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.
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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.
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.
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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.
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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.
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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.
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.
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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.
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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).
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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 2nd 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 2nd 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.
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