The Federal Tort Claims Act is a 1946 federal statute that permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. Historically, citizens have not been able to sue their government, which is a doctrine referred to as sovereign immunity. It is legal doctrine that ordinarily prohibits private citizens from bringing a sovereign state into court without its consent. Until the mid-20th Century, a tort victim could obtain compensation from the United States only by persuading Congress to pass a private bill compensating him or her for their loss.

Under the Federal Tort Claims Act, the federal government acts as a self-insurer, and recognizes liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. The United States is liable to the same extent an individual would be in similar circumstances.

The Federal Tort Claims Act (FTCA) sets forth procedures for presenting and resolving administrative monetary claims for personal injury, property damage, or death arising from the alleged negligence of officers and employees.

The FTCA has several exceptions that categorically bar plaintiffs, victims or claimants from recovering tort damages in certain categories of cases. Federal law also restricts the types and amount of damages a victorious plaintiff may recover in an FTCA suit. Additionally, a plaintiff or claimant may not initiate an FTCA lawsuit unless they have timely followed a series of procedural requirements, such as providing the government an initial opportunity to evaluate the subject claim and decide whether to settle it before the case proceeds to federal court. 

When it comes to making a claim and/or suing the Federal government, or any of its agencies, there is no cap like there is in Florida. But there are other limitations. Again, that situation is governed under the Federal Tort Claims Act (28 U.S.C §2671), and the case or claim must also be brought only following proper written notice. In the administrative phase, a specific document must be filed with the government entitled Form 95.

Once the claimant or plaintiff gets past that administrative procedure, a claimant would file suit in federal court. The United States Attorney’s office defends these cases. One does not get a jury trial, i.e., the case is heard by a federal district judge, who alone decides the case called a bench trial.

There are many examples of Federal Tort Claims Act cases, which can include anything from medical malpractice at military hospitals to Federal Aviation Administration errors that cause plane crashes.

Either way, it pays to avoid situations where the circumstance pits the individual against a governmental hazard.

Federal claims are different than state claims in that if a damage or injury is the result of negligence or legal liability of the federal government or federal agency, the claim is governed by the Federal Tort Claims Act (FTCA).  More specifically, an injured party is required in FTCA cases to file a Form 95 with the governmental entity or agency within two (2) years of the date that legal liability accrued.  This two year statute of limitation or deadline is true regardless of whether there is a state statute of limitation for the same cause of action which may be longer.

Further, with FCTA cases, the governmental entity has up to six months to review the subject Form 95 claim and the claimant is not allowed to file suit during that time.  If the entity does not respond to the claim with an offer or denial within the six month period, then claim is presumed denied when the six month period expires.

Please note that said claimant only have six (6) months to file their lawsuit in a FTCA case after a governmental entity has issued a denial of the claim.  Failure to file suit within six months of being denied results in the claim being completely barred EVEN if it has been less than two (2) years since the event causing the injury!

The FTCA case begins when an injured party “presents their claim” to the agency involved.  The foregoing is accomplished by filing the Form 95.

One must also research specific procedures and rules applicable to the applicable governmental entity or agency in which the claim is sought.  These rules include not only how to bring the claim but also where the Notice should be sent and with whom one should communicate regarding the subject claim.  Many federal agencies will post this information in a section on their respective websites.

Unlike the State of Florida where damages against the state are capped, Federal Tort Claims are not capped.  Therefore, one’s Federal Tort Claim case may have significant value. In the Form 95 itself, there is a blank for the amount of damages that claimant has sustained.  The claimant must put a number, however, one should be careful not to underestimate the value of their claim.  Once a Form 95 is filed with a figure for the damages on it, one cannot increase the amount later claimed.  Consequently, one must be generous in their evaluation.

Attorney fees on FTCA cases are capped at 25% if the case is litigated while attorney fees are only 20% if the case is settled. No fee can be charged for appeals of FTCA cases. Again, the purpose is to remove some financial incentive to sue the federal government; however, it does not make it impossible or not feasible to prosecute.

Further, the FTCA imposes significant substantive limitations on the types of tort lawsuits a plaintiff or victim may permissibly pursue against the United States. The Congress that enacted the FTCA, was concerned about “unwarranted judicial intrusion[s] into areas of governmental operations and policymaking,” and opted to explicitly preserve the United States’ sovereign immunity from more than a dozen categories of claims. More specifically, Section 2680 of the FTCA establishes a number of exceptions preventing private litigants from pursuing certain categories of claims against the United States

It has been debated or at least discussed that certain provisions be enacted to modify the FTCA.  Congress, however, still retains the authority to enact private legislation to compensate individual tort victims who would otherwise be barred from obtaining recourse from the United States under the FTCA in its current form. Congress enacted the FTCA, in part, to eliminate the need to pass private bills to compensate persons injured by the federal government. Congress, though, still keeps some authority to pass private bills if it so desires.  Accordingly, rather than amend the FTCA to expand the number of circumstances in which the United States will be held liable to tort claimants, some scholars and legislators have suggested that Congress should pass individual private bills to compensate particular injured persons or groups of persons who might otherwise lack recourse under the FTCA.  To that end, Congress has occasionally provided some type of compensation to victims, plaintiffs or claimants in situations where the courts have found that the FTCA waiver of immunity provides no relief.

The foregoing is just a general overview of the subject of claims against the Federal government under the Federal Tort Claims Act.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

A Lady Bird deed in Florida is a legal document which transfers property upon death inexpensively and without the need for a probate legal court proceeding. A lady bird deed allows the current property owner to use and control the property during the owner’s lifetime, while the property automatically transfers upon death to designated beneficiaries. The lady bird deed is legal in the state of Florida.

In Florida, a Lady Bird deed is also called an enhanced life estate deed. The Lady Bird deed is a version of a life estate deed with enhancedpowers reserved for the original owner(s) of the property.

There are no Florida statutes specifically authorizing lady bird deeds. However, the general legal consensus is that Lady Bird deeds are authorized under common law, particularly by the Florida Supreme Court in Oglesby vs. Lee, 73 So. 840 (Fla. 1917) and Aetna Ins. Co. vs. La Gasse, 223 So.2d 727 (Fla. 1969).

Florida is one of the few states where a lady bird deed is legal. The states which offer Lady Bird deeds include Florida, Michigan, Texas, Vermont, and West Virginia. Some other states may have what is called a transfer on death deed. Otherwise, property in those states must usually be put into a trust to avoid probate upon the owner’s death or else be held with rights of survivorship.

The foregoing document makes the probate process easier or may avoid it entirely. The Enhanced Life Estate deed (also known as the Lady Bird deed) has inherit powers permitting a property owner to retain control over real property during his/her/their lifetime. Equipped with the power to transfer real property located in Florida to others upon the owner’s death (identified as “remaindermen” within the deed), exclusive of a Last Will & Testament and outside of the probate process, the Lady Bird Deed is an attractive and useful tool to customize even the most complicated estate planning regime. There is no doubt, avoiding probate coupled with a grantor’s advantage to maintain control over the real property, where the grantor can sell, lease, gift or encumber the real property during their lifetime, makes the Enhanced Life Estate/Lady Bird Deeds something to seriously consider by Florida homeowners.

A Lady Bird deed must be recorded to be effective. Once the property owner executes the Lady Bird deed, the deed should be recorded to document the conveyance as part of the property’s legal chain of title. Recording the Lady Bird deed should not involve significant documentary stamp taxes, even if the property is mortgaged.

A property owner can change the beneficiaries under a Lady Bird deed even after the original Lady Bird deed is recorded. The owner must execute and record a second Lady Bird deed that names the new person or people (i.e., remaindermen) whom the owner chooses to inherit the property.

Most major title insurance companies fully understand Lady Bird deeds and are not concerned about insuring the title of a property subject to a Lady Bird deed. Title companies should not require the signature or consent of the people listed as remaindermen (similar to designated beneficiaries) when the Enhanced Life Estate or Lady Bird owner sells the property since the beneficiaries or remaindermen have no vested property interest during the owner’s lifetime.

Some smaller or less experienced title insurance companies may not understand a Lady Bird deed, and these companies may require the remaindermen to sign a release. Even worse, the companies may require any judgment holders against the remaindermen to release any claim of lien against the properties. These requirements stem from a lack of understanding about how Lady Bird deeds work.

A Lady Bird deed allows a property owner to transfer property upon death while avoiding probate. The deed is inexpensive, revocable, and simple compared to a Trust. Again, some of the advantages of Lady Bird deed include:

• Avoids probate. A Lady Bird deed allows a property to transfer on death to named beneficiaries without probate.
• Low cost. A Lady Bird deed can be obtained for a relatively low cost compared to a more complicated and expensive Living Trust.
• Simple. A Lady Bird deed does one thing and does it well: it transfers a person’s real property upon the death of the said property owner.
• Revocable. The property owner is free to change their mind at any point during their lifetime. The property owner can enter into a new deed which gives the remainder interest to someone else or cancels the lady bird deed entirely.
• Gift Taxes. Transferring property by Lady Bird deed does not trigger a gift tax. The transfer is not a completed gift during the lifetime of the property owner.
• Capital Gains. In addition, the beneficiary of the Lady Bird deed should still enjoy a step-up basis in the property. A stepped-up basis means that if the property is eventually sold by the beneficiary/remaindermen, the remainderman will pay income tax only on the appreciation in value from the date when the original property owner died and not when the subject property was originally purchased.
• Medicaid Eligibility. Said deed does not risk the Grantor’s Medicaid eligibility because it is not considered a “transfer” until the Grantor/Owner passes away.
• Property Taxes. The Owner keeps their homestead real estate tax exemption, and the county will not reassess the property to raise taxes.

Some disadvantages to Lady Bird deeds in Florida include:

• Lack of Asset Protection. A creditor of the current owner may place a lien on the property, other than a homestead (i.e., primary residence), conveyed by a Lady Bird deed.
• Constitutional Restrictions. A person cannot use a Lady Bird deed to disinherit a spouse or minor child if homestead real property.
• Unexpected Deaths. If the holder of the remainder interest dies before the life tenant/owner dies, it may become unclear as to what happens to the property when the original life tenant or owner later dies.
• Changes to the Estate Plan. It will require extra work for the original owner to change their plan should they later decide not to leave the property to the named remaindermen.

Despite the disadvantages, individuals and families in Florida often use Lady Bird deeds as a simple, inexpensive way to transfer their home upon death without probate.

The following are a few more benefits relating to Florida’s Enhanced Life Estate/Lady Bird Deed:

1. Individuals will NOT lose their homestead protection. The Enhanced Life Estate Deed or Lady Bird Deed enables a Florida real estate property owner to maintain their homestead and other applicable exemptions (both creditor and tax) if homestead protections apply, even though the grantor holds a type of life estate during their lifetime.
2. It is automatic. For a proper conveyance to take place, special Florida caselaw language must be contained or written within the Lady Bird Deed. Once a properly executed Enhanced Life Estate Deed is executed and the life estate owner dies, the transfer to the named remaindermen is automatic rendering a stress-free process for the named beneficiaries/remaindermen.
3. It is relatively easy. The Florida real property will transfer to the individual (i.e., remainderman) named in the deed upon the death of the grantor/last surviving owner without the need to prepare an added deed to complete the transfer. Moreover, it is an easy transfer process. The beneficiary of the property may have to record the death certificate and file a statement of facts with the appropriate county to affirm ownership but there is no need to prepare additional formal legal documents to complete the transfer.
4. The owner is allowed to change their mind. Equipped with the power to control the subject property, the Lady Bird Deed is so much more than just a life estate. It enables the owner to live in the property for their entire lifetime and also reserves more than just that option. The owner, during their lifetime, reserves the right to sell, lease, gift, and encumber the property without the remaindermen’s consent or notice. If the Florida homeowner is changes their mind, Florida’s Enhanced Life Estate Deed enables the current owner control over the property where the grantor can simply execute another deed to better suit their changes wishes.
5. It is cost effective. The Lady Bird Deed can be used as an inexpensive estate plan for people whose Florida residence is the primary or only asset which may need to be transferred upon death. Where probate is time consuming and can cost thousands of dollars, the Lady Bird Deed is a desirable alternative.
6. The deed can serve as a Last Will & Testament substitute. The owner may name more than one remainderman who will take over the property upon his or her death without ever having to prepare a proper Florida Last Will & Testament. A Lady Bird Deed may also have a provision for descendants of a remainderman or alternate of said beneficiary who predeceases the original owner.
7. Remaindermen also hold creditor protections. The remaindermen receive the property only if the grantor still owns it at the time of death, and since the owner can always change his or her mind prior to death, the remaindermen has no interest in the real property throughout the owner’s life. As such, the remaindermen are protected from creditors during the owner’s lifetime. Since the remaindermen really have no interest in the property until the grantor’s death, the real property is protected during the owner’s lifetime from claims by named remainderman creditors. HOWEVER, Tax liens are different. An IRS lien against a remainderman attaches to the property once the remainderman is named on the lady bird deed.
8. Consent is not needed. The remaindermen have no rights to the Florida real property whatsoever during the owner’s lifetime, which helps because the owner does not need their consent and the remainder’s creditors cannot claim any rights to the real property. This is one of the major differences between a traditional life estate (where consent is needed) and an Enhanced Life Estate or Lady Bird deed where the grantor or current owner maintains complete ownership control.
9. Lady Bird Deeds can be executed remotely. In Florida, deeds must be signed before a notary and two witnesses. As of January 1, 2020, Florida Remote Online Notarization laws allow deeds, such as the Lady Bird or Enhanced Life Estate Deed, to be signed remotely before a notary and two witnesses using video and audio online technology.

A Lady Bird deed or Enhanced Life Estate deed is a useful estate planning tool, however, despite its many benefits, it might not be suitable for all people who own Florida real estate. It is best to discuss the matter with an experienced Florida estate planning attorney.

The foregoing is just a general overview of the subject of Lady Bird Deeds in Florida.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

What is and when is New Year’s Day? The response is a bit more complex than the public might realize. Preliminarily, the definition of a “year” is something to consider. When celebrating the New Year, it is helpful to know exactly which new year you are discussing. Different cultures, countries and ages have measured time in diverse ways, with some basing the year around the sun and others by the moon.

The United States uses the Gregorian calendar based on the solar year. A solar year is the time it takes the Earth to orbit the sun, which is approximately 365 days. Consequently, that means New Year’s Day is celebrated on the first of January of every year. This year it will occur on Sunday, January 1, 2023. According to time and date, the first country to officially enter 2023 was the Republic of Kiribati, an island country in Oceania in the central Pacific Ocean.

The lunar New Year varies and takes some calculating, i.e., one lunar year or 12 full cycles of the moon, is more or less 354 days. Chinese Lunar New Year is the most known and popular season in that genre and starts at sunset on the day of the second new moon following the Winter solstice. Accordingly, the next occurrence of the same is January 22, 2023. Similarly, Islamic New Year, which also observes a lunisolar or lunar calendar is at less fixed points relative to the solar year.

New Year’s Eve, or December 31, is not an officially recognized Federal holiday in the United Sates. Regardless, many people enjoy celebrating the occasion and count it as one of their favorite holidays. It follows that prior to celebrating New Year’s Day, a New Year’s Eve countdown and other festivities throughout the preceding night anticipate the joy and importance of an old year concluding and the promise of a “new” or fresh start. In 2022, New Year’s Eve falls on a Saturday and the First will be on a Sunday. which means if a holiday falls on a Sunday, the following Monday is the legal holiday, i.e., January 2, 2023.

New Year’s Day, January 1, is the first officially recognized Federal holiday on the calendar in the United States. In 1870, the U.S. Congress passed a law that declared New Year’s Day, together with Christmas Day and Independence Day as National holidays.

Celebrating the first day of another year in the world has been an historical tradition for over a millennium. However, New Year’s Day, as most of the world currently celebrates it, on January 1, is a relatively recent invention. In fact, there have been a number of various days selected to mark the beginning of a new year.

The first recorded New Year celebration occurred in Mesopotamia about four thousand years ago. That civilization decided upon the vernal equinox, which is around March 20th, to mark the start of their new year. Thereafter, there are records of other ancient civilizations, including the Egyptians, Persians and Phoenicians, picking the autumnal equinox, i.e., more or less September 20th, to be the start of their new year. The ancient Greeks chose the winter solstice, around December 20th, to commence the new year.

The Roman Emperor, Julius Caesar, who was determined to end all the confusion, established a standardized calendar that would follow the solar year. After consulting with scientific experts, in or about 46 B.C., he introduced the Julian calendar. In that calendar, January 1st was established as the official first day of the New Year. This circumstance coincides with the time of year that the Earth is nearest to the sun. It is also in honor of Janus, pagan god of gateways and beginnings as well as the god of January, known for having two faces, i.e., one face looking forward to the future and one face looking backward to the past.

Finally, in 1582, Pope Gregory XIII slightly corrected the Julian calendar thereby creating the Gregorian calendar, which is the standard most of the world uses today. He reestablished January 1st as New Year’s Day as celebrated in modern times.

The foregoing is just a brief and general overview of New Year’s Day.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Traditionally, the Christmas season celebrates the birth of Jesus Christ, who Christians believe is the son of God. His birth date is unknown since there is little information about his early life. There is disagreement among scholars on when Jesus was born. Christians celebrate Jesus’s birthday on December 25.         

Popular customs include exchanging gifts, decorating Christmas trees, attending church, sharing meals with family and friends and, of course, waiting for Santa Claus to arrive. December 25, i.e., Christmas Day, has been a federal holiday in the United States since 1870.

The first federal holidays were created in 1870 when Congress granted paid time off to federal workers in the District of Columbia for New Year’s Day, Independence Day, Thanksgiving Day, and Christmas Day. President Ulysses S. Grant signed legislation making Christmas a federal holiday in the District of Columbia. That gave federal workers Christmas Day off. The legislation, signed into law on June 28, 1870, also made New Year’s Day and July 4^th federal holidays as well as Thanksgiving, although the date for that holiday had yet to be determined.

Christmas had been celebrated in some states, especially those in the South where it was part of the social calendar. Alabama declared Christmas a legal holiday in 1836 and Louisiana and Arkansas followed in 1838.

In Northern states, there was considerable pushback about a Christmas celebration. The Pilgrims who arrived in New England did not celebrate Christmas. They saw the holiday as a decadent man-made invention. They were not alone. Anabaptists, Quakers, and Puritans also believed celebrating Christmas was sinful.

The perception of Christmas began to change in the mid-19th century. Immigrants brought their customs with them, and publications featuring cartoonist Thomas Nast’s illustrations of Santa Claus and holiday recipes and decorations became more popular.

During the Civil War, Christmas Day was considered a day of peace and rest, not war.

The five gift rules say that a person should give five gifts to their loved ones: one for each of the following categories: something they want, something they need, something to wear, something to read, and a special gift.

Since the holiday, this year, falls on a weekend, the rule is if a holiday falls on a Saturday, the Friday immediately preceding is the legal holiday. If a holiday falls on a Sunday, the following Monday is the legal holiday as it is this year of 2022, i.e., the public holiday of Christmas is Monday, Dec. 26, 2022.

Legally speaking, private employers do not have to give their employees time off on days that are designated as holidays by the federal government. Consequently, federal holidays are not an automatic day off. In fact, businesses are generally not even legally required to offer paid vacation.

Although many states recognize most or all federal holidays as state holidays, the federal government cannot enact laws to compel them to do so. Furthermore, states can recognize other days as state holidays which are not federal holidays.

In 567, the Council of Tours “proclaimed the twelve days from Christmas to Epiphany (traditionally January 6^th) as a sacred and festive season and established the duty of Advent fasting in preparation for the feast.”

Research done by members of the Church of Jesus Christ of Latter-day Saints generally places the birth of Jesus at some point in early to mid-April, whereas theologian, biblical scholar and author Ian Paul had suggested September or late March.

The origins of Christmas stem from both the pagan and Roman cultures. The Romans celebrated two holidays in the month of December. The first was Saturnalia, which was a two-week festival honoring their god of agriculture, Saturn. On December 25th, they celebrated the birth of Mithra, their sun god.

From ancient times, the season which we now know as Christmas was a midwinter celebration called The Winter Solstice, or Yule. The Winter Solstice, a pagan festival, was a time to celebrate the fact that the worst of winter was over, and the people could look forward to longer days with more sunlight approaching. However, by the 4^th A.D., Western Christian churches settled on celebrating Christmas on December 25, which allowed them to incorporate the holiday with Saturnalia and other popular pagan midwinter traditions.

Most religions like Islam, Hinduism, Buddhism, Judaism do not recognize Christmas and Easter as they are ancient Christian festivals so the only religion to celebrate Christmas and Easter is Christianity. Among Christian sects or denominations which do not recognize the holiday include Quakers, Jehovah’s Witnesses, and members of the Churches of Christ. Some of the half-dozen Christian faiths that do no celebrate Dec. 25 contend there is nothing in the Bible that says Christ was born on that day.

The character of Santa Claus is believed to descend from Bishop Nicholas of Myra, who lived in the 3^rd or 4^th century. St. Nicholas was considered a real man. He is said to be the said bishop, living in what is now modern-day Turkey.

The name Santa Claus evolved from Nick’s Dutch nickname, Sinter Klaas, a shortened form of Sint Nikolaas (Dutch for Saint Nicholas). In 1804, John Pintard, a member of the New York Historical Society, distributed woodcuts of St. Nicholas at the society’s annual meeting. Others posit that the modern Santa Claus is a direct descendent of England’s Father Christmas, who was not originally a gift-giver. However, Father Christmas and his other European variations are modern incarnations of old pagan ideas about spirits who traveled the sky in midwinter. However, Dutch families took the tradition of celebrating the feast day of Saint Nicholas with them to New Amsterdam in the American colonies, beginning as early as the 17th century. They referred to him as Sinterklaas. That name became Santa Claus to the English-speaking majority in the early United States.

For atheists, holiday celebrations can range from nonexistent to the full family affair. Some groups have started celebrating “Newtonmas,” named in honor of English scientist Isaac Newton, who was born December 25 by the Julian calendar in use in England at the time.

The American political cartoonist Thomas Nast fashioned Santa Claus’s image on the pages of the American magazine, Harper’s Weekly. In 1862, Santa was a small elflike figure who supported the Union. Nast continued to draw Santa for 30 years, changing the color of his coat from tan to the red he is known to wear today. St Nicholas, who was the historical figure on whom Santa Claus is based was originally seen as wearing red, since that was the color of the religious robes he would have worn for his role as the Bishop of Myra in Turkey. The red suit was first mentioned in 1881 when Thomas Nast illustrated the poem, “Twas the night before Christmas,” authored by Clement Clarke Moore and brought Santa to life. His drawing included all the features from Mr. Moore’s poetic   description but also showed Santa in a bright red suit and carrying a black sack of toys.

SantaClaus.com states that Santa’s birthday is on March 15. When Santa Claus says, “Ho ho ho,” it is actually an expression of deep joy and happiness. The sound one hears is simply Santa laughing, because he is truly a holly jolly happy fellow.

The foregoing is just a brief and general overview of Christmas Day.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.