Reunification is an equitable doctrine in Florida.  In 2013 the 2nd DCA heard the case Fintak v. Fintak, 120 So.3d 177.  Generally, under English law as interpreted by American courts  and individual is estopped from contesting the validity of a document that they received and retained a gift from.  The Florida Supreme Court gave 3 reasons for this rule in Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950):

1. to protect a fiduciary in the event the contested document is held invalid;
2. to demonstrate sincerity of the contestant; and
3. to have the property available for disposition at the conclusion of the contest.

In Fintak, the facts showed that the husband would either own 1/2 title of the property or the entire property.  Because he would own the 1/4th either way,  the Florida Supreme Court said that “This is a case where the donee would not receive under the will a benefit to which he would not be entitled except for the will, in which event no election is required. A reunification in such a case would be more a form than a substance, for even if he lost in his suit to establish a resulting trust on the theory that the property is not part of the wife’s estate and consequently not subject to devise, he would still be entitled to take under the Will.” Fintak at 184 citing Mendary at 890.

The Court also stated “However, as we held in the context of the renunciation rule, an individual cannot be estopped from challenging an instrument by accepting that which he or she is legally entitled to receive, regardless of whether the instrument is sustained or overthrown.”  Fintak at 184 (citing Head v. Lane, 495 So.2d 821 (Fla. 4th DCA 1986) and In re Will of Smith, 158 N.C. App. 722, 582 S.E. 2d 356 (N.C. Ct. App. 2003)).

Thus, the court held that “the settlor of a self-settled trust funded with his own assets is not required to renounce any benefits received under the trust before he can challenge its validity.”  Fintak, 120 So. 3d at 179.

Florida law will not allow a person to benefit from a trust or will while simultaneously challenging the validity of that trust or will.  The Fintak case shows a small exception to this rule.  Generally, if a person wishes to challenge the validity of a trust or will, then that person must generally renounce any benefit received from that trust or Will before a challenge is raised.

In the event that a reunification is necessary, there are often ways of doing discovery without first doing the reunification.  If you suspect there is a problem with a will or trust and would like to talk with a Florida Probate Litigation Lawyer or Florida Trust litigation Attorney, contact the Law Office of David M. Goldman to discuss your case.

The question before the court was when a creditor is known or an ascertainable creditor and does not receive written notice, is their claim barred under 733.702(1) of the Florida Statutes which provides for a 90 day deadline or do they get the full two years as provided in section 733.710.  There were several different interpretations of this issue in different courts around Florida so the question we sent to the District Court of Appeal to get an answer.

Here are the facts of the case and how the DCA determined that the 90 day window for filing claims was not effective when the creditor is known or ascertainable.

I. Background

Harry Jones died in February 2007 and his estate was opened in April 2007. In June 2007, a notice to creditors was published as required by section 733.2121, Florida Statutes (2006), but neither Harry’s ex-wife, Katherine Jones, nor her guardian1 were ever served with a copy of the notice. In January 2009, however, less than two years after Harry’s death, the guardian of Katherine Jones filed a statement of claim in the probate court. The statement of claim asserted that Harry’s estate owed Katherine money based on a marital settlement agreement executed in 2002. After Katherine died in 2010, Edward Golden was appointed as the curator of her estate.

In 2012, Golden filed in the probate court a “Petition for Order Declaring Statement of Claim Timely Filed and/or For Enlargement of Time to File Statement of Claim, Nunc Pro Tunc.” Essentially, Golden claimed that Katherine’s guardianship was a known or reasonably ascertainable creditor of Harry’s estate. Carol Jones, the personal representative of Harry’s estate and the Petitioner before this Court, filed a response to Golden’s petition asserting that Katherine was not a reasonably ascertainable creditor of Harry’s estate and that her guardian’s claim was time-barred under sections 733.702 and 733.710. After a hearing on the petition, the probate court entered an order striking the guardian’s 2009 claim as untimely under sections 733.702, 733.710, on the authority of the decisions of the First and Second District Courts in Morgenthau and Lubee.

On appeal, Golden argued that because the notice to creditors was not properly served on Katherine, a known or reasonably ascertainable creditor, the three-month limitations period set forth in section 733.702(1) never began to run, and the claims of Katherine’s guardianship could only be barred by the two-year statute of repose in section 733.710. The Fourth District agreed with Golden, concluding that the probate court erred “in determining that the claim was untimely without first determining whether Katherine was a known or reasonably ascertainable creditor.” Golden, 126 So. 3d at 391, 393-94. The district court reversed and remanded the case to the probate court to determine whether Katherine or her guardianship was a known or reasonably ascertainable creditor. Id. at 394. The district court further instructed that if the probate court determined that Katherine or her guardianship was indeed a known or reasonably ascertainable creditor, then the “claim was timely, as it was filed prior to the earlier of 30 days after service of notice to creditors (which never occurred) or two years after the decedent’s death.” Id. at 393-94. The Fourth District recognized that the decisions of the First District in Lubee and the Second District in Morgenthau both reached contrary conclusions and certified conflict with those cases. Id.

II. ANALYSIS

The question before the Court is one of statutory interpretation, which is subject to de novo review. BellSouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287, 289 (Fla. 2003). In the analysis that follows, we examine the relevant statutes and discuss the conflicting district court decisions. We then resolve the conflict by approving the reasoning of the Fourth District in Golden and concluding that claims of known or reasonably ascertainable creditors of an estate who were not served with a copy of the notice to creditors are timely if filed within two years of the decedent’s death.

A. Relevant Statutes

Three sections of the Florida Probate Code are relevant to our resolution of the conflict presented. Section 733.2121 outlines the duty of a personal representative to publish a notice to creditors of the pending administration of an estate and to serve a copy of the notice to creditors on known or reasonably ascertainable creditors. It provides, in relevant part:

(1) Unless creditors’ claims are otherwise barred by s. 733.710, the personal representative shall promptly publish a notice to creditors. The notice shall contain the name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, the name and address of the personal representative, the name and address of the personal representative’s attorney, and the date of first publication. The notice shall state that creditors must file claims against the estate with the court during the time periods set forth in s. 733.702, or be forever barred.
(2) Publication shall be once a week for 2 consecutive weeks, in a newspaper published in the county where the estate is administered or, if there is no newspaper published in the county, in a newspaper of general circulation in that county.
(3)(a) The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors. Impracticable and extended searches are not required. Service is not required on any creditor who has filed a claim as provided in this part, whose claim has been paid in full, or whose claim is listed in a personal representative’s timely filed proof of claim.
. . . .
(4) Claims are barred as provided in ss. 733.702 and 733.710.
§ 733.2121, Fla. Stat. (2006); see also Fla. Prob. R. 5.241(a) (“[T]he personal representative shall promptly publish a notice to creditors and serve a copy of the notice on all creditors of the decedent who are reasonably ascertainable.”).

Section 773.702 provides, in relevant part:

(1) [N]o claim or demand against the decedent’s estate . . . is binding on the estate . . . unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor . . . .
. . . .
(3) Any claim not timely filed as provided in this section is barred even though no objection to the claim is filed unless the court extends the time in which the claim may be filed. An extension may be granted only upon grounds of fraud, estoppel, or insufficient notice of the claims period.
. . . .
(6) Nothing in this section shall extend the limitations period set forth in s. 733.710.
§ 733.702, Fla. Stat. (2006) (emphasis added).

Section 733.710 provides, in relevant part:

(1) Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.
(2) This section shall not apply to a creditor who has filed a claim pursuant to s. 733.702 within 2 years after the person’s death, and whose claim has not been paid or otherwise disposed of pursuant to s. 733.705.

§ 733.710, Fla. Stat. (2006).

We have held that section 733.702 is a statute of limitations and that section 733.710 is a jurisdictional statute of nonclaim, which cannot be waived or extended. May v. Illinois Nat. Ins. Co., 771 So. 2d 1143, 1150 (Fla. 2000).

B. Morgenthau and Lubee

In Morgenthau, the personal representative of the decedent’s estate published a notice to creditors in a newspaper in March 2008, informing possible creditors of the estate that they had three months from the date of the first publication in which to file any claims outstanding against the estate. 26 So. 3d at 629. In April 2009, Morgenthau filed a statement of claim alleging that he was the holder of an outstanding note executed by the decedent and that the personal representative was aware of the amount due to Morgenthau. Id. The probate court struck the claim as untimely because it was not filed within three months of the first publication of the notice to creditors. Id. at 629-30.

On appeal, the First District found that even if Morgenthau was a known or reasonably ascertainable creditor of the estate who was therefore entitled to receive actual notice by service, because he was not served with a copy of the notice, he was required to file his claim within the three-month window following the first publication of the notice. Id. at 632 (“[T]he claim was untimely as appellant did not receive actual notice of the claim and was, thus, a creditor who fell in the three month filing window following publication.”). The district court stated that once Morgenthau’s claim fell outside the three-month window, it could only be considered if Morgenthau had requested and been granted an extension of time by the probate court. Id. Because Morgenthau filed only a statement of claim and did not seek an extension of time in which to file that claim, the district court concluded that “the probate court was bound by the relevant statutes to deny the claim.” Id.

In Lubee, the decedent died in December 2006, and the notice to creditors was first published in November 2007. 77 So. 3d at 883. More than one year after the first publication, Lubee filed a statement of claim in the probate court. Id. Lubee asserted that because he was a readily ascertainable creditor entitled to be served with a copy of the notice to creditors, he was only required to file his claim within thirty days after service of the notice under section 733.702(1) or within two years of the decedent’s death under section 733.10. According to Lubee, because he was never served with a copy of the notice to creditors, his claim was timely filed within two years of the decedent’s death. Id.

The Second District disagreed and concluded that Lubee’s claim was untimely because it was filed outside of the three-month window. The Second District concluded that whether Lubee was a reasonably ascertainable creditor or not was immaterial. The court explained:

Because a notice to creditors was published on November 16, 2007, creditors not entitled to actual notice were required to file their claims on or before February 16, 2008. See § 733.702(1). Creditors who were served with the notice to creditors were required to file their claims within thirty days following service. See id. Because he was not served with a copy of the notice to creditors, Mr. Lubee was required to file his claim in the probate proceeding within the three-month window following publication. Alternatively, Mr. Lubee could seek an extension from the probate court pursuant to section 733.702(3) within the two-year window of section 733.710. See Morgenthau v. Estate of Andzel, 26 So. 3d 628, 632 (Fla. 1st DCA 2009); cf. Miller v. Estate of Baer, 837 So. 2d 448, 449 (Fla. 4th DCA 2002) (affirming order enforcing claim against estate where creditor failed to file claim within three-month window of section 733.702(1) but did file motion for extension of time within two-year window of section 733.710). It is undisputed that he did neither. Mr. Lubee’s filing of his claim in the probate proceeding within two years of the decedent’s death did not amount to a request for an extension of time and did not otherwise comply with the requirements of section 733.702. Mr. Lubee’s claim in the probate proceeding was untimely and therefore barred. As a result, the issue of whether or not Mr. Lubee was a readily ascertainable creditor was immaterial[.]

Id. at 883-84 (emphasis added).

In Golden, the Fourth District rejected the analyses in Morgenthau and Lubee, finding the decisions inconsistent with the plain language of section 733.702(1), which allows a known or reasonably ascertainable creditor to file a claim against an estate “on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or . . . 30 days after the date of service on the creditor.” The court instead followed Fourth District precedent established in In re Estate of Puzzo, 637 So. 2d 26 (Fla. 4th DCA 1994), in which the court stated:

Due process considerations require that Appellants be furnished notice so that they can determine that the time for filing claims has commenced. However, regardless of whether or not the claimants had actual notice, section 733.702(1), Florida Statutes, does not bar the claim of a creditor required to be served with a copy of the notice of administration, unless barred by section 733.710, until the later of the 3-month period following publication or 30 days after service of notice on the creditor. The latter period had not begun to run at the time Appellants’ claims were filed.
We remand for the trial court to determine as to which of Appellant[s’] claims they were known or ascertainable creditors. Any such claims, though filed after the 3-month period, should not have been stricken as untimely if filed prior to the earlier of 30 days after service of notice of administration or 2 years after the decedent’s death.

Golden, 126 So. 3d at 392 (alteration in original) (quoting Puzzo, 637 So. 2d at 27).

The Fourth District concluded that the probate court should have determined whether Katherine or her guardianship was a known or reasonably ascertainable creditor prior to determining the timeliness of her guardian’s claim, and if she or the guardianship was a known or reasonably ascertainable creditor, then the claim “though filed after the 3-month period, should not have been stricken as untimely if filed prior to the earlier of 30 days after service of notice of administration or 2 years after the decedent’s death.” Id. (quoting Puzzo, 637 So. 2d at 27).

C. Resolving the Conflict

Section 733.702(1), Florida Statutes, provides two distinct and different limitations periods for the filing of claims against an estate: one for creditors “required to be served with a copy of the notice to creditors,” i.e., known or reasonably ascertainable creditors, and a second for unknown and not reasonably ascertainable creditors (hereinafter “unknown creditors”). The limitations period applicable to unknown creditors, set forth in section 733.702(1), begins to run upon publication of the notice to creditors and ends three months after the date of the first publication.

Creditors who are known or reasonably ascertainable need not rely on publication for notice of the pending administration of an estate. Section 733.2121(3)(a) requires a personal representative to “promptly serve a copy of the notice” on those creditors who are known or reasonably ascertainable after a diligent search. The limitations period applicable to known or reasonably ascertainable creditors does not begin to run until service is perfected. Once served with a copy of the notice, a known or reasonably ascertainable creditor must file any claim within the later of “3 months after the time of the first publication of the notice to creditors or . . . 30 days after the date of service on the creditor . . . .” § 733.702(1), Fla. Stat.

Under the plain language of section 733.702(1), where a known or reasonably ascertainable creditor is never served with a copy of the notice to creditors, the applicable limitations period never begins to run and cannot bar that creditor’s claim. “[A]s to any creditor required to be served with a copy of the notice to creditors,” the limitations period can only be triggered by “service on the creditor” of the required notice. § 733.702(1), Fla. Stat. A known or reasonably ascertainable creditor is absolved from the limitations of section 733.702(1) by virtue of the fact that the personal representative failed to serve the creditor with the required notice. The only instance in which a known or reasonably ascertainable creditor is required to file any claims before the expiration of the three-month window after publication of the notice is where the last day of the three-month window occurs more than thirty days after service of the required notice.

Accordingly, if a known or reasonably ascertainable creditor is not served with a copy of the notice, section 733.702(1) does not govern the timeliness of that creditor’s claims. Instead, the claims of such a creditor are only barred if not filed within the two-year period of repose set forth in section 733.710. Thus, the claim of a known or reasonably ascertainable creditor who was never served with a copy of the notice to creditors is timely if filed within two years of the decedent’s death. Further, because the limitations periods in section 733.702 are inapplicable under such circumstances, it is not necessary for the creditor to seek an extension of time under section 733.702(3) since that section applies only to claims that are untimely under section 733.702.

The decision of the First District in Morgenthau — on which the Second District relied in Lubee — is based on a misinterpretation of the limitations provisions in section 773.702(1).2 The First District interpreted that section in the following manner:

Section 773.702(1) mandates a claim is untimely if it is filed either (1) outside the three month window following publication to creditors or (2) filed outside the 30 day window for responding to a notice of claim if the creditor is a readily ascertainable creditor of the estate entitled to actual notice of the claim.

Morgenthau, 26 So. 3d at 630 (emphasis added). Stated differently, Morgenthau requires that to be timely, a claim must be filed both within the three-month window after publication and within the thirty-day window after service of a copy of the notice. But that’s not what the statute says. As explained above, the plain language of section 733.702 specifies that as to a known or reasonably ascertainable creditor, a claim is timely if “filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor.” § 733.702(1), Fla. Stat. (emphasis added).

The interpretation adopted in Golden is in accord with the plain terms of the statute. And it is also in accord with the requirements of due process. In Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 489-91 (1988), the United States Supreme Court held that where a creditor is known or reasonably ascertainable, that creditor’s claim may not be barred merely by publication of the notice to creditors. Noting that a claim against an estate is property subject to protection by the Fourteenth Amendment, the Supreme Court weighed the important state interests in regulating the timeliness of creditors’ claims against the rights of those creditors to have their intangible interests in property protected by the Fourteenth Amendment. Id. at 485. The Supreme Court determined that where a time bar is self-executing — such as the two-year statute of repose in section 733.710 — there is insufficient state action to implicate the Due Process Clause of the Fourteenth Amendment. Id. at 485-87. However, where a time bar is triggered by legal proceedings — such as the limitations periods in section 733.702 — there is sufficient state action to implicate the Due Process Clause. Id. at 487-88. The Court thus concluded that where there is sufficient state action and a creditor is “known or ‘reasonably ascertainable,’ then the Due Process Clause requires that [the creditor] be given ‘[n]otice by mail or other means as certain to ensure actual notice.’ ” Id. at 491 (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983)).

A personal representative is therefore constitutionally obligated to provide actual notice to known or reasonably ascertainable creditors and if the personal representative fails to provide that notice, the creditors’ claims cannot be barred except under section 733.710. The Fourth District’s decision in Golden properly recognizes the duty of the personal representative to provide notice to known and reasonably ascertainable creditors and the requirement of actual notice to satisfy due process as to those creditors

III. CONCLUSION

For the reasons explained above, we conclude that claims of known or reasonably ascertainable creditors of an estate who were not served with a copy of the notice to creditors are timely if filed within two years of the decedent’s death. Accordingly, we approve the decision of the Fourth District in Golden and disapprove the decisions of the First District in Lubee and the Second District in Morgenthau.

It is so ordered. (LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.)

In nearby Winter Haven, Florida local resident Brad Reiter is accused of a most unusual crime.  Think of the plot of Ocean’s 11 but with more vitamin C.

State agricultural investigators are claiming that Reiter unlawfully took over 4 million pounds of oranges and other citrus.  These fruits came at an estimated loss of over half a million dollars!

The agricultural commissioner held a press conference in which he explained the details of the grand theft crime.  Brad Reiter entered into at least three contracts to harvest citrus groves back in March, 2014.

The grove owners clearly did not do their research as it turned out that the suspect was not even a licensed citrus dealer!  That didn’t stop him from harvesting all of the oranges and grapefruits from the groves.

The scurvy-resistant thief made off with over 50,000 boxes full of fruit without paying for it.  The estimated amount of the stealing?  Over $530,000!

The unlucky suspect was booked into Polk County Jail on first degree larceny and fraud charges.  At the time of this writing he did not yet have a criminal defense attorney

LEGAL ANALYSIS

Grand Theft is found under Florida Statute 812.014.  Because the amount that allegedly was taken was over $100,000, this would be a first degree theft, punishable by up to 30 years in prison!  This does not even take the separate felony fraud cases into consideration.

Common sense will tell you that many times prosecutors are willing to reduce prison time or even agree to probation if the defendant pays back restitution.  In this case what was stolen were perishable items.  These are not stolen goods that can just be returned and almost certainly the defendant did not sell all the citrus.  This means a lot of the fruit he stole became spoiled and worthless.  Any fruit he managed to sell would probably not cover the over half a million dollars in loss.  In other words, unless he happens to have hundreds of thousands of dollars ready for restitution, he is almost certainly looking at a lengthy prison stay.

Finally, if he had attempted to resell any of this fruit, the state can add second degree felony charges of dealing in stolen property to him.

Have you or a loved one been arrested for grand theft or dealing in stolen property charges?  Then call the Saint Petersburg theft crimes defense lawyers of Blake & Dorsten, P.A. today!  These former prosecutors are experienced trial attorneys.

The lawyers of Blake & Dorsten, P.A. handle all criminal and auto accident cases throughout the Gulf Coast including Saint Petersburg, Clearwater, Tampa Bay, Largo, Seminole, Safety Harbor, Oldsmar, Palm Harbor, Pinellas Park, Dade City and Tarpon Springs.

To speak directly to your Pinellas County theft defense attorney, click on the contact button or call them at 727.286.6141.  Blake & Dorsten, P.A…when your case matters!

The post Florida man steals 4 million pounds of oranges appeared first on Tampa Bay Criminal Defense Lawyer Blog.

Balance through mediation

Mediators can differ a lot in style, but in general, he or she will start with one side and explain the rules and the process to the person.  The same will be done for the person on the other side.  In a typical divorce case, the parties involved will be the husband and his lawyer on one side and the wife and her lawyer on the other side.  Although with same sex marriages being more prevalent, variations of this scenario are possible.  Some mediators will do the initial process disclosure with both parties present in the same room in order to save time.  Afterwards, the parties are split, and each side will explain its position and may make an offer to the other party, or they may send an invitation to receive an offer from the other side.

Mediation is not strictly required under Florida law, but the Family Law Rules of Procedure, in rule 12.740, give judges discretion to send parties to mediation prior to cases being set for trial.  With as much to do as the average family law judge, mediation is an attractive idea.   It saves the judge time, and it gives the parties a chance to participate in the result.  Also, mediation allows the parties to get creative and have more flexibility regarding an outcome than the judge has.   Most judges I’ve practiced in front of as a Jacksonville divorce lawyer are patient, insightful, and all other things that make good judges.  They all have also been human, however.  In light of the possibility for human error or for something to appear different than what it really is, mediation is a good way to protect yourself from the possibility of not having things go your way in court.  In the spirit of reaching a resolution, there has to be a willingness to compromise in some regards.  Keep in mind that no one can be forced in mediation to do what he or she is unwilling to do.  If no agreement is reached, the parties are free to set the case for trial.

“Does your child eat Brussel sprouts?  If so, did you know that the residue on vegetables not typically eaten by children can have higher amounts of pesticides on it than say broccoli.”  While that makes sense on a national risk-benefit analysis, it’s still something parents should know, but not something your doctor is likely to talk to you about.

How about this one, which could be, should be, asked by every doctor and not just pediatricians: “When was the last time you had your water checked?  Did you know your pipes can build up some nasty scale including metals?  Have you ever drained your water heater?”  The stuff that builds up on the bottom may look like a wheat-grass smoothie, but trust me.  It’s not good for you.

Why don’t our doctors ask us about these things more often?  Probably because even though our health is directly related to how clean our food and our environment are, we still like to pretend that the simple aesthetics of a clean world are too “sensitive” and “politically charged” an issue to take seriously.

For years, we have associated cleanliness with healthiness.

Isn’t it time we incorporated that ethic into our daily lives?   Do we really need our religious leaders like the Pope to remind us the issue behind climate change really isn’t climate change?  It’s cleanliness. And cleanliness is, well…

We all remember the commercials with Native Americans crying when someone litters.  No matter how un-politically correct the stereotype was, the underlying philosophy, the clean up after yourself ethic, was universally understood.  And you did not have to think the world was a gift from God or from Allah, or from some where else to get the message.

Another familiar adage:  “You are what you eat.”  Our language is full of totems that signify how much we equate our health with what we eat.  “An apple a day keeps the doctor away.”    And yet, when the First Lady announced that schools had a duty to provide a healthy lunch conservatives acted like she was taking away their kid’s right to drink more chocolate milk.

How about this one: “Mad as a hatter.”  Some people may not know that the phrase originated from that felt-workers, who often worked with mercury, went crazy from their exposure to it, but most of us do.   We teach children that George Washington died of lead poisoning accumulated by inhaling the white powder applied to his wig. We have a cultural awareness that what we are exposed to affects our health.

Full service gas stations are nearly non-existent because of the high costs of exposing attendants to benzene all day.  If you did not know that, next time you pump gas, look at the warning signs;  probably no one should fill up cars all day, every day.

We took lead out of gasoline so we would stop breathing it.   Lead out of pencils so kids would stop chewing it.  Mercury out of thermometers so kids would stop playing with it.   Decades later, we monitored our intake of tuna fish because the ocean’s fish supply is accumulating mercury emitted by burning coal.  And now, we are still wondering if we should cap emissions.

As individuals, we make choices based on the idea that no one would willingly put poisons in their bodies.  Bleach is put in a separate bag from milk by your grocer.  We keep chemicals out of reach of children.  But we wonder if we can afford to make those choices as a society, you know because of the need for jobs.  Should we really require companies to keep emissions to the lowest reasonably achievable levels.

Speaking of jobs, have you seen how much of your pay check goes to health care?  Do you know how much of that goes to treating respiratory diseases across the country?  How about the cost of cancer?

We all say things like “there’s something in the water” but that a water resource could ever really be chock full of bad stuff is something we would rarely believe without a string of cancers followed by a full length feature film.  As a society we doubt the science that says pollution causes anything.  But as a culture, we don’t.  We don’t “eat fruit from the poison tree.”  We don’t “drink water from the poisoned well.”

At the individual level, it’s apparent from the moment we walk into our pediatrician or general practitioner’s office that while what we put in our bodies is key to health, we aren’t always mindful of that.  Questions abound about your family tree, but nothing about your diet and never anything about your environment.  But it matters.  Do you live on well water; do you live on a diesel bus route next to a gas station; do you live by the ocean in a high rise condo; do you eat fish-fries from the gas station next door or fish from the market downstairs?

My husband worked in restaurants—he would mop down the floor at night with degreasers.  Our veterinarian pointed out that he should take his shoes off before coming in the house, not our pediatrician.  True, kids don’t lick their dad’s shoes (most anyway), but they crawl around on the floor and these are the very things our physicians should be talking about with us.

At the global level, we have the Pope of the Catholic Church recently reminding us that climate change is a moral issue.  Whether you “believe” in the science that states man-made forces are changing the global climate is irrelevant; man-made pollution is rampant.  Failing to regulate corporations is allowing them to litter and improperly dispel poisons.  No matter why a company should filter their emissions or use fuels that require less filtering, it should be doneand it seems clear they won’t police themselves.

If you’re not a believer in climate change, how about asthma?  If you don’t think asthma is caused by pollution, do you really want to live in a world where we don’t regulate ourselves for that real possibility?

Can we afford to wait for a wasteland?

The post How Environment Affects Health – Things your doctor probably won’t ask you about appeared first on Searcy Law.

Creditor Harassment During Bankruptcy

When you file a Chapter 7 or Chapter 13 bankruptcy, something called an automatic stay is put in place as soon as you file. This Automatic Stay prevents your creditors from continuing to try and collect a debt from you, but unfortunately your creditors will most likely not stop harassing you and trying to collect from you the moment you file for bankruptcy. This is because it takes the Bankruptcy Court a few days to prepare your Notice of Bankruptcy and to then mail it to all of your creditors. If, however, your creditors continue to harass you after a reasonable time has passed for them to receive notice of your bankruptcy from the Bankruptcy Court, then they are most likely in violation of the Automatic Stay, provided the debt falls into one of the very limited exceptions: criminal matters, child support, alimony, taxes, certain evictions, ect.

So what should you do if a creditor is still harassing you? The first thing you should do is to let the creditor who is harassing you know that you have filed bankruptcy. You can do this verbally over the phone, or by writing. For example, you can write that you filed bankruptcy on their bill and mail it back to them. Letting the creditor know you have filed bankruptcy stops the contact in the majority of instances. These initial contacts from your creditors shortly after filing bankruptcy are generally just mistakes, which is often due to the creditor’s system not having been updated with the Notice of Bankruptcy they received. It is not yet time to be alarmed, but it is important to keep a log of their contacts with you.

If the creditor still continues to harass you, then it is time to provide your detailed log of the creditor’s contacts with you to your bankruptcy attorney. Your attorney will most likely try to stop the harassment by initially contacting the creditor and providing them with another copy of your Notice of Bankruptcy. If that does not resolve the harassment, then your attorney will let the Bankruptcy Court know and start legal proceedings against your creditor. This could lead to money damages to you.

Creditor Harassment After Bankruptcy

Once you receive your Chapter 7 or Chapter 13 Bankruptcy Discharge, creditors of your debts that were discharged are forever barred from trying to collect the debt from you, but sometimes it seems as though a creditor didn’t receive the discharge order or is simply choosing to ignore it. What you should do about a creditor continuing to harass you after having received your bankruptcy discharge is pretty much exactly the same steps you would take if the creditor were to harass you during your bankruptcy. You should initially inform the creditor of the discharge verbally or in writing. If they still continue to contact you, then you should notify your attorney who will then take the appropriate actions.

If you have filed for bankruptcy or have already received your discharge, but are still receiving harassing telephone calls and/or mailings from a creditor, contact the Law Office of David M. Goldman, PLLC today at (904) 685-1200. One of our bankruptcy attorney’s can help you properly notify the harassing creditor of your bankruptcy to stop the creditor’s harassing contacts.

Suspended License? Do not get caught driving. Call (904) 564-2525 to speak to an attorney about reinstating your drivers license.

Has your drivers license been suspended as a Florida habitual traffic offender in St. Augustine? Did you receive a letter from the Department of Highway Safety and Motor Vehicles informing you that your license would be suspended for five years due to tickets that you have received in Ponte Vedra or Julington Creek? If so, you may be wondering how you are going to function without a drivers license for 5 years. You are not alone. Many other people are in your position or have been in this position. You may be able to stop this Florida drivers license suspension or have your license reinstated. Call 20 Miles Law at (904) 564-2525 to speak to a St. Johns County lawyer about your options. You may also contact an attorney by sending an email to Find a Lawyer.

Why is My Florida Drivers License Suspended?

If you have been labeled a Florida habitual traffic offender, it is due to your driving record. You have been convicted of certain traffic tickets that resulted in the suspension. The offenses that will be used against you can be found in Section 322.264 of the Florida Statutes. If you receive convictions for any three of the driving offenses listed below within a five-year period, your drivers license will be suspended for 5 years. The traffic charges are:

1. Voluntary or involuntary manslaughter resulting from the operation of a motor vehicle;
2. Driving Under the Influence: Any violation of s. 316.193, former s. 316.1931, or former s. 860.01;
3. Any felony in the commission of which a motor vehicle is used;
4. Driving with a suspended or revoked license;
5. Leaving the Scene of an Accident: Failing to stop and render aid as required under the laws of this state in the event of a motor vehicle crash resulting in the death or personal injury of another; or
6. Driving a commercial motor vehicle when the privilege is disqualified.

Florida driving on a suspended or revoked license tickets are the most common traffic violations that causes habitual traffic offender drivers license suspensions in Jacksonville and the surrounding cities, but you may become a habitual traffic offender due to other moving violations. Section 322.264 of the Florida Statutes also states that your drivers license will be suspended as a habitual traffic offender if you receive 15 moving violations within 5 years.

How Can a St. Johns County Drivers License Lawyer Help Me?

If you are already a habitual traffic offender or facing a five-year drivers license suspension, a Florida drivers license lawyer may be able to help you. Your lawyer may be able to remove convictions from your record. If your attorney is able to remove certain convictions from your record, you will no longer fit the criteria of a habitual traffic offender. Depending on your driving record, you may be able to reinstate your license.  This may take some time, so the sooner you speak to an attorney, the better.

Do I Need to Pay My Florida Traffic Tickets?

If you have outstanding tickets, your Florida drivers license will be suspended indefinitely. The FDHSMV will suspend your license until you take care of these tickets. If you have moving violations, these will put points on your driving record, so be sure to talk to your attorney first. Your attorney may be able to help you avoid or remove these points from your Florida driving record. Regardless, you need to take care of these tickets if you want a valid drivers license.  Be sure to let your lawyer know about any outstanding traffic tickets that you have.  It is also a good idea to obtain a copy of your driving record.  For help with your drivers license, feel free to call (904) 564-2525.

Discovering Title Defects

Usually, a seller learns of a title problem after a buyer has been found, a contract is signed, and the due diligence period is underway. As part of the “closing process,” a buyer will have a title insurance company or title agent conduct a search of the property records to make sure the title is clear. A Title search is required before any title insurance commitment or policy can be issued. (Almost all lenders will require a mortgagee title insurance commitment and policy as a condition to granting a loan and accepting a mortgage; buyers will also want a title policy of their own, which is known as an owner’s title insurance policy.)

3 Common Title Defects

While there are all sorts of ways that title can be defective, there are some defects that require the help of a Florida real estate lawyer to clear up before a closing can take place. These include:

1. Intentional Bad Acts

There are title issues which can be very difficult to solve because they are based upon intentional bad acts, like fraud or forgery. Forged deeds are void under Florida law. Even if a buyer innocently takes ownership of a home in Florida only to discover later that the deed has been forged, they’re not safe. A “bone fide purchaser” of real estate holding a forged deed has no legal title to the property under Florida law.

2. Third Party Rights

Often, buyers are surprised to learn that they aren’t the only party with an interest in the property. There may be creditors who have a claim to the property too. Liens often appear in the title search for debts that have not been paid by the seller (e.g., unpaid bill to the contractor who put in the swimming pool or added on the extra bedroom, liens by municipalities and estate creditors).

Additionally, there can be unsatisfied mortgages or easements that impact the property which have been recorded in the public records. These encumbrances create title issues, as do claims for violations of subdivision zoning laws, and restrictive covenants.

While filing a lien in the real property records doesn’t mean that the creditor owns an interest in the property, that lien can be enough to “cloud” the title. A lien attaches to property in Florida when (1) it meets the legal requirements for a lien; (2) the debt is within the statute of limitations for collecting on the debt; and (3) it’s a legal debt (for instance, debts based upon illegal activities like gambling, selling drugs, etc., cannot be the basis of a valid lien).

Government entities can also file liens in real estate records that create title defects. Here, local, state, or federal government liens are filed to collect unpaid taxes like ad valorem property taxes and income taxes. Civil forfeiture actions can also be filed by government agencies against pieces of property; here the government is seeking to take ownership of the asset. Property under forfeiture to the U.S. Government will usually have a document filed in the public records that announces that the property is subject to seizure.

3. Deed Problems

Sometimes, the deed looks okay on its face but there are problems when it’s looked at more closely. If someone signs a deed while of “unsound mind,” then they don’t have the ability to sign a legal document, including a deed. If a deed is signed by someone with a power of attorney, a title issue can arise if the power of attorney is invalid or defective (lack of witnesses, improper notarization, etc.).

If a deed involves homestead property which is owned by a husband and wife, then there can be a title defect if both spouses’ signatures aren’t on the deed. In the same vein, if the deed is transferring property that is inherited, then a title issue can arise if there is a failure to have all of the heirs sign the deed (or the absence of a court order from a probate judge). Undisclosed or missing heirs on a deed often causes a title defect.

Other deed problems can include mistakes that were made during the preparation and recording of the legal document in the real estate records (for example, an error or mistake in the legal description).

Florida Real Estate Lawyer Can Help With Title Problems

Usually, defective titles can be resolved without a lot of emotional stress even though they sometimes threaten to kill a residential real estate transaction. No one wants to learn that there is a title defect with their property while they are in the process of buying or selling their home, but having an experienced Florida real estate lawyer by their side, especially one who knows how to resolve most title problems quickly and efficiently, can be the best decision a seller, or buyer, will make as part of a real estate transaction.

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

According to the American Red Cross, hot conditions cause more deaths in the United States than floods, hurricanes, lightening or any other weather event. Heat stroke can be life-threatening if ignored. It usually is preceded by symptoms including muscle cramps and physical exhaustion.

Muscle cramps related to the heat affect the legs and abdominal area and should be treated immediately by massaging, stretching, drinking lots of water or fluids with electrolytes and seeking shade or shelter. Physical exhaustion related to the heat can affect almost anyone, from athletes to construction workers to professionals in business suits walking to lunch. Signs include clammy, flushed skin, earaches and headaches and severe dizziness. The most important thing to do in such a situation is move the person to a place with circulating air and apply cool compresses to the face and around the neck.

“Heat stroke develops when the body systems are overwhelmed by heat and begin to stop functioning,” states an article titled “Don’t Be a Fool, Stay Cool!” on the American Red Cross Web site.

The agency also offers a cell-phone app that puts heat-stroke and other first-aid advice into the hands of consumers, empowering them to help other while staying safe. However, if someone suffering from heat stroke loses consciousness, emergency services should be sought or 911 should be dialed.

Here are tips to battle the heat until the real Fall weather kicks in.

• Avoid exercising during high noon and early afternoon when the mercury is maxed out.
• When outside, seek shade often and take frequent breaks.
• Wear light clothing, both in terms of color and fabric. Darker colors absorb more of the sun’s rays, and heavier fabrics don’t allow the body to breathe.
• Younger children, older adults and pets are at higher risk for heat stroke than others and should be checked on regularly. Those with respiratory illnesses also are at higher risk.
• Always have something to drink on hand that does not contain alcohol, caffeine or lots of sugar. If possible, pack fruits and vegetables, as they are naturally hydrating foods.
• Consider a cool bath or shower instead of a steaming-hot one.

Wear sunscreen and a hat. “Protect yourself from the sun by wearing a wide-brimmed hat (also keeps you cooler) and sunglasses and by putting on sunscreen of SPF 15 or higher (the most effective products say “broad spectrum” or “UVA/UVB protection” on their labels),” the Centers for Disease Control and Prevention recommends.

The post Autumn Has Arrived — Heat stroke is still a very real threat though appeared first on Searcy Law.

The attorney wanted to know if he could foreclose on the son’s interest when the mother used the property as her homestead. He suspected that a court would not force the sale so as to deprive the mother of her home. The also felt reluctant to force the innocent mother out of the house because of her son’s debt.

The creditor has the legal right to foreclose on the debtor son’s interest. The court should order a foreclosure sale and direct the clerk to give 50% of the proceeds to the son’s creditor. Neither the court nor the creditor attorney should accept responsibility for the mother’s misfortune. The son is the person who jeopardized his mother’s home by first, agreeing to share legal title of his mother’s house, and second, by incurring the liability which led to the judgment.

I told the creditor attorney that if I were representing the debtor and his mother I would have suggested the son quit claim deed his interest to his mother before a judgment was entered. This quit claim deed would constitute a fraudulent transfer to the mother, but the judgment would not have become a lien on the house because the debtor’s name would not have been on the title when judgment was entered. The creditor then could have sued the mother for the value of the house interest conveyed by the son. Even if the court entered a money judgment against the mother for the son’s half of house value the judgment could not have forced the sale of the house. The .

Now it’s too late for the son to deed his interest to his mother because the transfer would be subject to the creditor’s recorded judgment.

The post Creditor Seeks To Force Sale of Debtor’s House Occupied By His Mother appeared first on Florida Asset Protection Law Blog.

§440.205 reads as follows:

Coercion of employees.—No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

Case law has broken this cause of action down into the following elements:

1. The employee engaged in a statutorily protected activity;
2. An adverse employment action occurred; and
3. The adverse action was causally related to the employee’s protected activity.

Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004); and Humphrey v. Sears, Roebuck, and Co., 192 F. Supp. 2d 1371, 1374 (S.D. Fla. 2002).

In order to satisfy the “causal connection” prong of a prima facie retaliation case, a plaintiff must, at a minimum, generally establish that the defendant was actually aware of the protected expression at the time the defendant took the adverse employment action. See Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1196 (11th Cir.1997) (citing Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993)). Moreover, while awareness of protected expression may be premised upon circumstantial evidence, the plaintiff must show a defendant’s awareness with more evidence than mere curious timing coupled with speculative possibilities. See id. at 1197.

Once a plaintiff establishes a prima facie case by proving only that the protected activity and the negative employment action are not completely unrelated, see Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004), the burden then shifts to the defendant to proffer a legitimate reason for the adverse employment action. Russell v. KSL Hotel Corp., 887 So. 2d 372 (Fla. 3rd DCA 2004). If the defendant proffers evidence of a legitimate reason for the adverse action, a plaintiff withstands summary adjudication either by producing sufficient evidence to permit a reasonable finder of fact to conclude the employer’s proffered reasons were not what actually motivated its conduct, or that the proffered reasons are not worthy of belief. Corbitt v. Home Depot U.S.A., No. 08-12199, 2009 WL 4432654, at * 20 (11th Cir. Dec. 4, 2009). A trial court should “evaluate whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Id. (internal citations omitted).

While temporal proximity between the protected activity and an adverse action may be sufficient circumstantial evidence of a causal connection for purposes of a prima facie case, see Ortega v. Engineering Systems Technology, Inc., 30 So.3d 525 (Fla. 3rd DCA 2010), the real battle will be fought over the legitimacy of the employer’s adverse action. While there are a countless number of factors to consider in determining the real basis for a termination, it is always important to analyze the employee’s personnel file and the employer’s policies and procedures should be considered closely. Interestingly, a wrongful termination cannot be undone by demonstrating that the employee could have been, but wasn’t, terminated for violating a particular procedure. Hodges v. Citrus World, Inc., 850 So.2d 648 (Fla. 2nd DCA 2003).

Employees often have a good sense of why they were terminated. However, they must be careful to guard against allowing anger and disappointment to lead them into a false belief. Since our law firm also handles workers’ compensation cases, we find it helpful to conduct discovery in the workers’ compensation case with regard to issues related to a potential 440.205 claim before bringing suit.

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Contact us toll free at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

The post Jeffrey P. Gale // Florida Statute 440.205 Workers’ Compensation Retaliation/Wrongful Termination COA (Prong #3) appeared first on Florida Injury Attorney Blawg.

The injuries she sustained were clearly compensable under workers’ compensation laws. After all, there was no dispute she had been working (as a security guard) at the time of the incident. She made a claim for – and received – workers’ compensation benefits from her employer, a security firm.

However, the question that would later arise in Slora v. Sun ‘N Fly-In, Inc. was whether the organizer of the airshow was also considered an employer. Of course, it was not her direct employer. But when the injured security guard filed a third-party liability lawsuit against the air show organizer, the company asserted it was a contractual employer.

The reason the company fought to assert employer status is because employers benefit from the exclusive remedy provision of workers’ compensation. They must pay workers’ compensation benefits to employees injured while working – regardless of who was negligent – but they can’t also be sued. Workers’ compensation benefits are thus sometimes the exclusive remedy for those injured on the job. In some instances, that exclusive remedy provision can be extended to others aside from the employer, such as co-workers and, in some cases, contractors.

Third parties who may have been negligent in causing injury to the worker are not protected by exclusive remedy, and workers can pursue additional damages from them.

So the question of whether the air show organizer was an employer was critical to this personal injury lawsuit. Plaintiff alleged the inclement weather was a foreseeable hazard, and organizers should have provided a safer shelter for those who were on site.

In support of its position, the company outlined the agreement it reached with the Federal Aviation Administration (FAA). In order to operate the airshow, organizer had to get permits from the FAA, and during this time, it sought waivers for certain regulations. For example, it sought a waiver for allowing planes to fly lower than they normally would otherwise and also allowing the planes to fly over congested areas, where aircraft would otherwise be banned. The waiver requests were granted, on the condition the organizers make sure they had enough security for the event.

The organizer in turn hired the security company, for whom plaintiff was an employee.

After the storm and after plaintiff filed her complaint against organizer, it asserted immunity under F.S. 440.10(1)(b), which extends immunity to contractors that sublet any part or parts of contract work to subcontractors. Defense argued it was entitled to immunity because the certificates of waiver issued by the FAA were akin to a contract that imposed an obligation for security, which it then subcontracted to plaintiff’s employer.

Trial court agreed and granted summary judgement to defense, but Florida’s 2nd District Court of Appeal reversed and remanded. That waiver, the appeals court ruled, was not a contract, but rather licensing and permitting.

In order to be entitled to immunity, the organizer would have needed to show it incurred a contractual obligation to a third party, part of which was delegated to a subcontractor or sublet. However, the certificates of waiver were essentially issued by a government agency to allow them to engage in activity that would otherwise be restricted or forbidden. In contrast, contracts are bargained-for agreements.

These are two distinct relationships. Although this point remains an issue of disputed fact between the parties, the evidence was not so straightforward as to decide the case in defense favor as a matter of law.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

Slora v. Sun ‘N Fly-In, Inc., Aug. 26, 2015, Florida’s Second District Court of Appeal

More Blog Entries:

Uber Sued for Misrepresenting Driver Safety to Public, Aug. 31, 2015, Fort Myers Work Injury Attorney Blog

The post Slora v. Sun ‘N Fun Fly-In, Inc. – Third-Party Liability Lawsuit May Proceed appeared first on Florida Injury Lawyer Blog.

The system, however, did not afford absolute immunity. There was a time when employees who were able to demonstrate that an employer engaged in conduct which is substantially certain to result in injury or death, could pursue a civil remedy. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000).

While difficult, overcoming workers’ compensation immunity by establishing  substantial certainty was within reach.

In 2003, Governor Jeb Bush and the Florida Legislature put the chance of overcoming workers’ compensation immunity out of reach. New measures, in the form of Florida Statute 440.11, were instituted to make overcoming employer immunity virtually impossible.

§440.11(1) lays out the employer immunity, subsections (a) and (b) set forth the exceptions. This blog is about subsection (b), which reads:

(b) When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:

1. The employer deliberately intended to injure the employee; or

2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.*

• Proof by “clear and convincing evidence.” This standard of proof is more exacting than the typical requirement, expressed as “preponderance of the evidence” or “greater weight of the evidence.”
• “the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger,” was
• “virtually certain to result in injury or death to the employee,” and
• “the employee was not aware of the risk because the danger was not apparent,” and
• “the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.”

Numerous cases have since considered the “virtually certain” statutory standard. All agree that it is an extremely different and a manifestly more difficult standard to meet than its predecessor. While injured workers had a fighting chance with “substantial certainty,” there is little hope, as exemplified by the cases below, under the Bush-instituted “virtually certain” standard.

• R.L. Haines Constr., LLC. v. Santamaria, (Fla. 5th DCA 2014)
• List Industries, Inc. v. Dalien, 107 So.3d 470 (Fla. 4th DCA 2013)
• Gorham v. Zachry Industrial, Inc., 105 So. 3d 629 (Fla. 4th DCA 2013)
• Boston v. Publix Super Markets, Inc., 112 So. 3d 654 (Fla. 4th DCA 2013)
• Vallejos v. Lan Cargo, S.A., 116 So. 3d 545 (Fla. 3d DCA 2013)

The current standard grants employers near absolute immunity. While employers should not be overburdened with unreasonable expectations, the greatest regard should be given to work safety. If this is the goal, taking away the risk of severe consequences for slack safety measures, as the “virtually certain” standard surely does, is a step in the wrong direction.

*440.11(1)(b) also provides: “The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death[.]” The standard is lower than “virtually certain.”

Since employers are typically liable for the conduct of their employees, can employers be made to pay under this lower standard? If so, concerns with collecting a judgment against an individual alone would be alleviated.

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Contact us toll free at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

The post Jeffrey P. Gale, P.A. // Virtually Impossible in Florida to Overcome Workers’ Compensation Immunity (440.11) appeared first on Florida Injury Attorney Blawg.

X Products warned their customers that the ATF evaluated the Can Cannon and determined that it would be considered an SBR if placed on a rifle receiver, and an AOW if used on a pistol AR. See the ATF letter on the Can Cannon. The ATF has defined the Can Cannon as a shotgun. However, the device by itself is not a firearm and is perfectly legal to own. Attaching it to a firearm is illegal unless the user has the proper federal licenses.

If you have an SBS, you can add the Can Cannon as an additional configuration to your SBS by using this Additional Configuration Form we have prepared for use with our Gun Trusts, SBSs and multiple configurations.  Here is a link to using multiple configurations with a Form 1 for those not familiar with it

X Products claim to be working on a modification which may eliminate this need, but for now we would recommend that any of our clients using a Can Cannot by X products either use a Form 1 to build the appropriate NFA item or add it as an additional configuration to an existing SBR to be used with an SBR that has already been registered.  If you do not have a Gun Trust, contact us for more information on how forming a well drafted Gun Trust can permit you to legally use your Can Cannon and protect others from potential violations of the NFA.

Sifting through the National Electronic Injury Surveillance System data, researchers wanted to find out more about trends in adult cycling injuries and related hospital admissions.

What they discovered was that in 2012-2013, there were 15,427 hospital admissions for bicycle injuries. That was a significant uptick than what was reported in 1998-1999, when there were 8,791 hospital admissions. Another revelation was that the age of cyclists has shifted dramatically. While the majority of victims used to be primarily children, we now see that figure has dropped dramatically. This is good. But the number of over-45 cyclists who suffer serious injury and death sharply rose.

Part of the reason is children are bicycling much less, while adults are beginning to bike much more, often as an alternative to a motor vehicle or for health benefits. This is good for their hearts and their waistlines, but it’s not necessarily great for their safety – especially in Florida.

The Sunshine State has one of the worst track records when it comes to protecting cyclists.

The National Highway Traffic Safety Administration (NHTSA), in its report released earlier this year on 2013 traffic safety facts, revealed  Florida has the highest rate of bicycle accident deaths in the country. We had 133 biking fatalities that year, which comprised 5.5 percent of our total traffic deaths (which was a higher percentage than anywhere else in the U.S. Additionally, when we factored in population, the rate was 6.8 bicycle fatalities per 1 million people). That was far higher than anywhere else in the nation. The only other state that even came close was Arizona, which had a bicyclist death rate of 4.68 per 1 million population. But when looking at the percentage of total traffic fatalities, it was 3.7 percent in Arizona to Florida’s 5.5 percent.

Part of the issue certainly is that more people than ever are riding. Because the population of new riders is skewed older and we know older folks tend to suffer more serious injuries when there is an accident, it makes sense the hospitalization rate is up.

But we can’t discount the role reckless drivers play. In Lee County especially, there is a sense that bicyclists somehow deserve to get hurt. There was even a case not long ago in which an emergency room physician is alleged to have stopped short intentionally in front of a bicyclist, causing him injury, and then driving a short distance down the road before finally stopping. The entire event was captured on the cameras of the victim’s fellow riders.

Of course, bicyclists can and should ride defensively. That includes wearing a helmet and making sure to don reflective gear for nighttime rides.

But we must go further. Our streets were designed for high-volume, high-speed traffic of motor vehicles. Some people are beginning to rethink this model, and have begun implementing a Complete Streets model that takes into account a wider number of road users – including bicyclists and pedestrians. Lee County has undertaken efforts to do this in certain areas, but more could be done.

Finally, motor vehicle drivers need to be on the lookout for bicyclists. We know they are increasing in number, and we shouldn’t expect a decrease anytime soon. That means we must all learn how to safely share the road.

Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.

Additional Resources:

As more adults pedal, their biking injuries and deaths spike, too, Sept. 2, 2015, By Michaeleen Doucleff, NPR

More Blog Entries:

Teenage Truckers Would be Allowed Under New Bill, Aug. 26, 2015, Fort Myers Injury Lawyer Blog

The post Bicycle Injuries Doubled From 1998 to 2013, Analysis Shows appeared first on Florida Injury Lawyer Blog.

The good news is that bankruptcy will discharge the majority of civil judgments entered against you, but there are a few exceptions. It depends entirely on what the underlying debt was for and whether a lien has been placed on your real property. There are certain types of judgments that cannot be discharged with a bankruptcy.

The most common type of civil judgment is a judgment for unpaid debts, such as a credit card, medical bill, rent, repossession or personal loans, just to name a few. If your judgment is for a debt such as one of these, then it is most likely dischargeable through bankruptcy.

If your judgment is for unpaid child support, alimony, criminal fines, taxes, or student loans, then the judgment will not be dischargeable through bankruptcy. Also, if the debt was acquired through the use of fraud, misrepresentation, or false pretenses then the debt will not be able to be discharged. This is likewise for a debt that was the result of a death or injury from drunk driving or through willful and malicious injury caused by the debtor.

Once a creditor has acquired a civil judgment and you are not paying them, then the creditor can enforce the judgment against you in a couple of ways. They can garnish your wages, levy your bank account, or place a lien on your real property. Filing bankruptcy alone will stop your wages from being garnished or your bank account from being levied, but the creditor might have to file a motion to dissolve the garnishment in state court if your employer requires it in order to stop a wage garnishment. However, bankruptcy alone will not automatically remove a lien that has been placed on your real property. The bankruptcy will only dissolve your personal liability to pay the debt. In order to get the lien removed from your real property, a separate petition in state court is required. You also must wait 1 year after receiving your bankruptcy discharge in order to file this type of action in order to remove the lien.

If a judgment has been entered against you and you are unable to pay it, bankruptcy might be a good option for you, especially if your wages are currently being garnished or your bank account is being levied. Speak with an attorney today by calling the Law Office of David M. Goldman, PLLC (904) 685-1200.

Lonna Barton Bond Revoke in Duval County FL

Approximately three months ago, a 21-month-old child went missing in Jacksonville FL. Was he kidnapped, murder, accidentally killed, or abandoned? We do not know. What we do know if that somebody knows what happed to this child and is not speaking up. The missing toddler is Lonzie Barton. This is, by far, the most high-profile case pending in Jacksonville at this time. The local news is constantly running a new story on the case. Understandably so, considering that there always seems to be something happening in William Rueben Ebron and Lonna Lauramore Barton’s cases.

If you have not been following this case, Lonna Barton is Lonzie Barton’s mother. Ebron is, or was, her boyfriend that was babysitting Lonzie Barton at the time of his disappearance. For a timeline of events, read Lonzie Barton Timeline Leading to Arrest in Jacksonville FL. You may also read More Jacksonville Criminal Charges for Ebron for more articles about the Lonzie Barton case.

The last two weeks have been busy for Lonna Barton.  Just two days ago, Lonna Barton has a bond revocation hearing in Jacksonville. A few weeks ago, she bonded out of the Duval County Jail after being arrested for child neglect and giving false information to police officers in Jacksonville. Due to the new arrest, she is now being “held without bond after her arrest last week on drug charges in Baker County….. Lonna Barton waived her appearance at Wednesday’s hearing and her lawyers offered no opposition to the motion to revoke her bond in light of her Baker County arrest. Judge Marianne Lloyd Aho ordered that Lonna Barton be kept in the Duval County jail until the completion of the case against her.”  (news4jax.com)

The Florida criminal law that permits a court to revoke a defendants bond is Section 903.0471 of the Florida Statutes. This law states, “Notwithstanding s. 907.041, a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.” Because Lonna Barton was arrested for new Florida drug charges in Baker County, the court conducted a bond revocation hearing pursuant to this statute. The bond may be revoked even though the new arrest has nothing to do with the pending criminal charges in Duval County. As a Jacksonville criminal lawyer, I expect my client to be on their best behavior while they are out on bond. I do not want to see my client back in jail. If my client’s bond is revoked, I now have a client sitting in jail while the case is pending. It is a lot easier to communicate with my client if he or she is out of custody. He or she can also help me build and defense, go through evidence, and collect information when he or she is not in jail.

After Lonna Barton posted bail, she was arrested along with Chris Barton, Lonzie Barton’s father. I am assuming that Chris Barton did not have a pending case, so he likely has a bond in Baker County. He may be released from custody, but Lonna Barton will not be released from custody due to the bond revocation in Duval County. She is now going to have to work on her defense from the Duval County Pretrial Detention Facility. Now, she has two cases to defend. She probably has two different attorneys as well. In Duval County, she has a Jacksonville criminal lawyer from the Office of Regional Conflict Counsel. Based on the Duval County court determining that she is indigent, I am assuming that she cannot afford an attorney in Baker County. If this is the case, she will be assigned a public defender unless there is a conflict of interest. If the public defender has a conflict of interest, the court will appoint another attorney to represent her for the new drug charges.

Based upon the scenario set forth above, it is obvious why you want to walk a strait line after you have bailed out of jail. You do not want to risk going back. This is especially true when you have bonded out of jail in such a high-profile case. After learning of Lonna Barton’s arrest for the Baker County drug charges, I wrote an article titled, Barton’s Arrest May Revoke Duval County Bond in Jacksonville FL. I stated that I anticipated that her bond would be revoked in Jacksonville. I wondered if she was being watched or followed because the Jacksonville’s Sheriff’s Office is conducting a murder investigation in the Lonzie Barton case. Today, I read an article on Channel 4 News of Jax’s website that helped explain:

“One of the investigators who spearheaded the surveillance of Chris and Lonna Barton, leading to their arrests on drug charges in mid-September, spoke to The Baker County Press about the case. Chris Barton, 41, and Lonna Lauramore Barton, 25, were arrested September 16 after an undercover drug deal at a Baker County motel.  Another man, Shawn Hall, 32, of Glen St. Mary, was also arrested. ‘A network of confidential sources provided detailed information several days before their arrest and finally allowed for controlled buys to be made,’ Investigator Matt Yarborough told The Baker County Press. He also said ‘no special attention’ was attached to the case…. Yarborough said the Bartons were both known to be involved in the local drug culture prior to Lonzie’s disappearance but more ‘tips and complaints’ came in after the child was reported missing. ‘I will say that the scrutiny and watchful eyes of the public made it difficult for the couple to hide their activities and made the investigation much easier for us,’ Yarborough told The Baker County Press. The Press said a confidential informant reported witnessing Lonna Barton injecting synthetic meth with her husband’s help while they were all in the motel room. The informant said Hall was there as well. The Baker County Press reported when police entered the motel room, only Lonna Barton was there and numerous syringes and other drug-related items were seized as evidence. Earlier that afternoon, officers witnessed Chris Barton picking up the drug from a person in a red truck that pulled into the motel parking lot, according to The Baker County Press.”

According to this Jacksonville news article, it appears that Lonzie Barton’s disappearance did not lead to the investigation of his parents. However, it did lead to people giving police information that they needed to make an arrest.