A Crash Course in Car Insurance – Lessons Learned in Litigation

According to a recent study performed by Nationwide Mutual Insurance Company, 73% of Americans talk on the telephone while driving. The Insurance Industry for Traffic Safety found that almost 6000 deaths were caused by distracted drivers in 2008. The numbers for teens are particularly striking. 21% of fatal car crashes involved cell phone usage and at least 50% of Florida teens admit to texting while driving.

In Florida these numbers have particular significance because of our existing insurance laws and the number of uninsured drivers on our highways. Unlike many states, Florida does not require its drivers to have liability insurance conditioned to pay someone else harmed by a negligent or reckless driver. The only required insurance is PIP insurance which provides just $10,000 worth of no-fault medical or lost wage coverage. Very few hospital stays cost less than $10,000 so rarely is there any money for lost wages. Surprisingly, there is no requirement that Florida drivers carry insurance to pay the people they injure. Even more troubling is the fact that Florida, while having only minimal insurance requirements still has the 5th highest rate of uninsured drivers in the entire country. According to a recent study by the Insurance Research Council, a full 23% of Florida drivers had no insurance of any nature. Regrettably, those who do have liability insurance often have limits of only $10,000. All of which increases the likelihood that if you are seriously injured on the highway you may well have no one to look to reimburse you for your medical expenses, lost wages and pain and suffering. So, how can you protect yourself?

First and foremost, make sure to buy liability insurance that also includes uninsured motorist coverage. Unless you reject it in writing, your insurance company is required to sell you uninsured motorist coverage in limits equal to your liability coverage. For example, if you have $300,000 worth of liability coverage, unless you have rejected it you will also have $300,000 worth of uninsured motorist coverage. This coverage will insure you not only against people who hurt you who have no insurance but also drivers who have some insurance but who don’t have enough insurance to compensate you for your losses.

Second, if you own more than own vehicle you will have the option to have “stacked coverage”. This coverage means that you will be able to add (or stack) the coverage for 2 or more vehicles usually at a significantly lower rate than buying the same amount for just one vehicle.

An additional way to protect yourself at least partially is to have adequate health insurance coverage. In those counties where the hospitals are privately owned they will immediately accept your health insurance company payments for medical services. If the hospital claims to be a public hospital and the legislature has granted them special lien rights, the hospital may refuse to accept your insurance. For example, in Lee County, where virtually all of the hospitals are owned by the Lee Memorial Health System, they will insist on receiving their money from the liability insurance company and may refuse to bill your insurance company or Medicare even though you are eligible. This can mean that very little benefits of the liability or uninsured benefits are available to you, particularly if the medical expenses are significant.

Finally, always wear your seat belt, keep a safe distance from the vehicle in front of you, and don’t assume that other drivers on the highway aren’t distracted.

Florida Supreme Court Rules no Shackels for Juvenile Delinquents

In courtrooms around the state, it has long been the practice that juveniles were to be shackled by the wrists and ankles with belly chains, chained to furniture or chained to each other when they were brought to appear before a judge.

In this 6-1 opinion, The Florida Court stated,  that this process was “repugnant, degrading, humiliating and contrary to the primary purposes of the juvenile justice system.”

One of the primary goals of the juvenile justice system is rehabilitation and many have argued that this process actually harms the child and can have long lasting psychological consequences.

The Florida Supreme Court, suggested that the shacking may also violate the children’s due process rights as it could be seen as cruel and unusual punishment.

A Fort Lauderdale Judge once told me that juveniles had to be shackled after two juveniles escaped as they were being transported to the courtroom. He said these juveniles, who were only handcuffed to each other, ran out front of the Broward Courthouse and each decided to run on the opposite side of a palm tree only to smack heads on the other side. The judge explained that these juveniles had serious injuries and that ever sense that day all juveniles had to be shackled. I am not sure if the judge made this up or if that was really the reason why all juvenile offenders had to be shackled.

At the time I heard the judge’s story I was working as a juvenile prosecutor and believed that juvenile delinquents were treated too lightly and I figured that they were only going to get a smack on the wrist so at least the shackling process might make them think twice before committing their next crime. Once I got out of the juvenile division I learned that even the adult defendants didn’t have to be shackled and that it wasn’t  really fair that the juveniles did.

At any rate, the Florida rules of Juvenile Procedure now state that restraints are allowed only to prevent physical harm against the child or others, if they pose a flight risk, or if they have a history of disruptive behavior in court and there are no alternatives.

Many public defenders and juvenile rights advocates around the state are very pleased with this decision; what’s your take?

Tiger Woods and the Importance of the 5th & 6th Amendments

I received a call the other day from a friend who told me that I should write a blog post about the recent Tiger Woods auto accident issue. I was trying to think of what to write and figured that the issue may be a little overexposed, when it came to me. Tiger’s recent “run in” with law gives me the perfect opportunity to point out the importance of the Fifth and even more important Sixth Amendments to the United States Constitution.

The Fifth Amendment reads in part that no person “shall be compelled in any criminal case to be a witness against himself”. In layman’s terms means that you don’t have to talk to law enforcement if the answers to the questions could incriminate you. In Tiger’s case he didn’t make any statements and further he was a no-show at the FHP station (a few times) when he was asked to come in for a physical examination and questioning. Clearly, the Florida Highway Patrol didn’t have much in the way of incriminating evidence (other than for a traffic ticket); but were hoping that Tiger would come in and give them their case on a silver platter. Also, the police wanted to see his injuries and determine if they were “Serious Bodily Injuries” and would thus warrant greater punishment in the State of Florida.

While Tiger’s no-show at the FHP station might have been rude, it just might have saved him his driver’s license or better yet, his clean criminal record. In Florida if a driver is found to be at-fault for causing an auto accident and the injuries are determined to be “Serious”; he or she is at risk of losing their license for a period of 1 year.

While Mr. Woods might have known this information on his own, it is more likely that he consulted a Florida criminal defense attorney who helped guide him through this difficult and nerve-racking process. This brings me to the Sixth Amendment; that is the right to have the assistance of counsel. Unlike the Fifth Amendment which (after being invoked) allows law enforcement to keep questioning a suspect at a later time, the Sixth stays with a suspect for the entire length of any prosecution. In short, when an individual “pleads the Fifth”, law enforcement is allowed to come back and resume questioning but once a suspect says “I want a Lawyer” Law enforcement must cease any and all questioning until a lawyer is provided.

While you may never have the ability to control the golf course like Tiger you should now be able to take control of any law enforcement questioning and keep the prosecution from scoring a “hole in one”

Be like Tiger, Plead the Fifth and consult with a lawyer next time you find yourself in a jam.

Medical Malpractice Recovery Rights for U.S. Soldiers?

The United States House of Representatives yesterday (10/7/09) took action that will hopefully lead to the end of discriminatory treatment of soldiers injured by medical malpractice.

Since the Feres decision by the United States Supreme Court in 1950, soldiers have not been able to bring actions for medical malpractice against the government; this is true irrespective of the level of disregard for their well being. Since the 1950’s untold numbers of soldiers after serving acting duty have been subjected to substandard treatment in military medical facilities. The House Judiciary Committee has now approved the Military Medical Accountability Act which would allow soldiers the same rights as  private citizens injured by medical malpractice.

 The bill named after Marine Sgt. Carmelo Rodriguez, who served his country with honor for nearly a decade, including a tour of duty in Iraq, and died as a result of preventable medical negligence. A blotch on his buttock went untreated and misdiagnosed multiple times by military doctors.  By the time Sgt. Rodriguez learned it was a cancerous melanoma the damage was done. Sgt. Rodriguez, the father of a 7 year old son passed away shortly after a proper diagnosis.

If this bill is passed by both the House and the Senate, it is anticipated that it will be signed into law by President Obama.

Broward County Judge Throws out DUI Test Results

Last week Broward County Court Judge Lee Jay Seidman concluded a four-day hearing by ruling that the accuracy of many breath tests using the Intoxilyzer 8000 has been “fatally compromised.”

The Intoxilyzer 8000 is the most recent version of a device that is designed to detect the percentage of alcohol in the breath of a suspect who has been arrested upon suspicion of drunk driving; this device is commonly referred to as a breathalyzer. Pursuant to Florida law these machines must be periodically inspected and certified for accuracy by the Florida Department of Law Enforcement.

Previous to this ruling F.D.L.E. inspector, Sandra Vegia, testified that during her inspections of the Intoxilyzer she would commonly cut off the power to the device if it did not meet specifications and then conduct the inspection a second time with the hopes of receiving a passing score.

In addition to ruling that state law “was not substantially complied with” Judge Seidman went on to say that “Moreover and certainly more troubling is the further finding that fraudulent practices and the systematic intentional destruction of evidence occurred regarding these state-regulated breath alcohol testing machines.”

While Judges in Monroe, Manatee, and Sarasota counties have already ruled that the Intoxilyzer 8000 results are not admissible in a criminal prosecution, Judge Seidman is the first Broward Judge to make this ruling. His ruling will only apply to DUI cases that occurred from 2007 through the summer of 1008.

Broward criminal defense lawyers are anxiously awaiting the rulings of many other Fort Lauderdale county court judges who have yet to weigh in the matter. Meanwhile, DUI Attorneys in Palm Beach are preparing to file these same motions on cases involving the Intoxilyzer 8000.

Southwest Florida Trial Lawyer, Jeffrey Garvin sworn in as FLABOTA President

The Garvin Law Firm is proud to announce that Attorney Jeff Garvin was sworn in as President of the Florida Chapter of the American Board of Trial Advocates at its Annual Convention in Longboat Key, Florida on July 25th.

ABOTA is an invitation only national organization of trial   attorneys dedicated to preserving the independence of the judiciary and the right to trial by jury. 

At the convention, Mr. Garvin spoke on the topic of the cross examination of expert witnesses.

Also sworn in were Bob Cole of Jacksonville as President-elect and Tom Gamba of Miami as Treasurer

New Florida Seat Belt Law Goes Into Effect Today

Until now, drivers could only be cited for not wearing seat belts if they were pulled over for something else, such as speeding.

That changes today with the passage of the Dori Slosberg and Katie Marchetti Safety Belt Law. With the passage of this new law a Florida driver who is not wearing a seat belt can be pulled over and issued a traffic citation for a nonmoving violation.

The state fine for a seatbelt violation will be $35, and each county may impose additional fines and court fees as well. Drivers and passengers who are found in violation of the new law are subject to a $114 fine in Miami-Dade County and $115 fine in Broward County.

This law is named in memory of two Florida teens that were killed in separate traffic accidents and died as a result of not wearing their seatbelts.

There are some exemptions to the new law, for instance a traffic ticket cannot be issued if an occupant has a doctor’s note, drives a trash truck, deliver newspapers, or is in the back of a pick-up truck.

Palm Beach Appeals Court Affirms $6.4 Million Verdict in Med Mal Case

Back in June of 2007 attorney Jeff Garvin of Fort Myers and Wilton Strickland of Fort Lauderdale successfully argued that medical malpractice was committed when a Broward County otolaryngologist (ENT) failed to diagnose tongue cancer.

A Broward County Jury awarded the Garvin Law Firm client $6.4 Million Dollars after hearing two weeks of testimony. Garvin argued that the Pembroke Pines Doctor was negligent when he failed to notice several recognizable symptoms of tongue cancer. This argument was strengthened when evidence was presented that the client sought a second opinion and this doctor noticed cancer almost immediately. Unfortunately for the client, the cancer had already spread and required extensive surgery to remove the growth.

After this surgery, which required the removal of most of his tongue, the client was left with a difficulty speaking, can’t swallow, and is forced to eat blended food through a tube in his stomach.

After the jury awarded a $6.4 million dollar verdict (which was reduced to $5 million by the Judge), the defense lawyers appealed the case to the 4Th District Court in Palm Beach County. In reviewing the case, the appellate court determined that the money was properly awarded and allowed the verdict to stand.

Naples Criminal Defense Lawyer Prepares "Stand Your Ground" Defense after Shooting Death

According to the Collier County Sheriff’s Office, the shooting took place some time after 4 a.m. this past Friday when 44 year-old Sterlin F. Misener Jr confronted 19 year-old Patrick Hutchison after seeing the teen exit a camper that was parked in Misener’s Naples Driveway.

Misener told authorities that he awoke to the sound of a burglar alarm and shortly after saw Hutchinson exit a camper that was parked in his driveway. According to reports, a confrontation began and Misener stated that the teen lunged at him before he fired the fatal shot.

According to Florida Law, if a person has a reasonable belief that they’re in danger of death or great bodily harm, they can legally respond with deadly force. Further, that a person is presumed to have held a reasonable fear of death or great bodily harm if the intruder had forcefully and unlawfully intered a dewlling, residence, or occupied vehicle.

The statute, enacted in 2005, goes on to state that a person who uses deadly force is justified in using such force and is immune from criminal prosecution.

Whether or not the camper parked in Mr. Miseners driveway will meet the definition of “Dwelling” is yet to be determined.

According to the Naples Daly News, Homeowners generally aren’t prosecuted, but a Hillsborough man was arrested on a charge of aggravated battery, was prosecuted, but won a motion to dismiss the charges. The prosecutor appealed and won in December 2007, when the Second District Court of Appeal ruled David Heckman was not entitled to immunity from prosecution under a statute that provides immunity when protecting a home.

The Hillsborough decision will not bar Mr. Miseners ability to use this defense as the two cases are quite different, but Floridians will have to follow this case for the final result.

For more on the Justifiable Use of Deadly Force Defense take a look at Florida Statute Section 776

Broward County Sheriff Begins Traffic Ticket Blitz

Starting this morning (3/16/09), Broward Sheriff’s Office deputies and state troopers will be conducting a ticket blitz in western Broward County.

Squads will be on Interstates 75 and 595 and on the Sawgrass Expressway from 8 a.m. to 2 p.m. Monday, Tuesday and Wednesday. On Thursday, the officers will patrol those highways from 2 p.m. to 10 p.m.

The joint operation, which targets aggressive motorists and violators of the “Move Over” law and seatbelt requirement, will continue for four days, according to Sheriff’s Office spokesman Mike Jachles.

For more information visit our page on traffic ticket defense.