Frequently asked questions

Q. What is "no fault" motor vehicle insurance?

A. Since 1972 Florida has operated under an automobile insurance system which protects individuals from tort liability (civil suits) unless certain "threshold" injuries are sustained. "Threshold" injuries are defined as those which result in significant and permanent loss of a bodily function; a permanent injury within a reasonable degree of medical probability; significant and permanent scarring or disfigurement; or death. If you do not sustain these types of injuries, your right to bring suit is limited.

In exchange for loss of the right to bring non-threshold suits, automobile insurance coverage in Florida provides for personal injury protection (PIP) benefits. Generally, these benefits allow individuals to recover economic losses, including up to 80% of medical bills, 60% of lost wages, and funeral expenses from their own automobile insurance carrier whether or not they were "at fault" for the accident. An individual may choose to purchase additional PIP coverage beyond the $10,000 statutory limit to as high as $100,000, which will also increase the percentage of economic losses which may be recovered.

Q. If I slip, trip or fall on someone else's property are they responsible?

A. Whether the owner or occupant of property is responsible for injuries or death on or near his property depends upon whether there was a defective condition on the premises. If the owner or occupant knew of a dangerous condition that was not readily apparent to others, he could be held responsible if he did not warn of the danger. Ordinarily, a property owner or occupant owes a duty of reasonable care to maintain the premises in a reasonably safe condition. This includes a duty to keep the premises free from foreign objects or substances that might foreseeably cause injury, loss or damage, and to maintain, inspect and keep the property in reasonable repair.

If you are injured on business property notify management before you leave the property. Take photographs of the area if possible. Determine what caused you to fall. If you are injured, request that the company call EMS, if necessary. Seek medical attention immediately to document your injuries.

Q. Should I purchase underinsured motorist coverage?

A. It is highly advisable to purchase underinsured motorist coverage. Every insured in Florida must be given the opportunity to purchase or reject this coverage. Unfortunately, many insureds are not aware of its benefit and reject it to save a few premium dollars.

The purpose of underinsured motorist coverage is to protect yourself in the event that an uninsured or underinsured driver causes injury to you. Since bodily injury coverage is not mandatory in Florida, many drivers have no means to compensate you should they cause you injury. If you purchase bodily injury liability coverage to pay for injuries that you may cause to others, you have the right to purchase underinsured coverage up to the same limits to pay for injuries that others may cause to you, in the event they are uninsured or underinsured. Why wouldn't you want to protect yourself to the same degree that you protect others? Additionally, you may be able to "stack" this coverage, i.e. if you have underinsured coverage on more than one vehicle, you may combine those limits for your benefit, however, you must specifically elect to purchase underinsured coverage and elect to purchase stacked coverage.

Q. Are there special considerations when an accident involves a large commercial truck?

A. Some of the most serious and fatal accidents in the United States involve large trucks (those with gross vehicle weight rating greater than 10,000 pounds). Commercial trucking companies are required to comply with the Federal Motor Carrier Safety Regulations which set equipment standards and rules regarding a driver's hours of service. In Florida, the Department of Transportation has adopted additional rules that strictly limit the number of hours a driver can be behind the wheel of a large truck. A person who drives a commercial motor vehicle solely in intrastate commerce, not transporting any hazardous material, may not generally work more than 72 hours in any consecutive 7 day period. However, hours of service regulations are often violated. Trucking companies are only required to maintain hours of service records for 6 months, so it is important to investigate these claims early.

Q. What should I do to ensure that construction work on my home is completed properly?

A. First, require that the agreement with your contractor is set forth in writing and signed by the contractor. Your written contract should describe in detail the work to be completed so that there is no misunderstanding as to the scope of work. Second, confirm that your contractor is licensed and insured before work begins. The Florida Department of Business and Professional Regulation maintains a complete record of licensed contractors and any complaints made against the license holder throughout the state. Third, document any issues that arise during the project and your efforts to resolve those issues so that you are prepared for a potential dispute with the contractor.

Q. If a drunk driver causes an accident but has no insurance or assets, what should I do?

A. Innocent people who are injured or killed by drunk drivers deserve to have their claims aggressively pursued. Even if the drunk driver has no means by which to pay the damages he caused, our office will zealously investigate any potential claim against the bar, liquor store or restaurant that sold the alcoholic beverages. Florida law imposes liability on the sellers of alcoholic beverages who sell to persons under the legal drinking age, or those who are intoxicated. However, to impose liability because the customer was intoxicated, the bar, liquor store or restaurant must have notice that the person is a habitual drunkard. This requirement does not apply when minors are involved and the bar, liquor store or restaurant may be responsible for any damages caused by a person under 21 years of age to whom they sold alcohol.

Q. I signed a contract to purchase a condominium unit. Given the current real estate market, I can no longer afford to close. Am I entitled to a refund of my deposit?

A. We strongly recommend having an attorney review your contract before communicating with the builder about your inability to close. Ordinarily, a builder is entitled to retain the deposit in the event a buyer defaults under the contract. However, a buyer may be entitled to a refund of the deposit under certain circumstances. For example, a buyer may have a legal right to cancel the contract upon a material change to the governing documents of the condominium that adversely affects that buyer. Also, under most circumstances, the failure of the builder to construct the condominium unit within two years of the execution of the contract constitutes a default by the builder, which would allow a buyer to seek a return of the deposit. It is worth exploring these options with an attorney prior to taking any action in reference to the contract.

Q. My 17 year old child caused a serious motor vehicle accident. Can I be held responsible?

A. Yes. In Florida any person under the age of 18 years who applies for a driver's license must have the application signed by their father, mother or legal guardian. Any negligence or willful misconduct of the minor when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application for a permit or license. Florida law requires that the father, mother or legal guardian who signed the application shall be jointly and severally liable with such minor for any damages caused by such negligence or willful misconduct.

You should consider this potential exposure when you select insurance coverage limits.

Q. Can I cancel a contract made with a door to door salesman?

A. Yes. A home solicitation sale of consumer goods or services with a purchase price in excess of $25.00 may be cancelled through midnight of the third business day after the day on which the buyer signed an agreement or offer to purchase. The buyer must given written notice of the cancellation in person, by telegram, or by mail to the seller at the address stated in the agreement or offer to purchase. This three day right to cancel does not apply to the sale of insurance or farm equipment or machinery.

Within ten days after cancellation of a home solicitation sale, the seller must return any payments made by the buyer along with any note or other evidence of indebtedness. If there was a trade-in, such goods must be returned to the buyer in substantially the same condition as when received by the seller. Any goods delivered by the seller to the buyer must also be tendered by the buyer, but the buyer is not obligated to tender at any place other than his residence. If the seller fails to demand possession of the goods within 40 days after cancellation, the goods become the property of the buyer without obligation to pay for them.

Q. Can I be compensated if I am injured in a boating accident?

A. Marine casualties involving death or personal injuries are subject to some special rules, including federal statutes. Liability is based upon the fault of the parties. Fault can arise out of negligence in the operation of the boat, violation of statutory rules, or because of a failure to comply with established customs of navigation. The majority of navigational rules deal with rules on steering and sailing (the so called "Rules of the Road"), rules on lights and shapes, and rules on the use of sound and light signals.

Because weather and other changing conditions may affect liability, it is very important that boating accidents be investigated as soon as possible after the incident.

Q. If I am hurt at work as a result of someone else's negligence, can I sue the person responsible for my injuries?

A. Maybe. If you are covered by workers' compensation, then your recovery is generally limited to workers' compensation benefits, i.e., lost wages and medical bills. However, if the person causing your injuries is not affiliated with your employer, (e.g., you drive a delivery truck that is struck by a speeding vehicle) then you may be able to pursue a claim for tort damages against that person or entity for pain, suffering, mental anguish, disfigurement, etc., even though you receive workers' compensation benefits. Be aware, though, that any such recovery will be subject to the workers' compensation carrier's subrogation lien. This means that you may have to reimburse the carrier from your tort recovery for benefits paid by the carrier.

Q. Are motorcyclists in Florida required to wear helmets?

A. The general rule is that a person may not operate or ride on a motorcycle unless the person is wearing a helmet securely fastened and the person is wearing an eye protective device. However, this statutory requirement does not apply to persons riding within an enclosed cab, or to any person 16 years of age or older who is operating or riding on a motorcycle powered by a motor that is not capable of exceeding 30 miles per hour. Further, a person over 21 years of age may operate or ride a motorcycle without wearing a helmet if such person is covered by an insurance policy providing for at least $10,000 in medical benefits for injuries received as a result of a crash while riding or operating a motorcycle.

Q. How can failure to wear a seat belt affect a Plaintiff's personal injury award?

A. Florida Statute § 316.614 requires that every driver and front seat passenger in a motor vehicle be restrained by a safety belt.

When a jury is considering whether an auto accident Plaintiff was negligent in failing to use a seat belt, a jury will be instructed that failure to wear an available and functioning seat belt can be considered as evidence of comparative negligence, along with any other factors that may indicate that the Plaintiff was partially responsible for either causing the accident, and/or his or her injuries.

The Court must inform the jury that violation of the Florida seat belt statute, mandating seat belt usage, constitutes potential evidence of negligence.

The Defendant has the burden to present evidence establishing a causal relationship between the alleged failure to wear the seat belt, and the Plaintiff's injuries.

By way of example, if a jury should award $100,000.00 in damages to the Plaintiff, but finds that the Plaintiff was fifty (50%) percent comparatively negligent for failure to wear his seat belt, the award would be reduced to one of $50,000.00. Yet another compelling reason to always buckle-up.

Q. What is a Premarital Agreement?

A. A Premarital Agreement is a contract that is entered into between two prospective spouses in anticipation of marriage. Even with a Premarital Agreement, marriage is not without risk. Courts have viewed Premarital Agreements with much more scrutiny than other contracts because of the nature of the emotional relationship between the parties. In the past, Courts have set aside Premarital Agreements and refused to enforce them. The only sure way to avoid the potential for this risk is not to get married.

On October 1, 2007, Florida enacted the Uniform Premarital Agreement Act to help create certainty and uniformity in the content and enforcement of Premarital Agreements. It requires fair and reasonable disclosure of the property and financial obligations of each party, and addresses issues of equitable distribution and alimony in the event of dissolution of marriage.

It is crucial for a prospective spouse to obtain competent legal advice in the negotiation and drafting of a valid Premarital Agreement, as it could result it significant savings in the event the agreement is later challenged in dissolution of marriage proceedings.

Q. What is a Spinal Cord Injury?

A. A spinal cord injury (SCI) is damage to the spinal cord that results in a loss of function. Loss of movement and sensation in the lower body is described as paraplegia and affects about 43% of the SCI population. Loss of movement and sensation in both the arms and legs is described as quadriplegia and affects about 57% of the SCI population. There are between 250,000 and 400,000 Americans living with these types of injuries.

Vehicular accidents are the leading cause of all spinal cord injuries, followed by falls, acts of violence and sporting injuries.

Because treatment for these injuries is very costly, it is important that all potential areas of recovery be explored. We will take steps to promptly preserve evidence, review the medical procedures and obtain experts to evaluate the accident circumstances and injuries.

Q. If I am injured in an automobile accident but am issued a citation by the officer who investigates the accident, do I have a claim against the other driver?

A. Yes, if a jury decides the other party was at fault for the accident. The officer's determination of fault for the accident does not control the issue of legal responsibility for injuries resulting from a car accident. In fact, neither the issuance of the citation nor the officer's opinion as to fault is admissible in a civil action for personal injury damages. Rather, the jury must arrive at its own conclusion based upon the circumstances of the accident and the testimony of the drivers and witnesses involved. Therefore, if you prove to the jury that the other driver was at fault, you can recover damages for your injuries even if the officer issued you the citation following the accident.

Q. What is a whiplash injury and how is it caused?

A. Whiplash refers to neck pain following an injury to the soft tissues of your neck. It may involve injury to discs, muscles, ligaments, tendons or nerve roots and may be called a neck sprain or neck strain. Symptoms may be felt immediately after an injury, or it may take several days or longer for symptoms to develop.

Whiplash is caused most often by motor vehicle accidents, but can also be the result of a sporting injury, accidental fall or assault. The mechanism of injury is usually a sudden extension (backward movement of the neck) and flexion (forward movement of the neck).

If you have been injured and are experiencing any of the symptoms described, you should consult with a physician. New imaging devices can show soft tissue injury. Research has shown that the sooner treatment is started the more effective it will be.

Q. Does you car have a black box?

A. Most people are aware that airplanes have "black boxes" that record crash data, but did you know that your motor vehicle may also have a black box? According to the National Highway Traffic Safety Administration all passenger cars beginning with the 2002 model year, including vans, SUVs, and lightweight vehicles have some recording device. Although devices in different model cars may record different information, recorders are capable of documenting a vehicle's speed, change in velocity, number of occupants, if seatbelts are used, airbag deployment, state of the brakes before and during a crash, geographic location, direction of travel, date and time of crash. These devices may serve as unbeknownst witnesses to an accident.

Contacting an attorney soon after a motor vehicle accident may allow preservation of information recorded by your vehicle or by the other vehicle involved, before totaled vehicles are destroyed.

Q. Does Florida have any law which restricts cell phone use while driving?

A. No. Only California, Connecticut, New Jersey, New York, Washington State and the District of Columbia have enacted cell phone laws prohibiting driving while talking on handheld cell phones. Seventeen states and the District of Columbia have special cell phone driving laws for novice drivers, but Florida is not among them.

High tech devices, such as cell phones, GPS systems, video players and MP3 players are commonly used by people operating motor vehicles in Florida. Drivers may have one hand on the wheel while the other hand is sending a text message, dialing a telephone number, taking a photograph, entering an address into a GPS system, adjusting a satellite radio, scrolling through the pages of an MP3 player, or sending an e-mail.

Such distractions have contributed significantly to motor vehicle accidents. Some national studies have shown that an average driver trying to text message takes his eyes off the road at least 14 times every 30 seconds to look at the screen or keypad. Additional studies have shown that drivers using a cell phone are four times as likely to get into an accident as someone who was not; a person sending a text message was six times as likely.

Q. What is a negligent security case?

A. Property owners, including the owners of businesses, homes, shopping malls, parking lots, apartments, motels and other buildings, have a legal duty to provide a safe environment for persons who come onto their property. In certain situations, e.g. in high crime areas or areas where there have been repeated incidents, a property owner may have a duty to provide adequate security, security patrols, security hardware on doors and windows, proper lighting or other means to protect against foreseeable harm. Inadequate security can result in assault, battery, robbery, sexual assault and homicide.

If you have been injured due to inadequate security, you should promptly report the incident to the police. If you were raped or sexually assaulted, request immediate medical treatment to document your injury.

Q. Is it true that my monetary recovery for personal injuries will be limited to $100,000 if I pursue a claim against the County for the negligence of the driver of a County owned truck?

A. You are correct. Tort damages recoverable from the state or any of its agencies or political subdivisions (e.g., counties and cities) are limited by statute (Florida Statute 768.28) to $100,000 for any one person and $200,000 for all persons injured in the same accident. These limitations apply to both economic (lost wages and medical bills) and non-economic (pain, suffering, deformity, mental anguish, inconvenience, etc.) damages.

Florida law does provide that an injured party whose damages far exceed the $100,000 limit may seek additional redress by having a Claims Bill filed in the legislature. This mechanism for additional recovery is cumbersome, difficult, infrequently used and usually subject to the political winds flowing at the time.

Q. I've heard the phrase "dangerous instrumentalities or activities. What does that mean?

A. When a person is dealing with a dangerous instrument or activity, they are required to use a greater degree of care and vigilance than in the ordinary activities of daily living that involve little or no risk of injury to persons or property. In Florida, this duty also applies to the owner of the instrumentality for misuse by anyone operating it with the owner's knowledge and consent. The most common example of an owner's vicarious liability for the use of a dangerous instrumentality would be the situation in which you lend your automobile (a dangerous instrumentality) to another. In such situations, the dangerous instrumentality doctrine imposes strict vicarious liability upon the owner of the motor vehicle who voluntarily entrusts his car to an individual whose negligent operation causes injury to another.

Other examples of dangerous instrumentalities include airplanes, large forklifts, cranes at construction sites, firearms and even golf carts. Certain activities are considered inherently dangerous, such as clearing of land by fire and may, therefore, impose liability on the person who hires an independent contractor to perform the work which results in damage from the fire.

Q. Is a release form signed by a parent for summer camp or sporting programs valid to protect the camp or program from liability for injury to a child?

A. Generally speaking, releases (whether involving adults or children) are enforceable provided that the contract is between persons of equal bargaining power and the provisions are clear and unambiguous. A releasee cannot avoid liability for his own subsequent negligence unless the release clearly and specifically provides for a limitation on liability for the releasee's own subsequent negligence. Even then, the release must be read as a whole because any other provision, e.g., providing that the entity would take reasonable precautions to assure safety and health may render the portions limiting liability as meaningless. In no case does a release protect against claims of willful, malicious, or grossly negligent conduct.

Q. What is a domestic violence injunction?

A. Florida law presently provides for four types of orders of protection against violence, commonly known as "restraining orders" or "injunctions". These orders are available to protect a person from domestic, repeat, dating, and sexual violence.

"Domestic violence" is defined by Florida Statute as "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family household member by another".

When a temporary injunction against domestic violence is issued by a Judge, a full evidentiary hearing must be scheduled within 15 days. At the hearing, the person applying for the injunction must prove domestic violence has occurred, or that he or she has a reasonable fear that domestic violence is imminent. The Court may then issue a Final Judgment of protection against violence, commonly known as a "permanent injunction".

It is unlawful for a person who has a permanent injunction against him or her to possess a firearm and/or ammunition. Violation of a permanent injunction is a crime, and could result in criminal sanctions and deportation, if the person is not a U.S. citizen.

Q. If I file a lawsuit and prevail, does the losing party have to pay my attorneys' fees?

A. The general rule, commonly referred to as the American Rule, is that each party in a lawsuit bears his own attorneys' fees regardless of which side prevails. This rule may be modified by contract or by statute to provide that the prevailing party is entitled to recover his attorneys' fees. For example, Chapter 627, Florida Statutes, provides an insured the right to collect his attorneys' fees from his own insurance company for wrongfully terminating PIP benefits following a motor vehicle accident. However, absent such a statute or contract, the American Rule controls, and a prevailing party may not collects his attorneys' fees from the losing party.

Q. I defaulted on my mortgage payments. What are the consequences of a foreclosure and what alternatives may be available?

A. The foreclosure rate in southwest Florida has skyrocketed as of late. If you have defaulted on your mortgage payments, there are some important things to keep in mind. In filing a lawsuit to foreclose on the mortgage, the bank may also seek a deficiency judgment against you for the difference between the outstanding balance due under the mortgage and the amount that the property is sold for at the foreclosure sale. Therefore, in addition to losing your home and damaging your credit, you may also have a money judgment entered against you in the event the bank forecloses. As a result, it is critical to explore potential alternatives to foreclosure, including executing a deed in lieu of foreclosure, attempting a short sale of the property, or filing a petition for bankruptcy.

Q. I've heard the phrase "dangerous instrumentalities" or activities. What does that mean?

A. When a person is dealing with a dangerous instrument or activity, they are required to use a greater degree of care and vigilance than in the ordinary activities of daily living that involve little or no risk of injury to persons or property. In Florida, this duty also applies to the owner of the instrumentality for misuse by anyone operating it with the owner's knowledge and consent. The most common example of an owner's vicarious liability for the use of a dangerous instrumentality would be the situation in which you lend your automobile (a dangerous instrumentality) to another. In such situations, the dangerous instrumentality doctrine imposes strict vicarious liability upon the owner of the motor vehicle who voluntarily entrusts his car to an individual whose negligent operation causes injury to another.

Other examples of dangerous instrumentalities include airplanes, large forklifts, cranes at construction sites, firearms and even golf carts. Certain activities are considered inherently dangerous, such as clearing of land by fire and may, therefore, impose liability on the person who hires an independent contractor to perform the work which results in damage from the fire.

Q. Will motorcycle drivers involved in an accident be covered by their automobile insurance?

A. Unfortunately, in Florida motorcycle owners and passengers are not required to carry insurance and the personal injury protection (PIP) coverage a person may have on their automobile is not available to pay for injuries or wages as the result of a motorcycle accident. Some insurance companies offer special PIP for motorcycles and this is a good way to at least partially protect motorcycle owners. Oftentimes the negligent driver does not have sufficient bodily injury liability coverage to pay for significant medical bills and treatment resulting from a motorcycle accident.

In that case, motorcycle owners can protect themselves further by having UM (underinsured) motorist coverage. UM coverage from your automobile may be available to a motorcycle owner if he elected stacking UM coverage on his automobile. Therefore, if you own a motorcycle, do not waive stacking UM coverage on your automobiles - the difference in premium provides significant additional coverage.

Q. Will Florida's PIP/No-Fault law end in October 2007?

A. The legislature did not take any action this session to extend Florida's PIP (personal injury protection) law which is scheduled to end in October 2007. It also appears that PIP will not be addressed in a special session of the legislature and will, therefore, "sunset" in October 2007.

Under current law, Florida drivers must buy $10,000 in PIP auto insurance, which pays up to 80% of medical expenses and up to 60% of lost wages in the event of injury, or up to $5000 in death benefits in the event of a fatality.

Approximately 20% of Floridians have no health insurance and PIP coverage is the sole source of medical compensation when they are injured in a motor vehicle accident. Without an adequate replacement for PIP many drivers will be unable to receive quality health care. A further problem is that local hospitals will have no viable means to collect for treatment rendered to motor vehicle victims in emergency or other situations.

Q. My son was recently injured at a commercial skate park due to the owner's employee's carelessness. Can I sue the owner even though I signed a paper saying that we would not sue to recover damages in the event my son was injured?

A. You signed an agreement containing an "Exculpatory Clause", meaning that the owner was relieved from liability even if the owner was careless. Be advised, however, the appellate courts in Florida have held that such agreements are unenforceable to the extent that they would relieve a commercial owner from liability for injuries caused to a minor. Such agreements are deemed to be contrary to the public policy of this state which recognizes that children tend to engage in risky activities, but are in no position to protect themselves through insurance and other means as are adults. Therefore, the agreements are unenforceable as to children, but not as to adults who presumably will take measures to protect themselves.

Q. If I am in a car accident, what information should I obtain at the scene?

A. It is important to gather as much information as possible. Ideally, you should obtain the other driver's name, address, telephone number, driver's license and vehicle registration numbers and insurance company. You should record the other car's make, model and license plat. If the driver of the other car does not own that vehicle, obtain the owner's information also. If there are passengers in the other car, or witnesses to the accident, ask for their names, addresses and telephone numbers. Write down the name and badge number of the police officer who comes to the scene. If you have a camera with you, or cell phone that takes pictures, photograph the position of vehicles before they are moved, the extent of damage to the vehicles, skid marks, street lights, traffic signs, crosswalks or other conditions that may be important.

Q. If I am in a car accident, do I need to contact a lawyer?

A. If you are injured in a car accident, it is a good idea to contact an attorney. You will, undoubtedly, be contacted early on by an insurance adjuster from your own insurer and probably an adjuster from the other vehicle's insurer. The adjuster will be acting in the company's interest. Adjusters may be seeking to establish if you were at fault in the accident, or, if the other driver's liability is clear, to make you an offer. The adjuster may suggest that a lawyer is not needed, or that hiring a lawyer may reduce the amount you receive or prolong the resolution of the claim. This is not necessarily true. Talking to an experienced personal injury lawyer ensures that your claim is fairly evaluated by someone looking to protect your interest. Most lawyers do not charge for an initial consultation, so if the insurance company make an offer that is fair, you will have the peace of mind of a professional evaluation before accepting the offer.

Q. Do uninsured motorist benefits cover me in the event that I am in an accident while riding my motorcycle?

A. Yes. Uninsured motorist benefits are available to cover losses resulting from an automobile accident in which the at-fault driver has no liability coverage or insufficient liability coverage. Generally, the insurance policy on your car does not extend to accidents in which you are riding on a motorcycle. However, if you have elected the "stacking" type of uninsured motorist coverage then the general rule does not apply. If you have elected "stacking" uninsured motorist benefits for your car, then you receive the benefit of those uninsured motorist benefits even if your motorcycle is not listed as a covered automobile on the policy for your car. Therefore, if you do own and regularly drive a motorcycle, it would be wise to discuss "stacking" uninsured motorist coverage with your insurance agent.

Q. What is a wrongful death claim?

A. A wrongful death claim alleges that a person died as a result of the negligence, wrongful act or breach of contract of another person. The legislature of Florida has recognized a public policy that shifts the losses resulting from wrongful death from the survivors of the decedent to the wrongdoer. An action may be brought on behalf of the spouse, children or parents of the decedent and, in certain circumstances, by other blood relatives or adoptive brothers or sisters. The damages which can be recovered by the survivors are for their own personal losses, such as for pain and suffering and loss of companionship, guidance, services and support. A survivor who has paid for medical or funeral expenses caused by the decedent's injury or death may recover those also.

Q. I feel that I am being harassed by a creditor. Is there anything that I can do?

A. If the creditor is attempting to collect a "consumer debt," which is defined as a debt arising from a transaction primarily for personal, family, or household purposes, you may have recourse. Section 559.72, Florida Statutes, prohibits creditors from engaging in certain conduct, including but not limited to, calling your employer prior to obtaining a final judgment, calling you or your family with such frequency as can reasonably be expected to constitute harassment, and calling you after 9:00 p.m. Many other violations are set forth in the statute. If a creditor has engaged in such misconduct, you have the right to file a civil action in order to seek the recovery of actual damages, statutory damages of up to $1,000.00, and all courts costs and attorneys' fees incurred.

Q. Do dogs get one free bite?

A. No, in Florida the owners of dogs are responsible for any damage done by their dogs to people, domestic animals or livestock. It does not matter if the owner knows, or does not know, about the vicious propensities of his pet, or whether the owner was negligent in keeping the dog or allowing it to run free. Owners are absolutely liable.

A landlord could also be responsible for damage done by a tenant's dog if the landlord knew, or should have known, that a vicious dog was being kept on the premises and the landlord had the ability to control the dog's presence.

If injury is as a result of an actual dog bite, the owner may not be liable (except for children under 6 years or if the owner caused the injury by his own negligent act) if, at the time of the dog bite, the owner had displayed in a prominent place on his property, a sign easily readable, including the words "bad dog".

Q. How can failure to wear a seat belt affect a Plaintiff's personal injury award?

A. Florida Statute § 316.614 requires that every driver and front seat passenger in a motor vehicle be restrained by a safety belt.

When a jury is considering whether an auto accident Plaintiff was negligent in failing to use a seat belt, a jury will be instructed that failure to wear an available and functioning seat belt can be considered as evidence of comparative negligence, along with any other factors that may indicate that the Plaintiff was partially responsible for either causing the accident, and/or his or her injuries.

The Court must inform the jury that violation of the Florida seat belt statute, mandating seat belt usage, constitutes potential evidence of negligence.

The Defendant has the burden to present evidence establishing a causal relationship between the alleged failure to wear the seat belt, and the Plaintiff's injuries.

By way of example, if a jury should award $100,000.00 in damages to the Plaintiff, but finds that the Plaintiff was fifty (50%) percent comparatively negligent for failure to wear his seat belt, the award would be reduced to one of $50,000.00. Yet another compelling reason to always buckle-up.

Q. What causes SUV rollover accidents?

A. Sport utility vehicles were originally introduced to the market as a safer alternative to passenger vehicles because of their larger size and height. Statistics from the National Highway Traffic Safety Administration, however, show that SUVs roll over almost three times as often as passenger sedans. The most common type of SUV rollover accident involves a single vehicle, underscoring the fact that the defective design of some SUVs make them prone to tip over even without an impact from another vehicle.

Many SUVs are designed with dangerously high centers of gravity, making them more likely to flip over, throwing occupants around and sometimes out of the vehicle. If a vehicle manufacturer has failed to install basic roof crush protections like roll bars and roof supports, the roof of the vehicle can crush during a rollover accident, causing preventable injuries and deaths.

We at Wilkins Frohlich, P.A. think that negligent manufacturers of vehicles should be held responsible. We will investigate the cause of a rollover accident.

Q. How will Florida's new No-Fault law (effective January 1, 2008) affect me and what do I do if my current policy expires between October 1 and December 31, 2007?

A. First, if your current auto policy expires between October 1 and December 31, 2007, you will no longer be covered by No-Fault. That means that you, or your health insurer, will be responsible for your medical bills incurred as a result of a motor vehicle accident. Ultimately, you may be able to recover for your losses from the at-fault driver under general tort law. Meanwhile, it would be wise to purchase as much uninsured motorist coverage as you can afford.

For policies which renew after January 1, 2008, you will still be entitled to No-Fault benefits under your existing policy and then, upon renewal of that policy, once again you will be entitled to No-Fault benefits under the new law.

Q. If I file suit for damages sustained as a result of an automobile accident can I sue the insurance company insuring the person that caused my injuries, as well as the person who caused them?

A. No. Florida law specifically prohibits an insurance company from being sued directly when its insured negligently causes an automobile accident, and damages. In fact, should the case proceed to trial, the jury cannot be advised either that there is liability insurance, or the amount of same.

Once a verdict against the responsible driver is obtained, however, the insurance company may then be joined in the Judgment up to the amount of its policy limits.

Q. Can I recover punitive damages if I am physically harmed by another's actions?

A. Punitive damages are recoverable if the other person's actions are intentional, or amount to gross negligence. While intentional conduct is self-explanatory, gross negligence is a legal term of art. Generally, gross negligence means that the wrongdoer knows that his or her conduct creates an unreasonable risk of harm to others and proceeds with that course of conduct anyway. Drunk driving is a common example of gross negligence.

Additionally, before a claim for punitive damages may be filed, a special procedure must be followed. The claimant must bring evidence before the trial judge to decide whether there is a sufficient basis for the claim. If the judge does not agree that the claimant has provided enough evidence of intentional misconduct or gross negligence, then the claimant is not even allowed to file the punitive damages claim.

If you or a family member have been injured in an accident, please contact us for a free initial consultation at Wilkins Frohlich, P.A., 18501 Murdock Circle, Port Charlotte, Florida, (941) 625-0700

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