Author: CSG Firm

REAL PROPERTY OWNERSHIP & INJURY LIABILITY IN FLORIDA

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Usually, the person or business who owns the real property and the individual or business occupying it will both owe a duty of care to those who enter the premises. If someone is injured while visiting the property, one or both parties may be responsible depending on the circumstances of said accident.

This is called Premises Liability.  A premises liability lawsuit can hold a property owner or occupier and/or possibly others responsible for any injuries and/or damages arising out of an accident or incident occurring on said premises. In all states, owners that occupy a property must make a reasonable effort to maintain a safe environment for visitors to it.

The basic Duty of Care is essentially where a person who owns, leases, occupies, or controls property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition.

Generally, the law holds each person responsible for the consequences of his or her own actions – if your intentional or negligent conduct results in injuries to another person, you may be held civilly liable for the reasonable monetary value of any damages proximately caused by your actions.

Just as an auto accident, there are a few factors that must be present for someone to be considered negligent in the case of a slip and fall accident. If someone is injured on your property, the law does not automatically regard you as responsible, or that you must compensate them.

Under Florida Statute 768.075, a Florida homeowner or property owner cannot be held liable for any injuries or deaths sustained on their real property by a trespasser IF the trespasser was under the influence of alcohol or some other mind-altering substance, etc.

As a rule, property owners are not liable for injuries suffered by trespassers.  However, in any personal injury lawsuit by a trespasser against a property owner, the court will essentially say, that property owners are not usually liable for injuries to trespassers, so an injured party must prove why their case is different regarding circumstances or exceptions, etc.

In general, no liability is incurred since an individual, who is breaking the law by trespassing, waives their right to sue for injury or damages by doing so. However, there are some exceptions that allow certain trespassers to collect compensation if they are injured on an unsafe premises.

Minors or children my be a different matter. If the trespasser is a child, the “attractive nuisance doctrine” may come into play.  This exception protects minor children who are injured on unsafe real property. It is based on the understanding that children can be easily attracted to some unappreciated danger (attracting or enticing a child’s curiosity, such as a pool), or that they can wander into an unsafe situation regardless of the adequacy of warnings. Children are not classified or considered the same as an adult trespasser.  Real property owners or occupiers who do not safely maintain their home or business premises and cause harm to a child can be held responsible.

By and large, property owners cannot use deadly force to protect property.  Although, property owners may be able to shoot at trespassers in self-defense if they fear great bodily harm or death. BE WARNED, however, shooting at a trespasser is always a legal crapshoot.

An owner can also be held liable if he or she rents out a property in a dangerous condition without warning the tenant. In that case, even if the tenant is in total control of the property, any injuries stemming from the previously existing dangerous condition will be the owner’s responsibility.

In most cases, you cannot lose your house in a lawsuit in Florida. The most important and well-known exemption from creditors is the homestead exemption of real property. Your home is protected from creditors in Florida, subject to acreage limitations. There is no monetary limit on the homestead exemption in this regard.

Article X, Section 4 of the Florida Constitution exempts homestead property from levy and execution by most judgment creditors. It means that a creditor cannot place a lien against or force the sale of your homestead to satisfy an obligation or monetary judgment.

Insurance is necessary to protect property owners/occupiers against such liabilities like auto insurance.

Every homeowner’s insurance policy is different, but most slip and fall accidents, for example, will be covered, except where the homeowner acted intentionally to cause the slip and fall. Most homeowner’s policies have two types of coverage, i.e., liability coverage and no-fault medical coverage.

Commercial general liability (CGL) is a type of insurance policy that provides coverage to a business for bodily injury, personal injury, and property damage caused by the business’s operations, products, or injuries that occur on the business’s premises.

Again, under Florida law, the owner of a property, or tenant such as a shop owner, is responsible for maintaining a premises or property in a reasonable condition free of hazards. A failure to do so may create liability if an injury results to a visitor from negligent maintenance.

Premises liability claims are about unsafe conditions on someone’s real property. Personal liability is about someone’s own actions and/or vicarious liability, including respondeat superior, which means a principal is liability or responsible for the acts of their agents or others. When respondeat superior applies, an employer will be liable for an employee’s negligent actions or omissions that occur during the course and scope of the employee’s employment.

The duty of a Florida property owner applies to for-profit companies and nonprofits. Homeowners may be liable. The federal, state, or local governments may also be liable. Governments should protect people who visit courthouses and other public places, among others. Maintenance and repair crews may also be liable if they failed to protect the public.

In the state of Florida, the statute of limitations or deadline for a negligence, accident, or premises liability case is four years from the date of accident, incident, or injury where you must present a claim and file a lawsuit in the appropriate court of the state of Florida or be forever barred from obtaining a recovery.

If you have are any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI before an unfortunate and unexpected accident occurs or before any deadlines are missed after an accident occurs!!

Real Property Ownership in Florida and Estate Planning

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Florida law recognizes three basic types of joint ownership. Two are joint tenancy and tenancy by the entireties, which also has what is called a “right of survivorship.”  The term means that, when one co-owner dies, the surviving owner automatically receives full, undivided ownership of the property. By definition, a co-owner who holds a partial interest in a tenancy by the entireties or joint tenancy with right of survivorship cannot transfer that interest to heirs through probate since the interest never becomes a part of the probate estate. Further, with a joint tenancy or tenancy by the entireties, the joint interests must be equal. The third type of ownership is the one without a right of survivorship and that can be transferred by way of probate. It is called tenancy in common. Instead of owning a property together, tenants in common each own a percentage interest that can be transferred. Florida law assumes a 50/50 split, but the percentages can be different if the owners decide otherwise. Consequently, a tenancy in common and Florida estate planning strategies can be utilized for various purposes when a right of survivorship is not the goal or outcome.

If an asset is owned by more than two co-owners, title is usually held as tenants in common, with each owner owning their respective percentages. On the other hand, tenancy by the entireties is reserved for married spouses only, and therefore by definition it is limited to only two owners. A joint tenancy, however, can include three or more joint owners. The result is that, when a co-owner dies, his or her interest merges with the interest of the remaining or surviving owners. For example, a joint tenancy with three owners, and one dies, there are now tow owners with a joint tenancy. The process continues until only one surviving owner remains. The last or final living owner thereby holds a complete and undivided title to the said property.

For purposes of understanding a Florida tenancy in common and estate planning, it merits saying that, although real estate is the most common example when discussing joint ownership formats, other types of assets can be jointly held as well. In the state of Florida, personal property, financial accounts, and many other types of assets be owned jointly as tenants in common, joint tenants with right of survivorship, or tenants by the entireties.

Also, in Florida, a tenancy in common ownership is presumed the default form of co-ownership. If a deed with more than one owner does not specifically state that the owners are tenants by the entireties or joint tenants with a right of survivorship, said owners are presumed to be tenants in common. Tenancy in common can also be created through the “destruction” of one of the other two types of co-ownership. Joint tenancies are destroyed if a creditor attaches the subject property in Florida or if one of the co-owners transfers an interest.  In fact, transfer of an interest destroys a joint tenancy even if the transfer is from one owner to another.

Tenancy by the entireties in Florida is reserved exclusively for a married couple, therefore, it can be destroyed by divorce.  If former tenants by the entireties are no longer married, they become tenants in common, with each having a 50% ownership interest unless a marital property settlement agreement states otherwise.

Joint tenancy with right of survivorship as well as tenancy by the entireties automatically convey ownership interests outside of probate thereby avoiding some of the time and expense related to probate administration in the courts.

Usually, a tenancy in common property interest is the only type of the joint interest types that goes through probate and can be transferred by way of provisions in a Last Will and Testament or through intestate succession (if there is no Will) following Florida law. As a result, if you own a 50% share of a property as tenants in common with another, you can bequeath or devise that 50% share to whomever you direct in your Last Will and Testament (Will), or it can go to your next of kin by way of Florida law if you have no Will. After the probate estate is administered, the designated beneficiary or heir or whatever number of them will then own a 50% interest or share (singularly or aggregately) in the property alongside your surviving co-owner as tenants in common.

Avoiding probate quite often appears to be a popular objective by many in estate planning. However, it is not the only goal. The use of a tenancy in common for Florida estate planning gives one more control over where your joint ownership interest eventually winds up. If you have a joint tenancy with right of survivorship and you die first, your co-owner now holds complete and undivided title to the property. Your beneficiaries or heirs do not receive an interest in it. On the contrary, a tenancy in common allows you leave your half of the Florida property to whomever you desire, including to the co-owner, if that’s what you wish to do.

Florida’s co-ownership options or alternatives allow for a few estate planning possibilities regarding conveying or transferring real estate or other property, while also raising various potential complications. All these can be addressed in more detail in a future article.

If you need assistance in Florida when doing, redoing, revising, orupdating your Estate Plan, please contact one of the attorneys of CASERTA & SPIRITI at your earliest convenience. We have many years of experience with Florida Estate Planning and can assist you in making the appropriate selections or changes which are best suited for your circumstances.

PRODUCTS LIABILITY RESULTING FROM DEFECTIVE PRODUCTS

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Florida law allows you to hold designers, manufacturers, suppliers, retailers, distributors, and others liable for the injuries you sustain from their products. Florida also allows family members to file a claim and collect compensation on behalf of a loved one who died in an incident caused by a defective or dangerous product. This area of law is known as Products Liability or Product Liability. It is where certain groups who make products available to the public are held responsible for the injuries and/or damages those products cause.

Defective products can range from items you would expect to be dangerous to those usually considered harmless. These items can include heavy machinery, cars, clothes, batteries, pharmaceutical drugs, firearms, elevators, and even children’s toys. The fact of the matter is that, if it is a product you can buy and a defect leads to serious consequences, liability can result.

If you have suffered personal injuries from a defective product, it can be difficult to know who is ultimately responsible. If all you did was buy a product at a store, is it your fault for buying it, is it the store’s fault for selling it or is the product’s company at fault for creating or manufacturing it? There are essentially three (3) categories of responsibility: design, manufacturing, and marketing.

Design defects occur when a product is inadequately planned in such a way as to pose unreasonable hazards to product users. The underlying basis for this theory of defect is that the product manufacturer should have adopted a design that would have reduced the risk of accidental injury. When a product has a design defect, the plaintiff or victim primarily sues because of negligence or strict liability. The negligence cause of action will allege that the manufacturer knew or should have known of the risk associated with the design.

Manufacturing defects are ones that were not intended in the design but can come along as a result of production. This kind of defect occurs when a product departs from its intended design and is more dangerous than consumers expect the product to be. These could be widespread defects or ones that only end up happening to a single product in a line of millions. Manufacturing defects include incorrectly attached parts, improperly installed electrical circuits, improperly manufactured plastic or material and incorrect bolts or fasteners, among others. If you suffered a personal injury because of an unintended missing or added part, that may be a manufacturing defect.

Marketing defects typically stem from failing to warn or explain elements of a product that are potentially dangerous. It occurs when a product has inadequate warnings or instructions regarding its proper use. The manufacturer of a product has a duty to warn its users of dangers that are not obvious. For instance, if a drug or medication does not contain a warning that it should not be taken in combination with another drug, that is a marketing defect. If you were to unknowingly take that it alongside another, you could suffer damages or personal injuries. One of the most famous cases involving a marketing defect is the “Big Tobacco” lawsuits of the 1990’s. The issue at the heart of these lawsuits was that tobacco companies knew their products were addictive and caused lung cancer, but they did nothing to disclose or warn consumers of those known risks. One of the consequences of the Big Tobacco litigation was requiring companies to put clear warning labels on cigarette cartons.

For all these types of defects, you can choose whether to file a lawsuit for yourself or for a larger community affected (i.e., class action). For instance, if you purchased a product that failed after one month of use due to a design defect, and it happened to others, you might have a case involving a class action lawsuit against the responsible business. If you won or favorably settled the lawsuit, everyone who had purchased that same product would share in the recovery of the settlement for said class. However, often, personal injury cases are personal to the individual victim who suffered the damages.

Some product defects can seem innocuous, imprudent, pointless, or frustrating, but if you are injured by them, you should contact a lawyer to discuss your rights and options. If you have been injured as the result of a defective product, CALL CASERTA & SPIRITI immediately.

Why Uninsured Motorist Coverage Is Important

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Whether you are involved in an auto accident with a Phantom vehicle, Uninsured vehicle, unknown Hit & Run, a vehicle and driver with No Bodily Injury Liability (BI) coverage or a vehicle or driver with Not enough BI coverage, you need Uninsured Motorist (UM) coverage.

If you are forced off the road or cut off by a turning vehicle that keeps going and no impact occurs, an unknown phantom vehicle has caused your accident. A phantom vehicle is one that never hits you but causes you to take evasive action leading to a crash with property damage and/or injuries to you or to any passengers in your vehicle. When the phantom vehicle is never identified, who pays for your injuries and damages to your car?

Accidents involving phantom or unknown hit & run vehicles require prompt and careful investigation. Many times, eyewitness testimony is critical to verify the details of what you may or may not have seen yourself. These cases may even require an accident reconstruction expert to verify that what you and the witnesses say happened, reasonably occurred in that manner.

Your own automobile policy is your only opportunity for paying the medical bills incurred in said accident as well as any pain and suffering sustained in an accident caused by a phantom or unknow hit & run vehicle. One’s own No Fault or Personal Injury Protection (PIP) coverage will pay your medical bills under Florida No-Fault Automobile law. Collision coverage in your auto policy will pay for the damages to your vehicle. If you are injured, your bodily injury claim (pain, suffering, disability, lost ability to work) would need to be recovered under an Uninsured Motorist Coverage

(UM) on your automobile policy.
 
Most auto insurance policies will have a specific definition for what is a phantom vehicle under the terms of the policy. You will have to prove you were injured by a phantom vehicle that falls within the description in your policy.

The same can be said regarding accidents involving an at fault vehicle, which is uninsured as well as and an unknown Hit & Run vehicle.

A slightly different scenario exists if the responsible third party or other vehicle has the minimum coverage required by Florida law, which is PD Liability and PIP coverages. Those coverages will take care of that driver’s own medical bills (i.e., PIP) and it will take care of your Property Damages claim (i.e., damage to your vehicle that said driver caused-PD Liability).

Finally, there is the situation where you sustain significant injuries and the at fault other vehicle merely has a minimum $10,000.00 BI coverage, which is insufficient to cover your claim. If you have UM coverage, and the other party offers it policy limits, following required procedures under Florida law & under your own automobile policy, your UM becomes UIM or Underinsured Motorist coverage and can be stacked on top of the at fault party’s BI policy limits. An example would be if you have $10,000 in UM/UIM coverage, and the at fault other party has $10,000 BI coverage, you could potentially recover $20,000.00.

One cannot adequately emphasize the importance of having UM on your automobile policy. When shopping for insurance directly or through an Agent, you must clarify and itemize the coverages since the term “Full Coverage” has a different meaning among the consuming public and the insurance industry. Usually, the insurance industry says “full” to mean what is required by state law and in Florida that means only PIP & PD Liability coverages, & that’s it! You must itemize the coverages you want and inquire as to their cost. UM coverage can protect you from the multitude of drivers and vehicles on Florida’s roadways that have minimal or no insurance or are unknown phantom or hit & run vehicles.

If there are any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI before an unfortunate and unexpected accident occurs!!

When Should You Redo or Update Your Estate Plan?

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An Estate Plan should reflect your circumstances in life. Consequently, it may need to be revised from time to time. Estate Planning is the process of predicting and organizing, during a person’s life, for the management and disposal of that person’s estate during their lifetime, in the event of incapacity and after death. As for the latter aspect, it is also the process of creating or establishing a legally binding plan for what will happen to your estate, i.e., the payment of taxes and expenses as well as distributing assets such as real property, money, personal belongings, etc., after your death. An Estate Plan is customized to everyone’s particular or individual needs, circumstances, or situations. Planning can be done using wills, trusts, insurance policies and other instruments. It will change alongside changed circumstances or after significant life events.

You may need to change or update your current or prior Estate Plan after one or more of the following significant life events.

After getting married or remarried and you have someone new in your life, you will want to include or at least consider them in your Estate Plan. If you have a new spouse or a long-term partner who you want to be included in your Estate Plan, you will need to add them yourself. Make sure to do this modification sooner rather than later.

After divorcing, it may seem obvious that you would no longer want all or any of your assets to be distributed to your ex-spouse. Certain matters may be reworked by law or statute, but if you want your ex-spouse properly removed from your Estate Plan, you should actually do it and revise your plan accordingly to avoid unintentional outcomes or surviving family members having to deal with uncomfortable consequences later.

After having a child through birth, adoption, or marriage, adding a new child to your family is always a significant event. After you have added a new child, make sure to add them to your Estate Plan as well. This is especially important for blended families when adding stepchildren, if applicable.

After relocating to another state or country, one must consider that Estate Planning rules may vary from state to state and certainly in foreign countries. If you have recently moved to or from Florida, you want to work with an Estate Planning attorney experienced in that state or country to update your prior Estate Planning to be valid in your new state or country. 

After a substantial financial change, whether you win the lottery or file bankruptcy or any other significant change, it is important to change your Estate Plan after the size of your estate has been substantially altered. If you have recently had a positive financial change, then more Estate Planning opportunities may be available to you. If your finances have taken a dive, make sure to change your Estate Plan to protect your future.

If you need assistance in Florida when redoing, revising, orupdating your Estate Plan, please contact one of the attorneys of CASERTA & SPIRITI at your earliest convenience. We have many years of experience with Florida Estate Planning and can assist you in making the appropriate changes which are best suited for your current circumstances.

LIVING WILLS IN FLORIDA

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Florida law gives competent adults the right to make decisions regarding their own healthcare. They can choose which treatments they want and even refuse medical care completely if they so desire. However, when they are unable to make these decisions on their own due to incapacity, an advanced directive called a Living Will can ensure that their future healthcare wishes are followed.

What is a Living Will?

Unlike a Last Will & Testament, which directs the distribution of assets in an estate or legal transfer of ownership of the same after death, a Living Will protects an individual (and their loved ones) during their lifetime.

The unfortunate reality is that critical healthcare decisions are often made at a time when a patient is mentally incapacitated, unconscious, or otherwise unable to direct their own medical providers, and failure to provide advance instructions can create difficulties for the individual and/or their loved ones.

With a Living Will, one is able to:

  • Specify their wishes or desires about any life-prolonging treatment.
  • Appoint a healthcare surrogate to make medical decisions for them.
  • Name an alternate healthcare surrogate if the original choice is unwilling or unable to act when the time comes.

By taking time to plan now, individuals can spare their loved ones any unnecessary stress, avoid decisions that are contrary to their wishes, and make sure that their care is overseen by someone they choose.

How Do You Obtain a Living Will?

In Florida, Living Wills must be signed in the presence of two witnesses, at least one of whom is not the signer’s or maker’s spouse or a blood relative. If the maker is physically unable to sign the Living Will, one of the witnesses can sign in the presence of and at the direction of the maker. Even though an individual is not legally required to prepare the documents with an attorney’s assistance, there are several advantages to doing so, namely the fact that an experienced estate planning attorney will ensure that all possible scenarios are covered and any critical questions are answered. Once a Living Will has been drawn up and executed, it should be accessible to those who may need it in the future, such as the primary and/or alternate healthcare surrogates, a primary care physician, and possibly the attorney, who can ensure that the right parties get it if necessary. One should also keep a copy in a safe place and carry a card indicating that he or she has a living will and where it can be found.

REQUESTING MEDICAL RECORDS IN FLORIDA

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If you are contemplating any type of lawsuit for personal injuries or even a claim against a healthcare provider, you need to obtain a full and complete copy of your medical records. Securing copies of your personal healthcare records is an important first step in the claims process, because when the patient has possession of his or her records, they can corroborate their injuries and/or the suspect healthcare provider will not have the opportunity to make self-serving edits to the medical records.  Further, by being in possession of your medical records, it will be easier for you to consult with medical specialists who can support your primary treating physician’s care and diagnosis/prognosis or evaluate any negligence in your prior medical care.

Sometimes, patients or clients complain that the medical office refuses to provide a copy of their records. Typical excuses include false claims that the records can only be requested by another healthcare provider, or that the records cannot be released without payment of an outstanding bill, or even that patients are not entitled to the doctor’s records.  All such excuses are inaccurate and contrary to state and federal law.

IT MUST BE NOTED:  It is against the law for any healthcare provider to refuse to provide a copy of the full and complete medical records to the subject patient.  

Your record is the physical property of medical provider. However, the patient controls the release of the information contained in the record.  In general, you must give permission for anyone, other than a member of your healthcare office, to have access to your medical record. By law, your records may be disclosed without your permission under certain circumstances such as in response to a subpoena or court order, to certain government and regulatory bodies, to someone who holds your power of attorney, to someone you have designated as your healthcare surrogate, to another healthcare provider for continued care, and to your healthcare insurer to obtain reimbursement for your care.

By law, only an adult (i.e., age 18 or older) patient or a legally designated representative has the authority to release the information contained in a medical record about them, regardless of who is paying the bills. Legally designated representatives include court-appointed guardians or others with power of attorney for the patient. For children under age 18, only a parent or court-appointed guardian may authorize release of medical information. The next of kin or personal representative of the estate may request those records.

According to Florida law, a physician is responsible for maintaining records for at least five (5) years (64B8-10.002). Because malpractice lawsuits could be brought beyond two (2) years from the date of an incident (additional years for some minors), physicians are encouraged to maintain records for a full seven years. HOWEVER, many purge their records after the five (5) year period.  Under Florida law, many healthcare providers must keep medical records for a minimum period. For example, doctors in Florida must keep medical records for at least five (5) years after their last contact with the patient. Public hospitals in Florida must keep their medical records at least seven (7) years after the patient has been discharged. In practice, many healthcare providers keep their records longer. You have a right to see, get a copy of, and amend your medical record for as long as your health care provider has it.

A federal law called the HIPAA Privacy Rule gives you the right to get and amend (correct) your medical record. HIPAA stands for the “Health Insurance Portability and Accountability Act.” Florida laws also give you rights in your medical record.

Florida Statute §456.057, among others, in Florida, patients have the right to: • See and get a copy of their medical records. Upon your request, your healthcare provider must give them a copy of their medical records in a timely manner, usually within 30 days. They must also let them see their medical record if they ask. The healthcare provider can charge the patient for copies. They can also charge for postage. • Amend their medical record by having information added to it. They have the right to have information added to their record to make it more complete or accurate. This right is called the right to amend your record. • File a complaint. They have the right to file a complaint with the Office for Civil Rights, U.S. Department of Health and Human Services if they believe your healthcare provider has violated their right to see, get a copy of, or amend their medical records. They can also file a complaint with the state agency that regulates healthcare providers. • Sue in state court to obtain their medical record. They have the right to sue in Florida local court to get a copy of their medical records.

Under Florida law, the healthcare provider owns the patient’s physical medical records. For example, if the provider maintains paper medical records, they own and have the right to keep the original records. The patient only has the right to see and get a copy of it.  In Florida, a person can designate another person (a surrogate) to make health care decisions on their behalf. If an individual is their parents’ healthcare surrogate, they generally have the right to get and amend the corresponding medical records that are relevant to making healthcare decisions on their behalf. The agent authorized by that power of attorney has this right while the subject healthcare surrogate is in effect.

You have the right to see your medical record. And again, you also have the right to get a copy of your medical record. These rights are often called the right of access to your medical records. Usually, your healthcare provider must respond to your request for your record in a timely manner, without delay for legal review. This usually means in less than 30 days. Generally, your provider must give you a copy in the format that you request if they are able to do so. You may have to pay a fee to get a copy of your record.

In a potential claim against a medical provider, Florida Statute §766.204 requires that a healthcare provider must provide a potential claimant with a full and complete copy of the relevant medical records within 10 business days (20 days for hospitals).  Although §766.204 does not require a request for records to be in writing, it is recommended creating a paper trail since it could be advantageous to do so should there be a formal claim filed in the future.

It is recommended sending a written request for records by one of the following methods:  via e-mail, with a “delivery receipt” and “read receipt” attached; via fax, with a fax delivery receipt; or, via the USPS, sent certified mail with a return receipt requested.

It should be noted that the healthcare provider is permitted to charge reasonable copying fees as mandated by Florida Administrative Code 64B8-10.003.  Specifically, a healthcare provider may charge no more than $1.00 per page for the first 25 pages, and no more than $0.25 per page for anything more than 25 pages (hospitals can charge $1.00 per page regardless of the number of pages). Ideally, it is recommended digital copies of the records be obtained whenever possible. The records should be requested in a PDF format, and it is good idea to provide an inexpensive USB drive (i.e., thumb drive) to the healthcare provider at the time of the request. Regardless of the format, the healthcare provider is entitled to reasonable copying charges as outlined above.

If you should have any questions about obtaining a copy of your medical records, please consult with the attorneys at the law firm of CASERTA & SPIRITI.

Senator Marco Rubio Names Caserta & Spiriti Attorney Renier Diaz de la Portilla to Important Federal Judicial Nominating Commission

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April 20, 2021

Washington, D.C. — U.S. Senator Marco Rubio (R-FL) announced members of his Judicial Advisory Commission (JAC) for the 117th Congress. The JAC closely resembles Rubio’s bipartisan commission for the 116th Congress. Prior to that, Rubio partnered with then-Senator Bill Nelson for eight years on a similar bipartisan commission.

Former Lieutenant Governor Carlos Lopez-Cantera will serve as the JAC’s statewide chair. Leonard Collins will chair the Northern District JAC. Domingo Sanchez will chair the Middle District JAC. Manny Kadre will chair the Southern District JAC. All four served in the same capacity for Rubio’s commission in the 116th Congress and the Rubio-Nelson commission in the 115th Congress. A full list of members is below.

“It is absolutely critical that we maintain the integrity and independence of our judiciary,” Rubio said. “I am proud of the work our commission has done over the years and grateful for the willingness of Carlos, Len, Domingo, Manny, and all of our commission members to continue in that bipartisan tradition.”

Since 2017 the Senate has confirmed a dozen Florida district court judges recommended by Rubio, and those judges averaged nearly 70 votes in favor despite the deeply divided and partisan nature of the Senate.

Northern District JAC:
Carlos Lopez-Cantera – Statewide Chair
Leonard Collins – District Chair
Philip Bates
Christa Calamas
Marti Coley
Mireille Fall-Fry
Donald Hinkle
Wiley Horton
Keith Hoskins
Cody Khan
William Large
J. Collier Merrill
Mark Minck
Christopher Moya
Amber Stoner Nunnally
Daryl Parks
Scott Ross
Steve Southerland, II
R. Waylon Thompson

Middle District JAC:  
Carlos Lopez-Cantera – Statewide Chair
Domingo Sanchez – District Chair
Lyndon Carter
Jay Demetree
Angela Eady
Eddie Fernandez
Dan Gerber
Nathaniel Glover
Charles Hart
Tom Lee
Charles McBurney
Nora Miller
Ed Page
Paul Perez
Scott Plakon
Chris Posteraro
Adam McGill Ross
Carol Saviak

Southern District JAC:
Carlos Lopez-Cantera – Statewide Chair
Manny Kadre – District Chair
Georgina A. Angones
Nelson Diaz
Renier Diaz de la Portilla
Albert E. Dotson, Jr.
Robert H. Fernandez
Dan Gelber
Jillian Hasner
Jorge Hernandez-Toraño
Yolanda Cash Jackson
Seth Miles
Bernie Navarro
Ed Pozzuoli
Steve L. Waserstein

Additional details on applications will be forthcoming.

Moving To Florida May Be A Wonderful Thing

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In addition to weather, beaches, a good state economy and nice people, Florida offers a beneficial legal climate for businesses and individuals looking to preserve their wealth.  If moving to the state of Florida, there are a few advantages including estate planning.

Only seven (7) states have zero state-level income tax.  One of them is Florida.  Paychecks, pensions, and Social Security income go farther. However, Florida does have other taxes (i.e., sales and hospitality taxes).  As for estate planning, Florida also does not have an estate or inheritance tax.  Although, some large Florida estates may still have to pay at the federal level, they can preserve more wealth in Florida than in states which impose a “death tax,” such as New York, New Jersey, or Pennsylvania.

Only a minority of states charge state-level estate taxes, and the state of Florida stands out since estate taxes are expressly prohibited by the state’s constitution.  Consequently, a state constitutional amendment, and not just new legislation, would be required to add an estate tax in the future.

In addition, Florida Homestead laws, which are built into the state’s constitution as well, prohibit creditors from attaching real estate that qualifies as a “homestead” under the Homestead law.  Creditors are unable to force a sale of a homestead to satisfy a judgment or to place an involuntary lien on the property.  Florida homesteads are even protected from liquidation in bankruptcy.

Many states have homestead exemptions, but Florida’s is unique in that there is no cap or no limit on the value of the protected property.  In the alternative, California, and New York limit homestead protection to about $300,000 and $85,400.  Further, Florida law does not prohibit or prevent homestead property owners from transferring funds into a homestead (e.g., through improvements or mortgage payments) to maximize the protection of their wealth.

Florida’s homestead exemption laws also benefit homestead properties with regard to real estate tax calculations.  Up to $50,000 of a residential home’s value is exempt from assessment, therefore, a home valued at $300,000 is taxed as if its value is $250,000.  A recent amendment further limits property taxes on homesteads by capping annual assessed value increases to three percent (3%) or the Consumer Price Index inflation rate, whichever is lower.  As a result, homeowners are NOT assessed large property tax increases if property values rise significantly.  The aforesaid exemption resulting from the limit on annual increases is also “portable” and can be transferred from one Florida homestead to another.

Florida asset protection laws also offer strong protections for shielding other assets against creditor claims.  Under Florida’s exemption statutes, wages earned by a head of household can be exempt from attachment.  Life insurance protections can provide that cash value stored in permanent life insurance policies are also protected against an insured person’s creditors. Retired individuals can take advantage of a benefit from Florida’s exemption for funds held in annuities, which is likewise protected from creditor claims and attachment.  There are also favorable rules for various types of Trusts, which makes it a beneficial jurisdiction if the goal is to preserve your family’s wealth in this state through multiple generations.

Under Florida law, any assets co-owned by a married couple under certain conditions are assumed to be owned as tenants by the entireties.  The laws in this state for co-ownership by spouses offer various favorable wealth management features.  First, there is a “right of survivorship,” which means when one owner dies, the other automatically (by operation of law) receives full title or ownership to the asset or property, without any need for a legal proceeding called a Probate.  Moreover, when an asset is held as tenants by the entirety, creditors of only one spouse cannot attach it.  If both spouses owe the debt, attachment may still be possible unless the asset is protected by another exemption.

Many states offer tenancy by the entirety ownership for real estate, but Florida allows it for just about any type of asset that can be jointly owned such as land, personal property, financial accounts, and even intellectual property can be co-owned as tenants by the entireties.  Furthermore, any asset in Florida held or owned as tenancy by the entireties enjoys the same protection against creditor claims.

Together with the advantages for financial planning and asset protection, Florida also provides a business-friendly legal climate that can be enticing for entrepreneurs and companies (large and small) to relocate to Florida.  Florida is among the nation’s most pro-business jurisdictions, with “right to work” and at-will employment laws.  Obviously, the absence of any state income tax can increase an existing business’s profitability and make it easier to attract capable employees.  The Florida legislature, not long ago, improved the state’s Florida LLC or Limited Liability Company laws, which assist new small businesses forming such entities. Various publications have indicated that several of the top relocation areas are in Central and South Florida.

If you are contemplating a move to Florida and want to know how Florida law might affect your personal finances or business and/or estate plan, please consult with the full-service law firm of CASERTA & SPIRITI, which has experienced and specialized attorneys together practicing a wide variety of areas of law with a practical approach to solve problems.

DRIVING UNDER THE INFLUENCE FROM CBD IN FLORIDA

Posted by CSG Firm on

Driving under the influence is a charge which needs to be taken seriously here in Florida as well as across the country. There are several substances which are included in the term DUI or driving under the influence. The most common in Florida is alcohol, which is a contributing factor in more than five thousand (5,000) accidents annually. Of course, there are other substances that can result in charges of a DUI in Florida, including CBD and THC.

Each person has a legal duty to avoid driving while impaired. Anyone driving under the influence of drugs, alcohol, or medication poses a risk to others around them. The same goes for fatigued driving or distracted driving as well.

Recently, marijuana use has become more widespread across the United States. In 2012, Colorado and Washington became the first two (2) states to legalize the substance—although like alcohol, it is still illegal to drive while under the influence of marijuana.

The rapid changes in cannabis regulations, products, and services, have created new questions in this increasingly gray-area industry. Particularly, the legalization of CBD products has raised concerns among users on how this may impact them if pulled over while driving.

Questions often arise regarding marijuana (cannabis), and the substances it contains, namely THC (tetrahydrocannabinol) and CBD (cannabidiol). As CBD products become prevalent in the marketplace and cannabis becomes legal in more states, many are concerned that driving under the effects of CBD, THC, or cannabis may carry the same penalties as driving under the influence of alcohol and other drugs.

Here is a comparison of the effects of CBD versus THC cannabis one should consider:

Cannabis, commonly called marijuana, is well-known for its psychoactive effects on the human brain. These effects are the result of THC, a substance which interacts with the brain, enhancing the production of dopamine and producing a “high”.

CBD, short for Cannabidiol, is a chemical that is found in the cannabis plant (better known as marijuana). While most people automatically associate CBD with the effects of marijuana, it is not responsible for any of the stereotypical effects at all.

In medical studies, CBD has been shown to reduce stress and anxiety for people who take it. The chemical is typically used in edible forms or processed into an oil. Using CBD is non-hallucinogenic, which is why it is legal to possess the substance in thirty-four (34) states. Many people still automatically think of marijuana when they hear the term “CBD.”

Practically, it is the component THC that causes symptoms like mood changes, hallucinations, and lack of body control, which are commonly associated with marijuana use. THC, which stands for tetrahydrocannabinol, is another chemical compound found in the cannabis plant.

Understanding the difference between these two compounds is important in understanding the gray area surrounding CBD use while driving. Since both compounds come from the same plant, it is possible to have traces of THC in CBD products. When this happens, it can lead to issues for any CBD users who get pulled over while driving.

Since CBD products lack the hallucinogenic effects of THC, they do not pose a serious harm to most people. The gray area surrounding CBD and driving is due to the effects that this compound has on an individual on a case-by-case basis.

Some of the reported side effects of CBD products are:

  • Drowsiness
  • Paranoia or heightened anxiety
  • Nausea or vomiting
  • Mood swings
  • Diarrhea

These symptoms present differently in each individual who uses CBD, and it is possible said effects may not present themselves at all.  Consequently, taking CBD and driving at the same time can be a safety hazard.

Ultimately, it is up to the individual to decide whether he or she can safely operate a vehicle after ingesting CBD. Any of the potential side effects could impact or impair a person’s ability to drive.

With so much uncertainty surrounding this compound, it is highly recommended that if you are planning to try CBD, you should do so in a controlled environment. It means that the first few times you ingest CBD or any time you try a new brand or product, ensure that you do not get behind the wheel before you see how your body will react.

While drowsy driving is not technically illegal, it is possible to be charged for negligence if you knowingly drove while impaired. The reasons why states put rest areas on the side of the road is to eliminate hazards by giving people a safe area to recover from fatigue. Accordingly, individuals must be held accountable for creating unsafe situations when they take substances, they know will impair their ability to drive.

While there are currently no laws or testing procedures in place for CBD use, should you be pulled over, the police may ask you to perform a Standard Field Sobriety Test roadside. Therefore, impaired drivers, whether resulting from alcohol or drugs, are subject to the same penalties, which means-if you are impaired or intoxicated, it is in your best interest and the interest of others not to drive.

CBD does not cause psychoactive effects and usually does not affect cognition; however, it does have potential side effects.

Dizziness, drowsiness, and nausea can make driving hazardous to you as well as to other drivers on the roadway. If you experience these effects from the use of CBD, you might make unsafe decisions while driving resulting in an accident as well as potential lawsuit and/or criminal charges.

If you are using CBD, it should be in a controlled setting where you can easily determine how it affects you. Some people experience no side effects while others do. The legality of CBD is dependent on its chemical makeup, thus CBD which contains more than 0.3 percent THC is illegal under federal law.  In Florida, for drivers, this means if you thought you were taking CBD without THC and an accident occurs and THC is found in your system, you could be arrested for DUI.

Further, if the CBD you choose is legal (within federal guidelines) and does not impair your ability to drive, you can drive using it.   However, if you experience CBD side effects and cause an accident, you could be charged with negligence.

If you are using CBD with greater than 0.3 percent THC content, and drive under the influence in Florida, you could be charged with DUI. Marijuana is still a controlled substance in the state of Florida, and your CBD/THC would be considered the same if you had the plant form of marijuana.

Because CBD works differently in the body than marijuana in its full form (with THC present), it does not technically qualify as a banned driving substance. While not all state laws are the same, CBD does not inherently impair the body for all users, so it has more room for leniency. Despite CBD’s legality, THC filled products are not legal throughout the United States, even though it is in some states).

The 2018 Farm Bill drastically changed CBD regulations by legalizing the commercial production of hemp (i.e., legally defined as the cannabis plant).  So long as a product’s THC levels/content are below 0.3%, it is legal federally. The foregoing is comparable to the blood alcohol level imposed for alcohol related driving incidents.

While manufacturers are required by law to reduce THC levels in their products, not all of them do. If you are pulled over in the state of Florida and found with THC in your system, you could face legal charges. Furthermore, if you caused an accident or death due to impairment caused by CBD products, you can be held responsible under the Florida Automobile/driving laws and/or Criminal laws.

Consumers need to purchase their CBD products from reputable sources, and as previously discussed, try the products before driving. The Florida laws and penalties increase in severity with each offense:

  • First Offense: Up to six months in jail, 50+ hours of community service, license suspension (one year maximum), and fines up to one thousand dollars ($1,000.00);
  • Second Offense: Up to nine months in jail, license suspension (five year maximum), and fines up to two thousand dollars ($2,000.00);
  • Third Offense: Up to five years in jail, ten year license revocation, and fines up to five thousand dollars ($5,000.00).

To avoid the above penalties, it is imperative that you are confident that the CBD products you are consuming are legal and safe to use. You do not want to unknowingly ingest THC and then end up in trouble for an unintentional offense.

Though the risks of CBD are minimal compared to alcohol and other drugs, they still may carry some risk.  If it causes you unwanted side effects, then it may hamper your ability to drive safely. If you cause a DUI related accident because of CBD use, you could be charged in Florida with both negligence and criminal liability.

Navigating the gray areas of cannabis regulations can be very difficult to achieve. Depending on the severity of the offense, you could be facing harsh legal penalties for use of CBD products. If you have been involved in a THC or CBD related DUI accident in Florida, it is possible that you may be entitled to compensation for your injuries, if caused by another at fault party. YOU SHOULD THEN CONSULT WITH a Personal Injury Attorney.  In the alternative, if the incident is caused by you, then you should report it to your auto insurance carrier and consider CONSULTING WITH a Criminal Defense Attorney.