Serious negative consequences can arise in an accident case due to material representations, for example, a client & victim of an auto accident did not name all of their household members when taking out their insurance policy. Now, when that occurs, it may have saved them money initially at the time of purchase, but it can hurt them at the time when they need to utilize the benefits.  In the event that they are in an accident and the insurance company does their investigation, and the carrier finds out that there are various household members at the insured’s residence and/or live with them and were NOT named in the application for insurance, PIP benefits may be denied.

 

Misrepresentations or concealments of material facts made by an insured prior to a loss will typically provide the insurance carrier with a right to rescind the policy. On the other hand, misrepresentations made after a loss will typically provide the insurer with a right to deny coverage for the submitted claim. In Florida, the defense of misrepresentation is derived from Florida statutes, which allow insurance carriers to cancel coverage if the carrier can show a misrepresentation in an insurance application that is material to the risk insured. The law, in essence, states that a “misrepresentation, omission, concealment of fact, or incorrect statement” can prevent a claim recovery.

 

It is always recommended when completing and submitting an application for any type of insurance that the responses to questions therein be completely honest and forthright, because when one is involved in an accident, and medical treatment is necessary, PIP insurance coverage should be available for use. The amount of money that the insurance company would potentially pay out on a claim far exceeds whatever one would be saving at the time of policy purchase by not fully cooperating and honestly answering the questions in the application.

 

Needless to say, the foregoing applies to any type of insurance application, and by not completely and honestly answering the questions in the initial application and/or later on updating the answers, the result may have significant adverse consequences and potentially be the source of or basis for a denial of needed benefits and/or voiding the policy completely.

The Centers for Disease Control and Prevention’s (CDC) eviction moratorium will expire on March 31 unless it issues an extension. It’s unclear what will happen come April 1. President Joe Biden’s administration has less than a week to decide on extending the nationwide eviction moratorium.  Florida renters are currently protected only by the federal moratorium.  The CDC eviction moratorium is federal law.

Current eviction moratoriums  (As of March 27, 2021)

 

Eviction moratoriums are currently in place until:

March 31 — For any residential tenant of a single-family house, condominium or apartment who downloads from the U.S. Centers for Disease Control and Prevention’s website and submits to their landlord a declaration attesting that they are unable to pay their rent because of a COVID-19-related income loss.

June 30 — For any tenant of a single-family home with mortgages owned by Fannie Mae, Freddie Mac, Federal Housing Administration, U.S. Department of Agriculture or U.S. Department of Veteran Affairs.

Steps To Take If You Can’t Afford Rent

Tenants unable to pay rent because of Covid-19 have resources available to them. However, they are not automatically granted, so it’s important to be proactive in order to maintain your housing.

• Communicate With Your Landlord

 

Talk to your landlord as soon as you know you won’t be able to pay rent either on time or for the foreseeable future. Waiting until the last minute or after rent is past due could make working out a plan with your landlord more difficult.

The best thing to do is to get everything in writing (in case you have to go to court for eviction proceedings), so email would be an ideal way to communicate, Roth says. You might be entitled to rent relief funds, which can—by extension—also help your landlord. So, that’s a win-win for both parties. Let your landlord know that you plan to apply for rent relief, which covers back rent as well as current rent.

• File a Declaration Form With Your Landlord 

In order to qualify for rent relief, tenants must attest that they have been impacted by the pandemic and file a document stating as such with their landlord. The CDC has a form that tenants can use.

• Apply for Rent Relief 

There’s about $46.5 billion in rent relief out there for renters who need help. The problem is gaining access to that money. Unlike the stimulus checks, rent relief is not automatic. The other problem is that there is no central location where renters can access these funds. Cities and states have allocated funds to various local organizations to distribute within their communities.

If you’re unsure where to apply for rent relief, check the United States Department of Housing and Urban Development (HUD) database of state programs; they provide a list of places where you can apply for help in your area.

You’ll have to meet certain criteria to qualify for help, including earning less than $99,000 ($198,000 if filing jointly) annually.

• Seek Legal Aid if you Need Help 

As part of the $1.9 trillion American Rescue Plan, there are funds dedicated to legal counsel for renters who need help. If you’re unsure of your rights or if your landlord is threatening eviction, contact legal aid in your area. The Legal Services Corporation offers a database of free legal counsel in your area.

• If You’re Called to Court, Attend all Eviction Hearings 

Dealing with financial setbacks and any health issues arising from the pandemic is already stressful, so being called to court to defend your situation just adds more pressure.

Before your court date, make sure you have as much proof of your Covid-related financial or health problems as possible. This might include written testimony from your healthcare provider or employer, bank statements showing income reduction or a letter of termination from your workplace. Again, you should also contact legal counsel in your area to get information on your rights and help through the eviction process.

Han habido rumores sobre la disolución de la Comisión de Nominación Judicial Federal bipartidista desde hace algún tiempo, en la que he tenido el privilegio de servir.

La Comisión, apodada como “El JNC Federal”, es un organismo compuesto principalmente por abogados experimentados que son nombrados por los dos senadores de los Estados Unidos de la Florida para examinar a los candidatos que se presentan para jueces federales.

El JNC Federal del Distrito Sur es uno de los tres en Florida, y recomienda a los jueces que deciden casos desde los cayos, al condado de Palm Beach (los otros sirven a los Distritos Medio y Norte de la Florida).

Aunque no fue un proceso perfecto, los 35 miembros del Federal JNC produjeron una lista de 10 candidatos altamente calificados para el banco federal para llenar cinco vacantes cuando se reunió a fines de 2017. Y, nuevamente, recomendó nombramientos muy calificados recientes para el banco federal en 2019.

El riguroso proceso de entrevistas e investigación de antecedentes y los enérgicos desacuerdos entre los comisionados del JNC contribuyeron en gran medida a la calidad de las recomendaciones finales, que luego se convirtieron en los nominados por el presidente de los Estados Unidos y fueron confirmados por el Senado.

Ahora, con un nuevo presidente, deberíamos continuar el proceso. En Florida tenemos dos senadores estadounidenses del mismo Partido Republicano. Pero hemos visto que los funcionarios electos del mismo partido pueden, no obstante, estar en desacuerdo; por lo tanto, ¿por qué no dejar el JNC en su lugar para quitarles el trabajo de campo a los ocupados senadores?

Al final, tanto los senadores Marco Rubio como Rick Scott pueden estar de acuerdo con los finalistas, pero el presidente Demócrata Joe Biden puede simplemente negarse a nominar a esos candidatos para el cargo vitalicio. Eso podría llevar a un estancamiento, pero también podría obligar a ambas partes a comprometerse y concentrarse en recomendar a los candidatos mejor calificados para el poder judicial.

Los senadores conservan el poder de remitir y recomendar solo a aquellos individuos cuyas calificaciones y filosofías sean consistentes con sus principios.

Y como siempre, los senadores pueden cambiar la composición del JNC de mutuo acuerdo en cualquier momento.

Sin embargo, la eliminación del JNC en conjunto haría que estas nominaciones sean menos transparentes y podría producir resultados potencialmente embarazosos si los nominados no son examinados adecuadamente.

Deberíamos mantener el Federal JNC. El proceso es beneficioso para los senadores, el presidente y, lo que es más importante, para el público, que depende de un poder judicial federal justo y calificado.

Renier Díaz de la Portilla, Esq.

Caserta & Spiriti, Abogados

In a motor vehicle accident in Florida where a driver, occupant, motorcyclist and/or bicyclist (also, motor scooter, moped and e-scooter operator or rider) was in a serious crash but the other driver did not make contact with them, the questions are: can the other driver be at fault, and can the victim pursue a claim?

The answer is yes to both.  HOWEVER, in a no-contact vehicle accident, you will need independent witnesses and/or or evidence to prove it!

If you take evasive action to avoid a collision and end up crashing, you may still be able to recover, even without an impact, if the other driver’s negligent actions are the cause of your injury or damages. The question under Florida Law is not whether the vehicles made contact, but rather, if the other driver placed you in a “foreseeable zone of risk” which means that the other driver’s actions negligently placed you in immediate risk of physical harm and was a danger which a reasonable person should anticipate as the result from his/her actions.

This situation happens quite often to smaller cars versus big trucks, or motorcycles, motor scooters, e-scooters, mopeds, and bicycles versus an automobile. Normally, this situation occurs when a driver does not see the other smaller vehicle and pulls out right in front of them from a driveway or parking lot. It also commonly happens when drivers run stop signs or make left turns without seeing them. This forces the smaller vehicle to make a split-second decision to either deflect (often hitting a curb or other object) or stop suddenly or whatever other evasive action to avoid an accident as well as impact and thereby gets injured or sustains damages.

Another common example seen in these circumstances is when cars or vehicles pass too closely. There should be sufficient space between vehicles. In specific, motorcyclists, mopeds, scooters, or cyclists know that many drivers do not give them at least three feet or car length. When this scenario occurs, the drivers or operators of the smaller vehicles may have insufficient space and time to react properly or may even be forced off the roadway.

If the foregoing happens, it is important to get as much information you can about the other driver and the car. You will want to report it to the police as soon as you are able to allow them to begin an investigation. Finally, you will want to check if there are any witnesses who can confirm details about the accident or surveillance cameras, which documented the incident.

Just because there was no contact, does not mean there can be no claim. You may still be able to recover so long as the other driver’s lack of care is the cause or reason for your injuries and/or damages.

Medicaid in the United States is a federal and state program that helps with healthcare costs for people with limited income and resources. Medicaid also offers benefits not normally covered by Medicare, including nursing home care and personal care services. The Medicaid program covers 1 in 5 Americans, including many with complex and costly needs for care. The program is the principal source of long-term care coverage for many Americans.  Florida Medicaid is the state and Federal partnership that provides health coverage for selected categories of people in Florida with low incomes.

The difference between Medicaid and Medicare is that Medicaid is managed by states and is based on income. Medicare is managed by the federal government and is mainly based on age. There are, however, special circumstances, like certain disabilities, that may allow younger people to get Medicare.

To be eligible for Florida Medicaid, you must be a resident of the state of Florida, a U.S. national, citizen, permanent resident, or legal alien, in need of healthcare insurance assistance, whose financial situation would be characterized as low income or very low income. You must also be one of the following:

• Pregnant, or
• Be responsible for a child 18 years of age or younger, or
• Blind, or
• Have a disability or a family member in your household with a disability, or
• Be 65 years of age or older.

To be eligible, a person must have an annual household income (before taxes) that is below a designated amount.

 

Medicaid is used to pay for medical care. Long-term care costs can be overwhelming to Florida families. Florida Medicaid Planning can assist with legally and ethically shifting assets from “unprotected” to “protected” so an individual may qualify for Medicaid benefits. This can greatly help a family with long-term care costs and keep assets with the spouse. One aspect of this process is known as Medicaid Spend Down. ‍

In general, an individual can use Medicaid Spend Down, which consist of a series of financial strategies when a person’s assets are too high to qualify for Medicaid. An individual must spend down some of these countable resources to reduce the level downward to qualify for Medicaid.

Various states have different asset thresholds.  Consequently, an individual would have to spend down eligible assets to receive benefits.  In Florida, the current threshold is a $2,000.00  asset limit and $2,382.00 monthly income limit. Countable assets to determine a spend down potential could include savings accounts, IRAs, and 401(k)s, and other investments including stocks, bonds, and mutual funds. In other circumstances, certain categories of funds are deemed exempt or non-countable.  However, in order to do a spend down can depend on a variety of factors. To determine how to calculate the spend down amount while considering each individual financial situation, you should consider working with a Florida Medicaid Planning Attorney.

Many of the biggest public concerns include paying for prescriptions, expensive medical care, home health care (home health aides), ALF bills, and nursing home bills. For those who are disabled or over age 65, spending down permits a person the opportunity to receive mandatory benefits, which include services such as inpatient and outpatient hospital services, physician services, laboratory and x-ray services, and home health services, among others. An individual may also receive optional benefits, which include prescription drugs, case management, physical therapy, and occupational therapy.

A few reasons people will need to spend down their assets are receipt of a large sum of money that would put them over the allowable Florida Medicaid eligibility limits. The foregoing may occur due to receipt of a personal injury settlement, an inheritance, or any other large payout. Occasionally, if the increase in assets only puts the individual over the threshold by a few thousand dollars, the spend down could be as simple as paying off some debt, prepaying for funeral expenses, or making repairs to the house, etc. In the alternative, if a person is quite a bit over the limit, however, a Florida Medicaid Planning Attorney, such as those in the law firm of CASERTA & SPIRITI, should be consulted to make sure that the spend down is done appropriately and that money is not wasted.  Accordingly, there are a variety of strategies using special needs or irrevocable trusts, Medicaid compliant annuities, personal service contracts, and certain other investments to name a few, which allow a Medicaid spend down plan to avoid waste and to periodically allow the set aside of funds to be used at a later date.

Florida is one of two states, which allow spousal refusal.  In these scenarios, the well (or community or at home) spouse will refuse to provide support for the ill spouse who needs nursing home care. As a result, the spouse who needs care will immediately be eligible for Medicaid and receive services with these expensive facilities.

Further, when applying for Medicaid, a person or family must ensure that they have not given assets away within a specified period of time or look back period prior to applying for Medicaid; otherwise, it can result in a Medicaid transfer penalty. Again, a Florida Medicaid Planning Attorney, such as those in the law firm of CASERTA & SPIRITI, can provide appropriate counsel.

The state of Florida requires all drivers to be insured, but is the minimum enough?  NOT REALLY.  In an accident with bodily injuries caused by you, then you may be considered an uninsured driver in Florida!  Any responsible person should insure their car in the event of an accident. HOWEVER, in Florida, the bare minimum insurance does not require you to purchase protection for some very basic accident scenarios.  PIP/PD is what is required by law at this time.  The minimum requirements for auto insurance coverage are: $10,000 for personal injury protection (PIP) $10,000 for property damage liability (PDL).  The PIP covers your own medical bills sustained in a motor vehicle accident at 80% in addition to any applicable deductible.  PD Liability covers the damage caused to another car, fence, electrical pole, etc. that was caused by your negligent driving.    Customers of insurance misunderstand the meaning of  “full” coverage,  Lawyers as well as Insurance Agents often use the term “full coverage” to mean the bare minimum protection required by law. Again, in Florida, that equals to $10,000 of personal injury protection (PIP) and $10,000 of property damage liability (PDL).

You need car insurance to drive in Florida.  If you’re caught driving without auto coverage, the state might fine you, suspend your license and registration, make you file an SR-22 or even put you in jail.  Further, your premiums may go up a great deal when you buy an auto insurance policy.

You may think that if you have the minimum insurance required by Florida law, you are covered after a car accident. In fact, without bodily injury liability coverage, you are very likely to be personally responsible for medical bills or other damages to other parties resulting from a car accident for which you were negligent or legally responsible for causing.

Other coverages you should consider, in addition to Bodily Injury coverage, are Uninsured Motorist(UM-for your own injuries caused by a negligent third part who has no insurance, no bodily injury coverage or inadequate coverage), Comprehensive & Collision(for your own car damage), and there are others.  You should figure what types of coverage you wish to have and shop around for the best deal possible for the most coverages you can afford.

CASERTA & SPIRITI can provide important information that every driver in Florida should know. If you’re now wondering “if you are adequately insured,” the attorneys at our law firm can help you answer that question.

Slip, trip, and fall accidents are very common and occur in stores, restaurants, and other businesses, parking lots, homes, land as well as on city sidewalks. In many cases, these accidents are not the fault of the victim.  If so, then Florida law requires buildings, businesses, walkways, and parking lots, among others, be maintained for safety.

These types of cases are known as premises liability cases.  Consequently, if you have been injured in a slip, trip, and/or fall down accident due to someone else’s negligence of their property could mean you are entitled to make a claim or sue for compensation to recover lost wages, medical bills incurred, and pain and suffering resulting from the subject accident.

In order to properly document the accident and to get proper medical care, you should first and foremost, get the medical care you require following the accident. In addition, your treating physician can fully document your injuries. Your medical records will be crucial evidence in your case should you seek compensation and pursue the claim.

Reporting the Accident – When an accident takes place in a store, restaurant, business, sidewalk, parking lot, hotel, or home, etc., you should report it immediately to the manager, owner, or landlord. The manager, owner, or landlord should document the accident in a written incident report and provide you with a copy, and you should request a copy.

You should collect and document vital information, so if others witnessed your accident, get their names and contact information as potential witnesses should you pursue a legal claim. Take pictures of the scene of the accident, making sure to document the conditions which contributed to your accident. Write out your recollection of the accident including what you were doing, how you fell, time, date, and any other pertinent information. Keep the shoes and clothes you were wearing at the time of the accident stored in a safe place and take photos of those as well.

You should try to remain calm and not place blame or accept any fault. Limit your comments to the business manager or owner.  You should also refrain from posting details of your accident on social media. You should speak to an attorney prior to giving a statement to the involved insurance company for the premises where the incident occurred.

After an Accident, you should promptly contact an experienced Personal Injury lawyer, such as the attorneys at the law firm of CASERTA & SPIRITI to review your case, and if retained, to assist you in pursuing your bodily injury claim.