Author: CSG Firm

January 1, 2022, Laws in Florida

Posted by CSG Firm on

Quite often many laws that are passed by the Florida. legislature and not vetoed but signed by the Governor become effective on July 1, the increase in the minimum wage is in September, however, there are a few that become effective January 1, 2022.

A pair of bills signed this year by Governor Ron DeSantis, involving vehicle rentals and notaries public, become law on January 1, 2022.

In addition, starting at that time, Florida employers will see an average 4.9 % decrease in rates for workers’ compensation insurance. The vehicle-rental measure (SB 566) sets insurance and other requirements for people who take part in peer-to-peer car-sharing programs. In part, the bill requires that, during car-sharing periods, the vehicle owners and rental drivers are insured to at least minimum requirements in state law. It also requires car-sharing programs to oversee the collection and remittance of taxes.

The Senate bill sponsor Keith Perry stated: “We are mirroring what is required by Enterprise or Alamo and the other ones.”

On the other hand, state Senator Gary Farmer, who was among 12 senators and 15 House members who voted against the proposal, questioned whether the measure would provide “appropriate safeguards.”  He stated to the media- “I’m not a rental car company. I’m not going to know, to check the validity of a driver’s license.”  He further stated that “[m]aybe you’ve got a whole history of DUIs out there and I don’t know about it. And now I’m entrusting you with my car. Cars are deemed dangerous instrumentalities under the law of the state of Florida. So, we do a lot of things to protect our residents in general. That’s why we have the rule that a car owner is generally responsible for anybody they let use their car.”

Florida lawmakers passed the bills dealing with vehicle rentals and notaries (HB 121) during the legislative session that ended in April 2021. Most bills passed during the session took effect July 1, which also was the start of the state’s fiscal year.

The notaries bill expands on a 2019 law that authorized remote online notarizations in the state. State Representative Sam Garrison, who sponsored the measure, said during a March Judiciary Committee meeting that the changes are designed to address issues that arose as the coronavirus pandemic increased use of remote notary platforms.

Among the foregoing changes, the law requires platforms to store video of notary sessions, directs the Department of State to include on its website a list of platform providers and allows court reporters to remotely swear in witnesses and newly admitted attorneys via audio-video technology. The law also prohibits platform users’ personal information to be sold.

A third bill (HB 54) that legislators sent to DeSantis with a January 1, 2022, implementation date would have eliminated the state’s no-fault insurance system, and its requirement that motorists carry personal injury protection, or PIP coverage. Ultimately, that bill was among five, which Florida Governor DeSantis vetoed from the 2021 session.

In vetoing the measure, DeSantis explained the no-fault system has flaws and state law involving bad faith litigation, an issue which could lead to costly lawsuits over how insurers handle claims and therefore is “deficient.” Further, DeSantis said the proposal did not “adequately address the current issues facing Florida drivers and may have unintended consequences that would negatively impact both the market and consumers.”

On December 2, 2021, Florida Senate President Wilton Simpson suggested that the no-fault repeal issue could return in the 2022 session, which begins January 11, 2022.

While it was not a result of the legislative session, employers will continue to see decreasing workers’ compensation insurance rates in 2022. Florida Insurance Commissioner DavidAltmaier issued an order in November that set an average 4.9 % decrease, with an effective date of January 1, 2022. This came after an average 6.6 percent decrease that took effect in 2021. Commissioner Altmaier presented a prepared statement in November 2021, to the residents of the state suggesting that “[s]afer workplaces, innovative techniques, and improved risk management practices have resulted in the continued decline in workers’ compensation claims, ultimately benefiting Florida businesses,”

The foregoing is merely a summary of changes regarding relevant Florida laws for the new year. Please call the attorneys at the law firm of CASERTA & SPIRITI if you have any questions about any of these topics.

New Year’s Holiday & the Law in Florida

Posted by CSG Firm on

New Year’s is rapidly approaching. As we celebrate this holiday season, there are a few matters to keep in mind that do not mix: drinking, driving, fireworks, and firearms.

Annually, the news media presents stories of celebratory gunfire. We often hear of people firing their guns off in the air to celebrate the New Year. It is best not to do this. This activity is very dangerous and can result in either serious bodily injury or death and potentially land you in jail. Florida law criminalizes the reckless handling of a firearm, and many counties and cities have local laws that make it illegal to willfully discharge a firearm within their jurisdiction, subject to certain exceptions like self-defense.

Firearm safety should always be strictly observed. One should never display or discharge a firearm in a reckless or unsafe manner.

Additionally, local governments and law enforcement yearly remind their residents not to fire celebratory gunfire because it is both illegal as well as dangerous.

In fact, in Miami, for more than 20 years, the city has found it necessary to issue New Year’s Eve warnings. In a news conference last year, the mayor of Miami, Francis Suarez, urged city residents not to shoot their guns just hours before celebratory shooting occurred in various cities across Florida.

In Miami alone, there have been a number of New Year’s Eves when people have been wounded or killed by celebratory gunfire since 2007. 

Celebratory gunfire, as it is called, has wounded, and killed dozens in recent years throughout the U.S. alone.  Deaths and injuries have ben reported and investigated annually when individuals are struck as well as killed by gun shots dropping to the ground.  Most bullets, fortunately, land harmlessly to the ground or lodge in roofs and other property.  However, in densely populated areas, bullets can hit people.  Such falling bullets can strike a victim’s head, shoulders or feet and can ultimately cause serious bodily harm.

Celebrating with fireworks can also cause harm.  Certain fireworks are legal in Florida, according to state law, however, cities have the authority to ban fireworks.

In April 2020, Gov. Ron DeSantis signed a bill that legalized fireworks in Florida on three (3) holidays every year. The full use of fireworks in Florida is now legal on Independence Day on July 4, New Year’s Eve on December 31, and New Year’s Day on January 1. Sparklers, noisemakers, and the like are legal all year

Despite the state law, fireworks could still be banned in your local city or county. It is best to check prior to engaging in that type of activity.

But as Florida residents ring in the New Year with fireworks, they should keep in mind that last New Year’s Eve alone, government statistics show approximately 10,000 people went to the emergency room for firework-related injuries. Of those statistics, children younger than 15 made up for 36% of those injuries.

Now, New Year’s Eve and alcohol, it goes without saying that operating a motor vehicle while intoxicated is a criminal offense. Similarly, carrying a concealed handgun with a concealed handgun permit while intoxicated is also a crime.

With New Year’s Eve approaching, and even though the pandemic has changed many plans, some are still planning to ring in 2022 with a “bang”! The top concern for many is the continued risk of encountering a drunk driver during or after New Year’s celebrations. Many have advocated for people to make plans for a designated driver before heading out to celebrate. There may still be rider-assist programs that like AAA’s “Tow to Go” program, as in the past, that you may call a driver to take you home, or you can call and take an Uber or Lyft.  Even though this has been a difficult year due to the continued pandemic, people can still count on fireworks and having a drink to bid 2021 farewell. Law enforcement experts have stated that many people get arrested due to drinking and driving while celebrating the holidays. Consequently, don’t begin 2022 making the year more challenging for yourself by getting behind the wheel of a car after you drink, and get your first DUI.

If a person does too much celebrating over the holidays, they should be careful. Unfortunately, accidents do happen, and in some instances, people are injured. Whether by fireworks or some other accident, common questions asked include, what happens if I see someone who needs medical assistance? Can I be held civilly liable if I accidentally injure them while rendering aid? While a person in Florida is not typically required to perform first aid, state law protects them when administering emergency or life-saving treatment to someone in need. This protection is commonly called the “Good Samaritan Law.”

Under the Florida Good Samaritan Act: “Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment… shall not be held liable for any civil damages as a result of such care or treatment.”  Whether it is a firework mishap, car accident, or some other type of injury, the Good Samaritan Law states that a person will not be civilly liable while they are administering emergency care in good faith, reasonably and without compensation.

We wish you and your family a Happy Holiday Season. If you should have any questions or would like additional details regarding these topics or any others, please contact the attorneys at the law firm of CASERTA & SPIRITI.

In Florida-Who Has the Right of Way?

Posted by CSG Firm on

In Florida, who has the right of way?  The answer is no one!  Florida has no law explicitly granting the right of way.  The law only says who must yield (give up) the right-of-way.  Every driver, motorcyclist, moped rider, bicyclist, and pedestrian must do everything possible to avoid a crash.  The goal is to always encourage defensive driving.

For example, Florida Statute 316.121 states in pertinent part that “the driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.”  Also, “when two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.”   There are other examples.  Again, note how the law only indicates the person who must yield.

Pursuant to Florida Statute 316.122, “The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction, or vehicles lawfully passing on the left of the turning vehicle, which is within the intersection or so close thereto as to constitute an immediate hazard.” 

Another example is Florida Statute 316.123, which relates to vehicles entering stop or yield intersections. “After having stopped, the driver shall yield the right-of-way to any vehicle which has entered the intersection from another highway, or which is approaching so closely on said highway as to constitute an immediate hazard…”  Also, “at a four-way stop intersection, the driver of the first vehicle to stop at the intersection shall be the first to proceed.  If two or more vehicles reach the four-way stop intersection at the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.”  Further,” the driver of a vehicle approaching a yield sign shall, in obedience to such sign, slow down to a speed reasonable for the existing conditions.”  Again, there are other examples.  Please read the full statute and the Official Florida Driver License Handbook.

According to Florida Statute 316.125, “The driver of a vehicle about to enter or cross a highway from an alley, building, private road or driveway shall yield the right-of-way to all vehicles approaching on the highway to be entered which are so close thereto as to constitute an immediate hazard.”  And, “The driver of a vehicle emerging from an alley, building, private road or driveway within a business or residence district shall stop the vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across the alley, building entrance, road or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon and shall yield to all vehicles and pedestrians which are so close thereto as to constitute an immediate hazard.”

In line with Florida Statute 316.126, if an emergency vehicle (police car, ambulance, fire truck, etc.) is approaching with sirens or lights on, you must get out of the way.  Motor vehicles, bicycles, and pedestrians all must yield the right of way to emergency vehicles.  One should pull their vehicle over to the nearest curb and wait there until the emergency vehicle has passed. If someone is passing a stopped emergency vehicle, they must move over so that there is an empty lane between their motor vehicle and the emergency vehicles or reduce their speed to 20 mph below the speed limit. Furthermore, emergency vehicle drivers are subject to traffic infractions as everyone else and must drive safely.

Consequently, remember, the operative word is “yield” when you are in a situation where you are unclear about right of way.  Patience and defensive driving are always the correct answer.

REAL PROPERTY OWNERSHIP & INJURY LIABILITY IN FLORIDA

Posted by CSG Firm on

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

Posted by CSG Firm on

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

Posted by CSG Firm on

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

Posted by CSG Firm on

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?

Posted by CSG Firm on

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

Posted by CSG Firm on

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

Posted by CSG Firm on

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.