businesses or complex real estate issues. I have a number of mediators that I use in these disputes because they have the background in complex business and/or real estate litigation, having practiced in these areas for many years as a private lawyer. I would not choose, for example, a mediator whose sole area of practice was as a family law attorney for a shareholder dispute or a sophisticated real estate title dispute. Unlike a Judge who is assigned at random – for better or for worse – a mediator is specifically selected by the parties for his or her expertise, knowledge, mannerism, mediation style, and effectiveness.

Finally, a defendant who agrees to pay at mediation is more likely to actually follow through and pay than a defendant against whom a judgment is imposed. You may ask “why” – after all, if the defendant didn’t follow the law to begin with, why would he/she follow through with a mediation agreement? You are right, the defendant may not. We no longer have ‘debtors prisons’, so a defendant who is not worried about his/her credit or having a judgment imposed likely won’t follow through. But statistics show that a party is more likely to voluntarily pay a mediation agreement as opposed to voluntarily paying a judgment entered again him or her. A mediation agreement is agreed to; a judgment is imposed, and the defendant likely will disagree with it and fight to avoid payment (and perhaps appeal).

The official comment to The Florida Bar’s Rules of Professional Conduct Rule 4-2.1 says “a lawyer shall not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client”. Some lawyers cannot risk the temptation to buy-into the client’s anger and feeling of victimization and in doing so, will lose sight of the objective advice that he or she was hired to provide. While zealous advocacy of a client’s position is an attorney’s obligation, the attorney cannot let the aggression (or the prospect of earning more fees if the litigation continues) cloud his or her judgment. The attorney must be the objective voice. Counseling a client in ways to achieve a resolution of a case – and save attorney’s fees and eliminate risk of continuing to litigate – is often the best advice I can give my clients.

– 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.

Fast Tracking Commercial Foreclosures With The Pay-to-Play Statute

admin — Tue, 01 Feb 2011 14:37:52 +0000

The foreclosure crisis continues to clog our court system and negatively affect our economy. Many solutions have been debated and implemented in an attempt to quicken the foreclosure process so that balance may be restored to the court system and housing market.

A little known statute, Fla. Stat. §702.10(2), may be the solution for non-residential foreclosures (at least from the lender’s perspective). This statute is commonly referred to as the “pay to play statute”. Fla. Stat. §702.10(2) provides an accelerated litigation procedure by which a lender may request an order for entry of final judgment of foreclosure as soon as the verified foreclosure complaint is filed with the court. Under this statute, the court will then immediately review the complaint and order the borrower to provide evidence as to why the final judgment of foreclosure should not be entered between 20 to 60 days from the date of said order. If the borrower fails to respond to the requirements of this order by (a) failing to appear at the evidentiary hearing to show cause, (b) failing to file any defenses to the verified complaint, or (c) filing an answer that does not contest the foreclosure, the court may then enter the final judgment of foreclosure ordering the clerk of the court to conduct a foreclosure sale without any further pre-judgment procedural action required by the lender.

In addition, if the borrower shows sufficient cause during the evidentiary hearing, the lender may also request that the court enter an order requiring the borrower to pay pre-default mortgage payments during the pendency of the foreclosure action or permit the lender to assume physical possession of the subject property if the payments are not timely made by the borrower. This may prove especially difficult for a borrower who signed an assignment of rents agreement with the lender. In such case, the borrower may not use the rents generated from the subject property to pay for the required payments as the lender has a lien on said rents.

As a result, this statute is a powerful tool for lender’s counsel. The Florida legislature clearly intended to hold borrowers accountable who delay the foreclosure process by contesting the foreclosure without cause. By prosecuting a non-residential foreclosure under this statute, the borrower must now pay for its delay tactics. This statute has been upheld as constitutional by the Florida Supreme Court in Caple v. Tuttle’s Design-Build, Inc., 753, So.2d 49 (Fla. 2000).

At Bogin, Munns & Munns, P.A. we provide a broad range of legal and title services to assist lenders with residential and commercial foreclosures, title claim resolution, REO resale and other real estate closings, loan workouts, and loan restructuring throughout the State of Florida.

– Henry M. Cooper, 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. He welcomes questions and comments regarding the above and can be reached at hcooper@boginmunns.com.

The PIP Fee Schedule

admin — Sat, 22 Jan 2011 14:22:11 +0000

The PIP statute still provides that PIP insurers can pay 80% of reasonable medical expenses. However, the PIP statute also allows PIP insurers to pay based upon a fee schedule. This fee schedule is known as the PIP fee schedule. The PIP fee schedule utilizes the amount allowed by the participating physicians fee schedule of Medicare Part B or the amount allowed by the workers compensation fee schedule to determine the reasonable rate of reimbursement for a particular medical service. Most auto insurers utilize the PIP fee schedule to determine reimbursement rates.

HOW DOES THE PIP FEE SCHEDULE WORK

1. The charge for services billed to PIP insurers will be the same as what is charged to other insurers and clients.

2. The insurer will determine if the participating physicians fee schedule of Medicare Part B or the workers compensation fee schedule pays for the code billed.

3. If the participating physicians fee schedule of Medicare Part B pays for the service billed, the insurance company will pay the higher of the amount allowed by the participating physicans fee schedule of Medicare Part B in effect at the time of service or the 2007 participating physicians fee schedule of Medicare Part B.

a. The 2007 participating fee schedule of Medicare Part B is the default schedule. An auto insurer cannot make payment to the provider less than 200% of the amount allowed by the 2007 participating fee schedule of Medicare Part B unless the provider charged less than 200% of the amount allowed by the 2007 participating fee schedule of Medicare Part B.

4. If the participating physicians fee schedule of Medicare Part B does not pay for the service billed, the insurer will pay the amount allowed by the workers compensation fee schedule.

5. If the service billed is not paid by Medicare or worker’s compensation, the PIP insurer does not have to pay for the service.

6. A medical provider cannot charge a patient the difference between the amount allowed by the PIP fee schedule and the amount charged by the medical provider.

The application of the PIP fee schedule can be very complicated and is currently the subject of much litigation. Neither the patient nor the medical provider should accept an insurance company’s determination of the appropriate reimbursement rate. In order to determine whether a PIP provider has paid medical expenses properly, one should contact an attorney that specializes in PIP. These attorneys generally do not charge the client for their services.

Why Do I Need a Lawyer if The Drivers Insurer is Already Offering the Policy Limits?

admin — Thu, 20 Jan 2011 19:53:29 +0000

There are several misconceptions regarding whether an injured person needs to consult with an attorney following an accident. Even when the facts of an accident seem to be “simple and straightforward,” there are often several complicating factors that only an experienced attorney can recognize and advise you on.

By way of example, let’s say you are stopped at a traffic light, and your vehicle is rear-ended by someone else who was not paying attention. It is a serious collision that involves both vehicles being totaled, and you are taken from the scene by ambulance and spend several days in the hospital. After you are discharged from the hospital, you receive a call from the at-fault driver’s insurance company. The insurance adjuster says the at-fault driver has a $10,000 insurance policy which they are willing to pay you immediately in exchange for a release of their insured (i.e. in exchange for the $10,000 you agree not to sue the at-fault driver). Why do you need a lawyer? There are many reasons. Here are four.

First, if you have underinsured motorist coverage on your automobile policy, and your damages exceed the amount of insurance available from the defendant’s policy, you can make a claim against your own policy. However, one of the conditions of being able to make this type of claim is that you obtain the consent from your own insurance company before you release the insured. This process can be complicated, and if you were to sign the release before going through this process, you would likely be prevented from even making a claim with your insurance company. This could cost you tens of thousands of dollars.

Secondly, there may be other insurance involved besides the driver’s. He may have been on the job, working for his employer, which could trigger coverage under the company’s insurance policy. Additionally, any owner of the at-fault vehicle is responsible for your damages, not just the driver. A careful vehicle title search must be conducted to determine all potential defendants and insurance policies.

Third, the at-fault driver and / or owners may have assets that would enable them to pay something in excess of the $10,000 policy limits in our example. To determine this, attorneys use several tools, such as an asset search and financial affidavits completed under oath by the defendants.

Fourth, if your medical expenses are paid under a governmental plan such as Medicaid or Medicare, or by a private health insurance company, each will normally have a right to be reimbursed for medical expenses it paid related to your injuries. The last thing you need is to receive a letter several months after the accident from one of these entities, claiming they are owed thousands of dollars. The laws governing these reimbursement rights are complicated and an experienced attorney can help you navigate through them.

For the reasons stated above, and many others, it is best to consult with an Orlando personal injury attorney following an accident, even those that seem “simple and straightforward.”

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

Premises Liability Accidents in Florida

admin — Tue, 28 Dec 2010 15:53:55 +0000

I have represented many folks injured in slip-and-fall or trip-and-fall accidents in Florida over the last 17 years. During my initial client meetings, most new clients tell me that because an accident occurred on someone else’s property, the property owner is 100% at fault. Under Florida law, a property owner is not automatically responsible for injuries and damages that an injured person has sustained. This is a common misperception among the populace. (Please note that Florida also does not recognize common law marriage.)

Florida has adopted and codified the concept of “comparative fault” in Florida Statute Section 768.81. This means that any fault chargeable to the Plaintiff diminishes proportionately the amount of economic and noneconomic damages that a Plaintiff may recover from a jury, but does not bar recovery. The trial court must then apportion a Plaintiff’s damages based upon the percentage of fault found by the jury on the Plaintiff. For example, if a jury awards a Plaintiff the amount of $50,000.00 but finds that the Plaintiff is 50% at fault, the trial court will automatically reduce the jury’s verdict down to $25,000.00.

While it is extremely rare when a jury finds that a Plaintiff is 0% at fault in a premises liability case, the comparative negligence system works well in Florida by allowing jurors to truly weigh the evidence concerning liability that is presented to them. It is also a much more fair system than in states that have adopted the system of “contributory negligence”. In these states, such as in North Carolina, if a jury finds that a Plaintiff is even 1% at fault, the Plaintiff’s claim is barred entirely.

After a premises liability incident has occurred, it is important for an injured person to timely report the incident to the property owner, store manager, etc. to ensure that it has been properly documented. Otherwise, the property owner or management company will be able to question whether or not the incident occurred- particularly if there are not any surveillance cameras in the area to document the fall. A store may ask the injured party to complete a written incident report, and if the person is physically able to complete it, the injured person should provide specific enough information to state what caused the fall. The injured person should also request a copy of this statement. However, if the property owner or store manager asks the injured person to give a recorded statement, the injured person should always decline. Also, if the injured person or others with the injured party are carrying a cell phone with a camera, it is highly recommended- particularly in slip-and-fall cases- that photos be taken of the substance that caused the injured party to fall. This is important because the Plaintiff has the burden of proof to show what caused him or her to fall, and in a slip-and-fall case, the evidence of the substance that caused the fall is cleaned up and thrown away by the property owner or by store employees almost immediately after the incident has been reported.

The injured party should also seek immediate medical treatment in the emergency room of a hospital or in a walk-in clinic to make sure that the injured party has not suffered broken bones or a life-threatening injury. In addition, the failure of the injured person to receive immediate medical treatment will allow an insurance adjuster for the property owner/store to argue that there was a delay in treatment, and therefore the injured.

– 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

Can I really get out of paying my mortgage?

admin — Thu, 23 Dec 2010 15:49:30 +0000

It is no secret that the housing and mortgage industries are both in a real mess. Although everyone likes to point the finger at the other, it seems very clear that lenders and borrowers each share in some of the blame. In the wake of ever increasing foreclosure filings, many borrowers are looking for loopholes to avoid having to pay back the loan they agreed to and benefited from to purchase their property. Here is one recent example:

Just The Facts, Ma’am!

Husband and Wife own a home in Florida and declare it to be their homestead. Later they decide to also purchase the home next door. They hire a mortgage broker to assist in securing a loan on their behalf. Because Wife’s credit rating is superior, all loan applications are completed only in Wife’s name. All paperwork submitted to the lender state the purchase of the residence is for investment property only, and not even as a secondary residence. The note, mortgage, and related closing documents are only in the name of Wife and only signed by Wife. In reliance upon the closing documents, the lender provided the money for the purchase of the property. The deed for the property, however, was put in the name of both Husband and Wife. Shortly after the closing, Husband and Wife move to the new house (which was their undisclosed intent all along), declare the new home to be their homesteaded property, and rent out their old property next door. After nearly two years, Husband and Wife stop making loan payments on the new home. A foreclosure case is filed and Husband and Wife declare the mortgage to be void because, among other reasons, the note and mortgage were not signed by Husband. In short, they claim that Husband’s homestead protections trump the right of the lender.

Homestead Laws: Protections You Can Take to the Bank!

The Florida Constitution provides strong protections of the ‘family home’ against creditors. In short, Article X, section 4(a) states that a homeowner’s property is exempt from forced sale by creditors. There are three limited exceptions to the rule: (1) unpaid property taxes and assessments for the property, (2) mortgages for the purchase, improvement or repair of the property, and (3) liens for work performed on the homestead (such as home repair work). Under the above facts, however, Husband did not execute mortgage documents, and thus did not actually consent to the imposition of the mortgage lien. As such, the mortgage would be unenforceable against his interest.

Equitable Liens: Fairness Prevails in the End!

This of course would result in a windfall to Husband since the lender’s money was actually used to by him to obtain the property. Recognizing this inequity, the Florida Supreme Court has been clear that the homestead protections can be used only as a shield, not as a sword. The Court has also ruled that homestead protections, though generally impenetrable, can be pierced in situations where it would be inequitable for one party to retain a benefit without paying fair value for it. In these situations, the courts would impose an equitable lien against the Husband’s interest in the property to replace the mortgage lien in order to avoid an unjust windfall of the Husband at the expense of the lender. Obtaining the equitable lien, however, can be expensive and take time.

Consult an Attorney!

Whether you are purchasing a home or lending money to assist another person’s purchase of property, it is generally a large investment. Spending a little money to have a qualified attorney represent you at the closing (and revise documents as may be necessary) will give you peace of mind that your intent will be carried out with less stress, headaches and expense in the long run. Being penny-wise by not hiring an attorney up front may end up being pound-foolish for you in the end!

– 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.

What is my doctors role in an auto accident case?

admin — Mon, 13 Dec 2010 20:34:42 +0000

When a new client retains Bogin, Munns & Munns for an automobile accident case, they often ask why they must seek medical attention even when the other party was clearly at fault. The answer is simple. To determine if there are permanent, accident related injuries. Unfortunately, it is not enough to just be an injured victim involved in a motor vehicle accident in order to receive compensation for pain and suffering. According to Florida law, an accident victim may only recover from pain and suffering when they meet the Florida threshold requirement. In its simplest form, the threshold states that in order for an accident victim to be awarded pain and suffering after a motor vehicle accident, they must: 1) sustain significant scarring; 2) be killed as a result of the automobile accident; or 3) sustain a permanent injury. Thus, if a client is not killed or significantly scarred by a motor vehicle accident, they must be examined by a physician in order to establish whether or not they have sustained a permanent injury. If none of these criteria are met, then a client may not be entitled to more than the costs of their medical bills – regardless of any inconvenience or hardship.

Therefore, it is essential that a client see a doctor immediately following an accident. Unfortunately, a doctor cannot assess a permanent injury in one or two visits. Instead, the doctor must develop a treatment regime, monitor client progress, and determine if and when an injury has resolved. Ideally, a client will be released from the doctor’s care in a relatively short period of time. However, if the doctor finds that the injuries do not resolve themselves, then he or she may refer the client to a specialist for a second opinion and/or place the client at maximum medical improvement. Once the doctor determines that a client is at maximum medical improvement, he or she then assigns the client a permanent impairment rating – which is particularly important to lawyers handling an auto injury case. The doctor then drafts a narrative report which includes the doctor’s overall medical assessment, final diagnosis, and any recommendations that he or she believes may be a medical necessity for the client in the future. This document becomes one of the most influential forms of medical evidence because it is written by a doctor within a reasonable degree of medical probability, which is often used to determine the value of your case.

Obviously, no one wants to be permanently injured in an accident. However, if a permanent injury does occur, it is important to remember that the value of a lawsuit is strongly dependent upon a doctor’s overall diagnosis, recommendation, and estimated client medical expenses. Therefore, compliance and cooperation with a doctor’s recommended treatment schedule is beneficial not only to one’s health, but also to an auto accident case for it assists in determining whether or not a client may recover for pain and suffering.

– 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

Am I Entitled to Overtime Compensation?

admin — Thu, 09 Dec 2010 13:00:03 +0000

This is a common question for employment lawyers, however, it is not always a simple question to answer as it often involves looking at a number of different factors before a proper answer can truly be given. It is always prudent to speak with an attorney as many misconceptions exist among both employers and employees as to overtime. Such analysis starts with the Fair Labor Standards Act (“FLSA”). The FSLA is a federal law that provides guidelines for overtime pay as well as minimum wage requirements, and child labor restrictions.

Not every employer is covered by the FLSA. For example, if the company in question has less than $500,000 in annual business volume, then the FLSA may not apply. There are, however, some exceptions to this rule.

Additionally, the FLSA, like many other employment laws, may not apply if the affected person is an independent contractor (as opposed to an employee). However, employers often improperly designate employees as independent contractors. Additionally, when examining whether the FLSA applies to a person the employer has designated as an independent contractor, the courts apply an “economic realities” test that is more stringent than many of the tests used with other employment laws.

Finally, even if the company and the prospective employee fall under the FLSA, there are still a number of exemptions to the FLSA that may apply. For example, there are exemptions that apply to certain executive, administrative, and professional employees. Other exemptions exist for outside sales employees, certain skilled computer professionals, and several other categories of employees. Of course, employers often improperly categorize employees as exempt from the FLSA’s overtime requirements, so speaking with a qualified attorney is always advisable.

Ultimately, as was noted in this brief article, overtime questions can often be more complicated than they initially appear for both employers and employees. The employment attorneys at Bogin, Munns, & Munns, P.A. can offer advice and assistance at any stage of a matter involving overtime compensation questions and have significant experience in representing both employers and employees in such disputes.

– 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

Full Coverage Auto Insurance In Florida

admin — Mon, 06 Dec 2010 15:02:29 +0000

Prior Bogin, Munns & Munns bloggers have provided excellent explanations as to what types of auto insurance coverages are required by law in Florida, and the importance of carrying additional coverages such as UM (Uninsured/Underinsured Motorist Coverage), BI (Bodily Injury Coverage) and Medical Payments Coverage. What is considered “Full Coverage” in Florida? Contrary to popular belief, “Full Coverage” in Florida means that a policy holder has both PIP (Personal Injury Protection) and PD (Property Damage) coverage as required by Florida law. However, having these two basic types of coverages does not mean you are fully protected if you are involved in a car accident. The phrase “Full Coverage” has therefore caused quite a bit of confusion amongst vehicle owners as well as those who have been involved in auto accidents.

It is important to have “Full Coverage” as it is required by Florida law. It is also important to carry other supplemental coverages in order to limit your liability if you are at fault for an auto accident and/or to provide additional coverage should you suffer an injury at the hands of an at-fault driver who has minimal or no coverage. For example, if you are injured in a car accident as a result of someone else’s negligence then you may claim damages from the person who caused the accident. To be eligible for such a recovery, the at-fault party must have BI coverage.

UM is a supplemental coverage option to consider that provides you the right to claim damages from an accident caused by another driver even if the other driver does not have BI or if the other driver’s BI coverage is too small to compensate your damages. UM coverage essentially insures against the negligent driver’s missing and/or inadequate BI coverage. UM provides the added peace of mind that you are more adequately covered in the event of a crash, particularly in accidents involving uninsured or underinsured drivers.

– Eric M. Petersen, 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. Petersen welcomes questions and comments regarding the above and can be reached at epetersen@boginmunns.com .

Looking To Employers As A Potential Source Of Insurance Coverage In The Case of Auto Accidents

admin — Mon, 29 Nov 2010 13:00:38 +0000

The subject of this article does not pertain to cases where employees are making a claim under the Worker’s Compensation Act, but rather in cases where the driver of the at-fault vehicle in the “course and scope of employment.” Florida law is well settled that both the owner of a vehicle and the driver are liable for negligence in automobile accident cases. There is another layer of potential insurance coverage that must also be explored and is important to be aware of if involved in an automobile accident involving injuries. Florida law is clear that an employer is liable for the negligent, reckless, intentional, and even criminal acts of its employees committed within the course and scope of his or her employment. Basically, the person making the claim must merely show that the negligent conduct or act was committed while the agent or employee was acting for the principal or employer. This principal may also apply to cases other than automobile accidents.

Florida law consistently applies a tripartite standard to determine whether the actions fall within the course and scope of employment. The three prongs of this well-established test are whether the conduct: (1) is the kind the employee was employed to perform; (2) occurred within the time and space limits of the employee’s employment; and (3) was activated at least in part by a purpose to serve them employment.

An Accident Report may not disclose the information needed to make this determination. Thus, if involved in an automobile accident, it is important to note and business indications on the vehicle of the at-fault party and to listen for information indicating the party was on the job at the time of the collision. This is the type of determination that is best sorted out by a qualified attorney that specialized in automobile accidents, as in some cases an affidavit or deposition is the only way in which to know for certain whether there is in fact another layer of possible insurance coverage.

Family & Medical Leave Act

admin — Wed, 24 Nov 2010 14:09:07 +0000

In 1993, Congress enacted the Family & Medical Leave Act or FMLA, for short. Generally speaking, the FMLA requires covered employers to afford eligible employees up to twelve (12) weeks of unpaid leave for the birth or adoption of a child or for the care or treatment of a serious health condition afflicting the employee or the employee’s spouse, child, or parent. The FMLA also applies to step children of the employee and to non-biological parents of the employee.

Under the FMLA, employers may not terminated employees because they are taking or are going to take FMLA-qualifying leave. Instead, the employer is required to hold the employee’s job open until they are able to return to work or, alternatively, reinstate the employee to a substantially equivalent position to the one they held when they started taking FMLA leave. Notably, under the law, the employee can use FMLA leave intermittently rather than all at once, for example, to accommodate the employee or their covered family member’s doctor’s appointments.

In order to qualify for FMLA leave, the employee must work for one (1) year or more for an employer that employs fifty (50) or more employees within seventy-five (75) miles of the employee’s worksite. As a result of this rule, many small employers and even larger employers with remote worksites are not required to afford employees FMLA leave.

In 2008, Congress amended the FMLA to assist employees who are family members of military personnel. Under these recent amendments, such employees are now entitled to twenty-six (26) weeks of FMLA leave to care for a family member injured while on active duty. Furthermore, these employees may take up to 26 weeks of leave to address various exigencies associated with the often short-notice deployment of a covered family member such as child care, school activities, and financial and legal arrangements. In addition, the amendments provide leave related to post-deployment rest and recuperation and funerals.

Employers are required to actively inform employees of their FMLA rights in writing through workplace posters, employee handbooks, and upon learning that the employee may need FMLA qualifying leave for a qualifying event. Employees who are denied FMLA leave, terminated because they took or are going to take FMLA qualifying leave, or not informed of their FMLA rights and resign from employment unaware of their FMLA rights, may sue the employer for back pay, an additional equal amount as liquidated damages, reinstatement, lost benefits, attorney’s fees, costs, and other equitable relief. Should you have any questions regarding your FMLA rights, kindly contact one of the employment attorneys at Bogin, Munns & Munns, P.A.

Commercial Property Due Diligence: Sink Holes

admin — Thu, 11 Nov 2010 18:03:07 +0000

There are many due diligence items to be considered in the purchase of a commercial property, one of which is a Geotechnical Report. Among other things, the Geotechnical Report reveals the vulnerability of the soils to sink-holes. With the number of Florida sinkholes in various pockets of the state, if the Geotechnical Report reveals soil elements that are conducive to sinkholes a purchaser of a property should proceed with extreme caution. A civil engineer should scrutinize the Geotechnical Report’s recommendations to determine the cost versus reward of moving forward with the proposed site purchase. Make sure to include a due diligence period in your contract that allows you to analyze this potential pitfall.

– 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.

Why Call a Lawyer and Not a 1-800 Number/Referral Service line?

admin — Sat, 06 Nov 2010 06:00:26 +0000

We’ve seen a proliferation of 1-800 numbers or lawyer referrals service numbers advertising in the Orlando area. If you’ve seen these ads, then you’ve heard the ads promise many things, even results, before your case/matter has been evaluated. Perhaps you think this may be the best way to get legal advice. In reality, when you dial these numbers your call is answered by a non-lawyer who can’t give you legal advice. Only lawyers are permitted to give legal advice. If you needed medical advice, you would call a doctor’s office directly and nobody else. Likewise, if you have questions regarding your legal rights, call a lawyer directly…go directly to the source. Lawyers spend at least 7 years at the university level learning the law. Then, lawyers are obligated to pass a rigorous state-specific test before practicing law in a given state. After being permitted to practice law, lawyers are seasoned by years of experience in the legal arena, and their skills are further refined through continual legal education courses.

Research the credentials of prospective lawyers. Don’t be enticed by fancy promises and glitzy advertising when real legal answers are what you seek. Call an experienced lawyer directly and not a 1-800 or referral service line.

– Ryan R. Munns, Esq., is a shareholder at 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 ryan@boginmunns.com.

EASEMENTS

admin — Fri, 05 Nov 2010 20:44:14 +0000

An easement is an interest in real estate. It gives one person the right to use another person’s land for an agreed upon purpose.

Easements involve complex principles and those granting or receiving easements must be very careful in documenting the intentions of the parties.

An easement may be created either by a grant (like a deed) or by operation of law. Easements by grant must be in writing.

Easements by operation of law arise because of facts and circumstances indicating a supposed grant or reservation between the parties. There are “implied easements,” “easements by necessity,” “prescriptive easements” and easements created by condemnation. Analysis of these types of easements is beyond this piece, and the legal requirements for establishing such easements can be complex.

There are basically four ways that easements can be terminated. They can be terminated (i) by merger (where the title of the easement grantee and grantor come together or merger); (ii) by agreement or release, (iii) by end of purpose or necessity i.e. the purpose of the easement comes to an end, (iv) by abandonment; however, in most instances mere non-use alone does not result in abandonment, (v) foreclosure of a mortgage, where the mortgage has a priority (usually by recording the mortgage before recording the easement) and the easement grantee is joined as a defendant in the mortgage foreclosure, and (vi) by expiration if the easement was for a specified time limit.

Easements are centered on “use” rather than “ownership.” The landowner, or grantor of the easement, still owns the land subject to the easement. The grantee or holder of the easement grant is entitled to occupy the easement land only to the extent of the rights conveyed by the easement.

When giving or receiving an easement, an experienced real estate attorney should be consulted and care must be taken to draft the documentation properly.

Avoiding Accidents (Safety Tips)

admin — Wed, 27 Oct 2010 13:48:42 +0000

1. Use caution when proceeding through intersections: Look to the left, then right, then look to the 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 VEIDCLE AND THE VEHICLE AHEAD.

4. Maintain a CONSTANT SPEED. Don’t continually slow down or speed up.

5. DO NOT encourage or participate in AGGRESSIVE DRIVING.

6. PROPERLY MAINTAIN YOUR VEIDCLE, 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! DO NOT TEXT 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. MAKE CERTAIN CHILDREN ARE PROPERLY RESTRAINED in the back seat so they will not be a distraction.

13. AVOID BEING LATE and you will decrease the chances of careless driving.

14. PULL OVER when using your cell phone.

15. PULL OVER when picking up items from the floor.

16. PULL OVER when checking maps, changing music, eating or engaging in personal grooming.

– Ranier F. 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 ranier@boginmunns.com.

Divorce vs. Dissolution Do you know the difference?

admin — Mon, 11 Oct 2010 20:54:42 +0000

Divorce and dissolution of marriage are two terms that many use interchangeably and without understanding the difference. In Florida, marriages are not terminated by divorce, but rather the union of marriage is dissolved. In Florida courts, those seeking to end a marriage file a “Petition for Dissolution of Marriage.” They do not ask for a divorce. Divorce is a legal term that requires a finding of fault. In order to divorce her husband, a wife would have to show misconduct or fault by the husband. In Florida, we have no fault divorce. This means that, although the court does have to make a finding that the marriage is “irretrievably broken,” neither party has to provide evidence that the marriage is ending because of someone’s fault or misconduct. A marriage may be found to be irretrievably broken because the parties can no longer effectively communicate or they have just given up trying. To terminate a marriage in Florida, neither spouse has to provide evidence to the court that would rise to the level of a legal determination of fault, such as adultery or abuse.

– Mary Hoftiezer, Esq., is a domestic 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. She welcomes questions and comments regarding the above and can be reached at mhoftiezer@boginmunns.com

Is it time to review your insurance coverage?

admin — Thu, 07 Oct 2010 14:54:12 +0000

WARNING! You may be underinsured. It happens all the time. Attorneys at Bogin, Munns and Munns, counsel clients who have experienced loss for which they cannot recover. There are three reasons for this and one way to avoid it.

The first, most obvious reason is that in tough financial times, it is easy to adjust your personal or commercial insurance policies to minimum coverage or no coverage at all to reduce or eliminate those burdensome monthly premiums. If you believe in your lucky rabbit’s foot, that may work, but if your rabbit’s foot is an imitation, you could be stuck with devastating losses to your home, your vehicle, your person or your business. In addition, Florida law only requires, in some instances, minimal insurance coverage in some instances, so you cannot rely on another person to make sure you are properly insured. Bogin, Munns and Munns can assist you in reviewing your insurance portfolio and while we cannot write policies or issue coverage, we can very quickly help you determine if you are underinsured.

The second reason clients experience loss is that they either did not read or interpret their insurance policy correctly. Insurance policies can be difficult to read or understand. The reason is that the insurance industry is governed by extensive laws and regulations. To comply with those laws and regulations, insurance contracts often contain words, concepts and terms of art that the every day folks are not familiar with without guidance. If you cannot understand your policy, you may not be getting the coverage you expect. For example, if you purchase a specific type of coverage such as protection from theft for your business, you need to be aware that, as with any policy, there will likely be exclusions or situations in which your insurance company will not pay for theft if it occurs. Bogin, Munns and Munns can review your policies and advise you of your exclusions to determine whether you are getting the coverage you need.

The final reason why clients experience unanticipated loss is that they have purchased the correct coverage and coverage amount, but the insurance company elects not to follow the terms of the contract or operate in good faith in evaluating the claim. When this happens, legal representation often becomes necessary to ensure a claim is resolved in a fair and timely manner. Interestingly, sometimes clients feel as though they are somehow in the wrong for pursuing an insurance company when that company does not stand behind their insured. In truth many insurance companies do the right thing regularly and that is why most claims are resolved without legal representation. However, when you are not getting what you paid for, that is a breech of contract and you should be able to enforce that contract.

At Bogin, Munns and Munns, we are committed to fair and vigorous advocacy for all of our clients. We regularly service the needs of corporations, small business owners and consumers in Orlando. If you are having any issues with your insurance policies of coverage, contact us today for a consultation. We can help.

Where Did My Car Insurance Go?

admin — Fri, 01 Oct 2010 19:29:10 +0000

When it is time to renew your automobile insurance policy, it is important to realize that you also need to update the information that you have previously provided to your insurance company. Many people sign forms and write checks, without thoughtfully considering if they are providing accurate information. But, whether you realize it or not, somewhere in your policy, or on the renewal paperwork, there is language that obligates you to update the information in your original insurance application.

An accurate update is very important because, without it, you might not have insurance available when you need it. If critical information is omitted on the renewal, the insurance company may be allowed to cancel, or void, your coverage without you ever knowing about it. This means that when you get in an accident, and need your benefits, you would be told by your insurance company that you were not covered, and you are on your own, even though you faithfully, continually paid premiums.

One important piece of information for the update is the identity of the people who live with you, who are potential drivers. The insurance company uses this to determine how much risk they are assuming by insuring you, and how much your premium payment should be. Even if you believe that an individual in your home will never actually drive your car, the insurance company often wants you to identify them if they are over a certain age.

This issue is illustrated in Carol A. Abrams v. General Insurance Company, Inc. (508 So. 2d 436 (Fla. 3d DCA 1987). In that case, Mrs. Abrams filled out a renewal form for her car insurance company. The form included a request for the names of all drivers in her household. Since the time of Mrs. Abrams’ original application, her son had turned 16 years old and became a licensed driver. Unfortunately, Mrs. Abrams did not list her son’s name on the renewal form. Subsequently, her son was involved in an automobile accident while driving her car.

The appellate court decided that Mrs. Abrams made a material misrepresentation to her insurance company, by failing to identify her son as a driver in her household, which meant that he was not entitled to insurance coverage for that accident.

Mrs. Abrams learned that it is very important to take your time, and carefully review any requests for information from insurance companies. The wrong answer, or omission of an answer, can lead to no insurance when you really need it.

Examinations Under Oath In The Personal Injury Context

admin — Fri, 24 Sep 2010 15:16:24 +0000

Almost every automobile insurance policy includes a requirement that the insured cooperate with the insurance company’s investigation of a claim. If you are injured as a result of the use of an automobile accident, your insurance company may request that you submit to an Examination Under Oath. An Examination Under Oath is your insurance company’s opportunity to have you give a recorded statement while under oath. You must attend an Examination Under Oath if requested to do so by your insurance company. Failure to attend an Examination Under Oath will result in your insurance claim being denied. This could cause you, at a minimum, to become responsible for medical bills that would have been paid by your insurance company. Do not let this happen. Attend the Examination Under Oath, but do not attend it alone. Let your attorney know immediately that your insurance company has requested that you attend an Examination Under Oath. Your attorney should attend Examination Under Oath with you.

The Examination Under Oath may take place at a Court Reporter’s office or your attorney’s office. There will be a Court Reporter present. You will be asked questions by an insurance adjuster or one of the insurance company’s attorneys. Your attorney can and should be present. Your attorney is not allowed to make objections. Nonetheless, your attorney will still be able to ensure that your interests are protected within this environment. You are required to answer the questions posited to you. Do not answer these questions lightly. Be truthful and be smart. Below are some tips for answering questions at an Examination Under Oath:

Limit your answers to the question asked.
Do not volunteer information.
Do not answer questions that you don’t understand. It is okay to ask the examiner to clarify or repeat a question.
Do not guess. If you don’t know, say you don’t know. If you need to look at documents, such as your doctor’s records, in order to answer a question asked; tell the examiner that you cannot answer the question unless you are provided with the document.
Take a break if you need it.

An Examination Under Oath sounds innocuous, but it can have serious consequences beyond your personal injury protection claim. Remember that your personal injury protection insurer is likely the same company that provides your uninsured motorist coverage. Insurance companies can and will use the information they obtain in an Examination Under Oath to evaluate other claims you have with the insurance company. Take an Examination Under Oath seriously. You personal injury case may depend on it.

Why do Private Roads cause Title Problems?

admin — Mon, 20 Sep 2010 21:00:22 +0000

We have a lot of real estate in Florida where people drive over private roads to get to their property. Then, when they want to sell the property, there is a title problem. The seller always asks, “Don’t I have a legal right to use the road if I have been using it all these years?”

The dirt road has probably been there for many decades …as long as people can remember. It may even be on their survey from when they bought the property … or from when they subdivided the property … or from when they did their land-home package to buy their mobile home. There might even be a description of the road included in the legal description of their property on their old deed or mortgage.

So, how can there still be a title problem? What if the property appraiser or the court house says it’s OK? Is there still a problem?

Yes, there may still be a problem. None of the things listed above actually gives you a legal right to use a private road. An owner of the land that you are driving over must have signed an “Easement” and recorded it in the public records in order for you to have the legal right to cross that property.

People always point out that there is a Florida statute that makes it illegal to landlock property. Or they point out that they could have acquired a right to use the road simply by using it all these years. These are both true; however, to rely on these legal rights for title purposes, you have to go to court and get a court order from a judge ruling that you have the legal right to use the private road. So, unless you have a signed court order, that statute or your prior use doesn’t really help.

To ensure that you don’t have this problem when you go to sell property, consult with a real estate attorney who can do a title search to determine if you have the legal right to use your private road. The real estate attorneys at Bogin, Munns & Munns, P.A. can help with matters relating to private roads and easements. Call Bogin, Munns & Munns, P.A. at (407) 578-1334 to schedule a consultation with a qualified real estate attorney today.

The hard truth about teen driving fatalities and injuries in Florida

admin — Thu, 02 Sep 2010 20:44:32 +0000

It is every parent’s worse nightmare, that phone call letting us know that our child has been injured or worse, suffered a fatal injury, while driving. The truth is that car accidents are the leading cause of death for teenagers ages 15 to 20, according to the National Highway Traffic Safety Administration. Mile for mile, teenagers are involved in three times as many fatal crashes as all other drivers.

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

Selecting a Personal Injury Attorney

admin — Tue, 31 Aug 2010 13:13:58 +0000

Selecting an Orlando personal injury lawyer can be a scary task for those that have never worked with a lawyer before. However, even though this firm advertises and tries to use those advertisements to inform the general public, I stand by what I have said many times. Never choose your attorney based solely upon an advertisement. That is not to say you should not listen to an advertisement and investigate if they are a good attorney to use, but it should not be the only reason you call an attorney.

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.

Are you liable for your landlords past due association assessments?

admin — Thu, 19 Aug 2010 20:55:03 +0000

You currently lease a home or condominium unit located in a community governed by a homeowner or condominium association. Your landlord has notified you that the association charges the landlord periodic assessments pursuant to its governing documents in order to properly maintain the common areas and for other purposes set forth in the governing documents. Your landlord retains the obligation to pay these assessments under the terms of your lease.

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.

A Bird in Hand is Worth Two in the Bush : The Advantages of Mediation in Civil Disputes

admin — Fri, 13 Aug 2010 13:59:31 +0000

The familiar adage “a bird in the hand is worth two in the bush” means it is better to have a lesser, but certain, result than to risk everything for the mere potential of achieving a greater result. I often use this phrase to explain to my clients the benefits of reaching a settlement through mediation by obtaining a certain result, rather than continuing to litigate for a mere potential of achieving more, but risking receiving nothing.

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.

Florida Law Protects Against Wrongful Disclosure of HIV Status

admin — Mon, 09 Aug 2010 15:25:48 +0000

There are a myriad of laws that protect against disclosure of private health information, and rightfully so; your medical condition is a personal matter to be shared only with those with a need to know. Unfortunately, with regard to HIV status, there remains a stigma in society for those testing positive. Fortunately, in Florida, thanks to a relatively recent Florida Supreme Court decision which provided needed clarification of the law, a person may sue in court for money damages for a wrongful disclosure of their HIV status.

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

Lawsuit Myths Propagated By Insurance Companies

admin — Tue, 03 Aug 2010 22:12:46 +0000

Insurance companies have spent millions of dollars to generate myths about how lawsuits are out of control and are a major reason why the United States is suffering through its current financial situation. Insurance companies have propagated beliefs that personal injury lawsuits are on the rise, that medical malpractice lawsuits are responsible for the high cost of medical care and a decrease in the number of physicians, that personal injury claims destroy business, and that overall personal injury claims are ruining our society. These are myths intended to destroy our civil justice system, which has been and should remain the cornerstone of our freedom and civilization.

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

[1] Federal Tort Trials and Verdicts, 2002-03, Bureau of Justice Statistics. 8/17.2005

[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

Do you need a Durable Power of Attorney?

admin — Tue, 27 Jul 2010 15:27:59 +0000

The Durable Power of Attorney is traditionally one of the basic documents executed when undertaking your estate planning, creating a mechanism to handle your financial affairs prior to your death. However, because of the broad powers granted in it, you should analyze the associated risks and benefits before signing one. In some circumstances, you are better off without it.

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.