Amanda Knox, the American college student accused of murder in Italy, came out with a book this week about her ordeal in the Italian criminal justice system. Her book, Waiting to Be Heard, is likely to reignite the media attention her case has received in the last several years.

Knox was initially convicted of the 2007 murder of her roommate. She was then acquitted after a rehearing in 2011. Finally, the case went to the Italian equivalent of the Supreme Court, which recently decided she must be tried for the crime again. After that trial, which may not happen until early 2014, both parties will have the right to appeal again. 

Although Knox is now back in the United States, the retrial will happen whether she attends or not. Almost six years after the murder, the case is far from over.

Some of the features of Knox’s trial were – to put it mildly – incompatible with American ideas about proof and fairness. The lack of Knox’s DNA in the victim’s bedroom? No problem: she must have cleaned up the scene to avoid detection. The large amount of DNA at the crime scene, and even DNA on the victim, from a man who was also convicted of the murder? No problem: Knox helped him do it. The lack of any plausible motive for Knox to kill her roommate? No problem: it could have been rage induced by smoking pot (pot being notorious for inducing rage), the victim’s refusal to participate in an orgy, or part of a Satanic ritual. Or maybe Knox was such a remorseless psychopath that she did it for no reason.

In other words, the lack of proof that Knox committed murder was just more proof that Knox committed murder. The Italian prosecutors were nothing if not creative.

Only a justice system with standards very different from ours could have produced a conviction with “proof” of this type. And while we do have appeals in our system, we don’t have a system that allows for a conviction, a retrial on appeal resulting in an acquittal, and then a decision that the whole thing has to be tried again more than five years later.

Winston Churchill said democracy was the worst form of government except for all the others that have been tried. The Amanda Knox case tells us the same is true for the American justice system.

It is messy, expensive, and inefficient at times. But it looks like a truth-seeking gem when you compare it to the others.

A judge in Tallahassee recently blocked Florida’s new no fault insurance law.  The judge issued a written decision finding that the new law violates the constitutional right of access to courts.  While the judge’s decision is likely to bring howls from the insurance industry about “judicial activism,” it makes sense when one considers our constitution and court system. 

To understand the decision, however, one must put it in context with the no fault law’s history. So at the risk of oversimplifying a few things, here is a brief review: 

Florida has had a no fault auto insurance law for decades.  Generally, that law requires a person injured in a car accident to use their own insurance coverage for certain expenses.  An injured person is required to first seek benefits under their own coverage, or the coverage on the vehicle they were occupying, before making a claim against others.  This is true even if another person caused the accident.  Because this coverage is not tied to legal fault, it is often referred to as “no fault.” 

While the no fault moniker is common, this coverage is actually called personal injury protection, or PIP.  Drivers in Florida are currently required to have $10,000 of this coverage. 

The upside of PIP is that is was designed to be available quickly and easily, and without the need for fights about liability.  The downside is that PIP also restricts people’s right to make claims and seek damages in a personal injury or death lawsuit arising from a car accident. 

Even though PIP’s restrictions took away some of the damages historically available to people injured in accidents, Florida courts permitted those restrictions.  They found the no fault system provided benefits which largely replaced traditional courthouse damages.  While the compensation schemes were not identical, the courts considered no fault to be at least roughly as good as the old damages system.

 Until 2013, a full $10,000 would be available to pay accident-related expenses such as medical bills and lost wages to an injured person.  However, the Florida legislature restricted PIP coverage last year.  Under the new law which became effective a few months ago, the full $10,000 is only available to someone who has an emergency medical condition.  For those with lesser medical problems, only $2,500 is available.  The legislature also put other restrictions on coverage, such as barring coverage for those who don’t receive medical care for 14 days after an accident.

However, these new restrictions create a problem.  The new system is so much more stingy that it no longer looks like a decent tradeoff for the old-time damage remedies people lost.  While the legislature took certain no fault benefits away, it provides no new benefits or upsides.  There’s a serious question about whether it is still a reasonable alternative to the old courthouse damages system.

This brings us back to the court’s decision from Tallahassee.  The judge there handed the insurance industry a defeat on constitutional grounds this week.  The court found PIP’s new restrictions were too severe.  According to the judge, they turned PIP into a constitutionally inadequate substitute for the old damages law.  

The court’s order blocked the new PIP law. In legal terms, he entered a temporary injunction, which at least temporarily prevents some of the restrictions in the new law from being effective.

There will no doubt be an appeal and plenty of hand-wringing by the new PIP law’s proponents. However, the decision rests on a very basic constitutional principle: you can’t simply take legal rights away unless you replace them with something which provides comparable benefits.  The new PIP law flunked that test.  

The judge who decided the case followed the law as he reasonably understood it.  That is what judges are supposed to do. While one may disagree with his ultimate conclusion, his decision was not activist, result-oriented, or the result of some left-wing agenda.  If you hear otherwise from the insurance lobby, consider the source.

In previous posts, I’ve discussed the dangers facing bicyclists and pedestrians on Tampa Bay area roads.  The figures are now in for 2012.  Unfortunately, the picture remains grim.

There were 13 bicyclist deaths in Hillsborough County in 2012.  That’s up from 2011, when there were nine, and 2010, when there were 11.  Pasco County was also up, with five deaths.  Pinellas tied its 2011 death number of 10.

Long-range data is even more depressing.  A study by Transportation for America, a coalition working for transportation reform, published a study in 2011 ranking metropolitan areas for pedestrian safety.  Rankings were based on a 10-year period from 2000 to 2009.  The Orlando area was worst, and the Tampa area was second worst.  Four of the five worst areas were in Florida, with Jacksonville and Miami ranking third and fourth respectively.

There is even a racial and demographic component to the TFA figures.  African Americans and Hispanics walk more than other ethnic groups.  Almost 20 percent of African American households don’t have cars; the same is true for 14 percent of Hispanic households.  African Americans walk on trips 26 percent more than white people, and Hispanics walk about 45 percent more. 

Not surprisingly, members of those minorities suffer far greater rates of per capita pedestrian injury and death.  Hispanics suffered pedestrian death rates nearly 62-percent higher than whites.  African Americans were even higher, at 73-percent above death rates for whites.  The poor and elderly, groups who also walk more than the general U.S. population, also suffered substantially higher per-capita death rates.

Ironically, there seems to be an almost inverse relationship between pedestrian accidents and the number of pedestrians.  Boston, where five percent of workers walk to work, was ranked the best metro area for pedestrians.  In Orlando, the worst area, only 1.2-percent of workers walked to work. 

I’ve commented on this seemingly counterintuitive phenomenon in prior posts.  It seems that in places where there are many pedestrians, drivers learn to watch for them.  In places where there are few, they do not.  Thus, the data suggests that the solution for high rates of pedestrian injury and death is actually more pedestrians.

At a time when there is a national epidemic of obesity and related health problems (diabetes, high blood pressure, etc.), we need to encourage people to be more active, not less.  Our entire country has some work to do on this, but Florida in particular has a long way to go. 

Simply building more roads with more lanes and higher speed limits is not the answer.  In fact, it has brought us to the sorry state of affairs we see now.  Transportation funding should provide protected lanes for bikers and walkers, marked crosswalks, and other sensible protections.  Otherwise, high injury and death rates are likely to continue.  At the same time, healthy behavior that would do most Americans a lot of good will be discouraged.

DRIVING PRIVILEGES AGREEMENT

         I,                                                                      , recognizing that my parents are giving me permission to drive a car, and understanding the awesome responsibility that operating a car entails, hereby freely and voluntarily enter into the following agreement and understanding.

                  I understand that I am being granted permission to drive. Permission to drive is not a legal right: It is granted to me by my parents, who are under no obligation to do so, and who may withdraw the privilege at any time. The State’s role is to determine that I meet the minimum requirements for a license. I understand that I will only be allowed to drive when I am willing to abide by the rules and regulations established by my parents.

 I recognize that driving a car is a very serious matter. I recognize that…

                 Automobile accidents are the leading cause of death of people 16-20 years old.

                I am more likely to die in an auto accident than from any other cause.

                Recklessness or errors that I make while driving could kill or hurt me, passengers in the car I drive, and/or people in other cars and pedestrians. Among those that could be victims of my driving mistakes are: Infants, children, my friends, my family members, parents of children, and many others.

                I will abide by laws regulating driving. I will observe and abide by posted speed limits. I will abide by rules established by my parents. I recognize these are for my protection and the protection of others.

                I understand that the car I drive is property of my parents. Even a car that is a “gift” to me is still, legally, the property of my parents. I drive the car only with permission.

                I understand that my parents and I must be able to reach a written agreement in order for me to be permitted to drive. I understand that the terms of this agreement may be changed based on how I handle the freedom and responsibility of driving. The rules will get stricter if my parents judge that I am not doing well.  The same rules may get somewhat less strict if my parents judge that I am doing well.

                 I understand that, until I reach the age of 18, any criminal or negligent acts that I commit may also lead to personal liability on the part of my parents, including possible incarceration, financial liability for my recklessness, and other serious consequences that threaten the well being that my parents have worked hard to achieve.

                I must study and be aware of the terms of this contract. “Forgetting” any part of the contract is not an excuse.

THREE CRITICAL RULES

• If my parents deny me permission to drive, for whatever reason, I will abide by this and give them my keys immediately with no argument or debate. I may ask to meet with my parent(s) no earlier than 24 hours later to talk about it. Refusal to immediately surrender keys will result in the car being immobilized. NO EXCEPTIONS. If my parents immobilize the car I drive because I did not obey the above rule, two to four weeks will pass, at my parents’ choice, before any discussion will occur about driving again. Another incident of failure to surrender keys on demand will lead to indefinite suspension of driving privileges.
• If I drive in defiance of my parents’ order not to drive, this contract is cancelled and no driving will be permitted for the next six months.
• If I drive in defiance of my parents’ order not to drive, my parents may call the police.

 RULES-Category A

These rules, if violated, will lead to indefinite suspension of driving privileges. This is the most serious set of rules. I understand that I may lose my driving privileges indefinitely if any one of these is violated even once.

1. No alcohol use/abuse. Even though some minors drink, as a minor, it is illegal for me to drink alcohol. I understand that my parents do not permit me to drink. However, if I do so, I will not drive for 24 hours after my last use of alcohol in ANY amount.

2. No drug use/abuse. I will not drive for 72 hours after my last use of any “substance.” In this agreement, “substance” means any drug or chemical (including but not limited to marijuana, pills, inhalants, and other drugs) which would be expected by my parents to alter my ability to drive. There is no acceptable amount of any substance of this kind. If I use any drugs, I will not drive for 72 hours. This rule may include medications prescribed to me or over-the-counter medications. In the cases of legal medications, I will inform my parents of any such medications I have taken so that they can judge whether taking these medications will interfere with my driving ability. Furthermore:

a. No riding with others who have used alcohol or drugs. I will not ride as a passenger with any driver who has used alcohol or any substance as defined above. I will not ride with any one who it would be reasonable to think may have used alcohol or drugs, when I am unsure if they have.

b. Alternatives to riding with others who have used alcohol or drugs. If I find myself in a situation as described above, I will contact my parents or another designated adult to arrange for transportation. I understand that my parents will appreciate that behavior and will make every effort to avoid asking me a lot of questions about it.    My parents have assured me that I may call them at any time of day or night if I find myself in a dangerous situation of any kind.

c. No alcohol or drugs in car. I will not allow alcohol or illegal drugs in the car. My parents will hold me responsible for any alcohol or drugs in the car, even if they don’t belong to me or it is the fault of someone riding in my car.   IF IT’S IN THE CAR, IT IS CONSIDERED TO BE YOURS AND YOU WILL BE HELD ACCOUNTABLE.

3. No thrill-seeking/stunts. I will not engage in any thrill-seeking behavior while driving. I will not drive for recreation. Driving too fast, racing of all kinds, and any kind of “stunt” involving a car is NOT ALLOWED. Driving is for transportation ONLY.

4. Informing parents about accidents & police encounters. I will inform my parents about any and all tickets, accidents, and encounters with police.

5. No firearms or other weapons. I will not drive with any guns or other deadly weapons in the vehicle.

6. No Texting, emailing, or use of a cell phone, PDA, or other handheld device while the car is moving.   If I need to communicate with anyone, I will make sure I am stopped and in a safe area before making any attempt at using the phone or PDA.   I know that the use of these devices is a HUGE distraction to me and that distracted drivers cause car wrecks.

RULES-Category B

Violations will lead to suspension of driving privileges for up to three months.

1. Permission to Drive. I must ask permission to drive each time I drive. Exceptions to this rule will be given for regularly scheduled transportation to school, practice, work, regular meetings, etc. I will ask permission to drive to specific locations and will discuss the route planned. I will be certain that my parents know where I am. I will not make unscheduled stops or side trips.  I WILL BE TRUTHFUL AND HONEST WITH MY PARENTS IN MAKING SURE THAT THEY ARE AWARE OF MY WHEREABOUTS.

2. Curfew. I may not drive after Midnight unless I have specifically obtained permission from my parents to do so.

3. Limit on passengers.  I will abide by State law regarding the number of passengers in my vehicle.    I will also abide by any rules that my parents give me regarding the number of passengers I may have in that car at any given time.  

3. Off-Limit Areas. I will not drive on streets, highways, or in areas that are designated as off-limits. I understand that greater flexibility in these matters will come as I gain experience and show that I am honoring the agreement. For the time being, the following roads and areas are to be avoided if at all possible:   Add Off-limits highways here.     

4. No one else drives vehicle. I will not permit any other person to drive the car without my parents’ specific permission for each specific case.

RULES-CATEGORY C

Violations may lead to suspension of driving privileges for up to six weeks.

1. Weather/road conditions. I will respect weather and road conditions, slowing down as needed for safety. I will contact my parents to discuss weather or poor road conditions when I am out driving.

2. Emotional upset. Knowing that judgment and driving skills are altered by emotions, I will not drive when I am upset or angry. If upset, I will contact my parents for transportation and I reserve the right to maintain my privacy regarding personal matters. My parents agree not to ask a lot of unnecessary questions.

3. Taking care of vehicle. It is my responsibility to protect the car I drive. I will keep it reasonably clean and maintained. I have some specific responsibilities regarding the maintenance of the car as noted below.

4. Passenger behavior. I will not allow my passengers to behave in such a way as to damage the car or distract me while driving.

5. Seatbelts. I will wear my seatbelt at all times and require all passengers to wear them.

6. Friends ride only with their parents’ permission. When transporting my friends, I will be reasonably sure that they have their parents’ permission to ride with me.

7. Thank You For Not Smoking. I will not allow smoking in the car. I will not smoke in the car.

8. No eating & driving. I will not eat while driving.

9. Car audio system. I will be allowed to have the stereo on but will make no adjustments to it other than changing the volume while driving. Under no circumstances will I change a CD or adjust my Ipod while driving. I will change these only when stopped or pulled over.

10. CELL PHONES and Other electronics.  Except in the case of a genuine emergency, I will not talk on the cell phone while the vehicle is moving.    Under no circumstance will I send or read text messages while the vehicle is moving.   (Initial here to confirm:      ).     

11. No rushing. Accidents are more likely to happen when I rush. I am more likely to rush when I leave late. Therefore, my parents reserve the right to not allow me to drive unless I leave by a time they specify. For example, if my parents tell me that I must allow 20 minutes to get to something that starts at 7:00 , I may not leave later than that. In such cases, my parents will attempt to provide alternative transportation, to whatever extent possible.

12. Attention to Driving. I will not do things while driving that distract me from the road.

 SPECIAL ITEMS:

1. Tickets and moving violations will result in suspension of my driving privileges for a period to be determined by my parents. My parents have no obligation to pay my fines for driving-related tickets.

2. Financial. I will make certain financial contributions to the purchase of the car, maintenance of the car, and/or insurance, in a manner deemed appropriate by my parents.    

3. Family obligations. I agree to provide transportation to family members at the directive of my parents. Fulfilling these obligations is a condition of my use of a car. Sometimes these responsibilities will override my own desires and interests in using the car.

4. General life responsibilities. I agree that I must be responsible to drive safely and that my parents must believe I am relatively responsible in order to allow me to drive. They may, therefore, take into account how I handle my general responsibilities, including schoolwork, athletic participation, employment, household duties, etc. I will also maintain a respectful attitude. I will not ask my parents to allow me to drive when I am rude and disrespectful to them or to others.

5. Right to clear expectations. My parents have a right to expect me to be responsible. I have a right to be told what this means. For this reason, I may ask my parents for clarification of their requirement that I “be responsible.”

6. Changes in this agreement. I understand that this contract will be made more strict at any time my parents believe that is the best thing to do. I understand that if I consistently abide by these rules that my parents will work with me to make the contract less strict as I gain experience. However, I understand that–bottom line–it is my parents’ choice and responsibility to change or not change the contract. We will review this agreement and perhaps make changes to it on _________________________ (insert date 6 months from date of signature)  or earlier if my parents or I wish to do so.

7.  All in the Name of Love.  I understand that my parents are not insisting that I sign and comply with this contract just to make my life difficult.   I recognize that my parents love me deeply and want what’s best for me, and that my compliance with this contract will help both them and me to lead happier and more fulfilling lives.

8.  Other.   (Insert any specifics as needed)

Summary: I agree to abide by the rules in this contract and I accept the consequences and penalties if I do not. I recognize my parents’ authority in deciding if I may drive. That authority is final until I am an adult living independent of my parents.

Signatures

                                                                                                                                (date)

(Fill in teenage drivers name here)

                                                                                                                                (date)

(Mom/Dad’s Name Here)

                                                                                                                                (date)

(Mom/Dad’s Name Here)

By Morgan Gaynor

Florida is a “battleground state” in the upcoming Presidential election. The race for the presidency has gotten enormous amounts of attention in the last few months.

Because of that, it could be easy to forget that there are many other issues to be decided in the November election. One of those issues is merit retention of three Florida Supreme Court justices: Fred Lewis, Barbara Pariente, and Peggy Quince.

Basic civics tells us we are supposed to have three separate branches of government: the executive, the legislative, and judicial. One of the defining features of our free society is an independent judiciary. In our constitutional framework, judges are supposed to simply “call balls and strikes.”

In contrast, totalitarian societies typically have court systems which are not independent. Judges are lackeys to the party in power and do whatever it wants. The results of trials and appeals are often a foregone conclusion in those kangaroo courts.

Knowing that, it is unfortunate that the Republican Party and special interest groups have mounted a campaign to oppose the retention of Justices Lewis, Pariente, and Quince. This is not based on any allegation that these judges are incompetent, corrupt, or fail to show up for work. The GOP and the interest groups simply don’t like some of their court decisions.

One of the groups involved in the campaign against the justices is Americans for Prosperity. Americans for Prosperity is affiliated with the billionaires Charles and David Koch. This group has criticized the justices for “advocating from the bench.” However, the term “advocating from the bench” is a loaded but empty phrase. It doesn’t really mean anything. It’s just something people say when they don’t agree with a judicial decision.

Some court observers and newpaper editorial boards believe that this is a flat-out power grab. They are concerned that our current governor, along with some members of the Florida Legislature, would like to pack the court with their own appointees rather than accept the existing ones. But court-packing is shortsighted and dangerous. In politics, what comes around goes around. In time, a politicized judiciary could just as easily favor the other party.

These comments are not intended to be a criticism of the Republican Party generally. The point is that no political party should oppose retention of judges simply because of their decisions. It would be just as wrong for the Democratic Party and left-leaning interest groups to oppose justices who were too conservative for their tastes.

Judges are supposed to decide based on the laws and the Constitution, not political whims. They should not lose their jobs simply because they interpret the law as they understand it. We urge you to vote to retain these three justices and help keep politics out of the halls of justice.

Because of concerns about how these companies operate and the claims they make, the Florida Bar recently formed a committee to study them. The result of the committee’s work was a scathing report released in July 2012. 

A few passages from the committe’s report will get the point across. For example, the committee cited a 2010 article from a Miami publication (the Miami New Times) which contained the following statements about one such company:

In addition to outlining the history of 411-PAIN, the article also focused on its operational practices with a case history of unsophisticated accident victims who called 411-PAIN and received a variety of treatment modalities they did not understand and for which no explanation was given.

According to the committee, the New Times article also noted 411-PAIN’s aggressive marketing program. The article observed that 411-PAIN “made no secret about courting African American and Latino consumers through R&B and hip hop radio stations, catchy jingles and outlandish spokespersons.” 

Lawyers associated with 411-PAIN were also criticized in the article for failing to look out for their clients: 

[Accident victims] were ultimately referred to an attorney who provided little advice other than to explain a contingency fee agreement, after which the victims/clients dealt only with the attorney’s secretary. Thousands of dollars in medical bills were incurred and partially paid through the personal injury protection insurance of the victim/clients. All proceeds therefrom went for medical expenses but the victim/client was still left with significant bills.

The committee report also cited investigators for the Florida Department of Financial Services, who described other unsavory practices at some referral services: 

[S]ervices have used advertising to disguise direct solicitations; some patients, in filling out purported medical care paperwork, have unknowingly signed undisclosed and unexplained law firm retainers; and some patients, unhappy with their medical treatment at a referral clinic, have gone to their referral-designated lawyer for help, only to be told – even in situations where the lawyer was already seeking PIP benefits for them from an insurance company – that the lawyer could not help them because the lawyer represents the clinic.

One witness was apparently threatened by his former employer because he made unflattering statements about that employer at a public hearing. This is the committee’s discussion about Dr. Jeffrey Lauffer: 

Dr. Lauffer worked both as a chiropractor and MRI technician for Physicians Group, LLC, the network of clinics affiliated with ASK GARY and which now operates in three states, including Florida. Lauffer indicated that all auto accident victim calls to ASK GARY are referred to Physicians Group clinics; those clinics do not accept non-automobile cases. According to Lauffer, Physicians Group allowed lawyers and corporate financial personnel to influence decisions regarding the levels of health care provided to individuals, maintained a “public” and “non-public” set of records on each patient, based financial incentives for physicians on the number of procedures they performed, and engaged in other questionable practices that he did not consider to be in the best interests of its patients. The day after Lauffer’s appearance at the public hearing, he received a cease and desist letter from ASK GARY’s legal counsel demanding he stop making “false and defamatory statements” about the company’s “billing practices, bonus structures and patient care” and threatening to sue him.

If true, these reports are deeply troubling. People involved in auto accidents suffer enough. They should not be manipulated or duped by organizations who want to cash in on their no-fault automobile insurance benefits. They should also not be lured with the promise of benefits which actually will be used to pay health care providers. This is especially true in cases where the care and treatment does little to help the person recover from injury. 

The committee’s report ended with recommendations for increased restrictions on lawyers who participate in referral services. We applaud the committee for bringing this matter to the public’s attention and making its recommendations. We hope the Florida Bar will take the recommendations seriously and act quickly. 

In the meantime, we urge auto accident victims to be very careful when making decisions about medical care and legal representation. Two old sayings apply here: (1) buyer beware, and (2) if it sounds too good to be true, it probably is. 

Anyone interested in reading further can see the full report on the Bar’s website, www.floridabar.org, under Report of the Special Committee on Lawyer Referral Services.

By now, many people have heard about the dangers of texting and driving.  But it’s not just driving and messaging that could land you in hot water.  In a recent case in New Jersey, a lawyer attempted to take the law into a new area.  He argued that not only a texting driver, but a person exchanging messages with that texting driver, should be held responsible for a serious accident.  The case got considerable media attention because of this new and novel argument.

In the end, the judge in the New Jersey case rejected the argument.  The judge declined to extend rules of law to make someone responsible for creating a distraction for a driver. 

However, that does not mean the argument might not be accepted in future cases.  The law is constantly evolving to cover new situations.  There is mounting evidence of the danger caused by texting and driving.  Some courts may eventually accept the argument that one can be an accomplice to a texting driver.  If a person knows the person they’re exchanging messages with is behind the wheel, many people might consider them to be contributing to a danger out on the road.

Legal arguments aside, you obviously should never text with someone you know is behind the wheel.  Wait until you know they’ve stopped driving to message with them.  Virtually no communication is so urgent that it can’t wait until the person on the other end stops their car.  Lives and limbs may depend on it.

At the end of April, an appeals court in South Florida decided a personal injury case squarely in favor of the parent-child relationship.  In doing so, it avoided putting the mother and her injured daughter into an incomprehensible catch-22.

Claire’s Boutiques v. Locastro began as a seemingly straightforward negligence case.  Amy Locastro took her 13-year-old daughter, Alexis, to a Claire’s store to have her ear cartilage pierced.  After the piercing, Alexis developed a horrible infection in the cartilage.  Surgery was done on the ear, and Alexis had to stay in the hospital for about eight days.  After the surgery, Alexis was left with permanent deformities of her ear. 

Amy Locastro filed a lawsuit for her daughter which ultimately went to trial.  The jury decided Claire’s was negligent in causing the injury to Alexis and found about $70,000 in total damages. 

This looked like a win for Alexis and her mother.  However, at that point the catch-22 came into play.

Ms. Locastro had signed a waiver provided by Claire’s for her daughter’s ear piercing.  That waiver required her to “indemnify and hold Claire’s harmless . . . [for] all claims that I or my minor child may make.”  Ms. Locastro probably didn’t have the faintest idea what this legal jargon meant.  But after her apparent victory, she became painfully aware of its consequences.

Based on this language in the waiver, the trial judge ordered Ms. Locastro to pay for her daughter’s $70,000 in damages in place of Claire’s.  The judge also decided she had to pay Claire’s the roughly $140,000 in attorney’s fees Claire’s spent defending the case, which was about twice as much as the verdict itself.  Thus, the “victory” for Ms. Locastro and her daughter resulted in Ms. Locastro being personally responsible to pay Claire’s about $200,000.  She had no insurance to cover this, which meant the money had to come right out of her pocket.

The scenarios for the Locastros created by this waiver are mind-boggling.  To mention just a few:

1)         If Claire’s was found responsible for Alexis Locastro’s damages, then Claire’s was actually not responsible for those damages.  Only Ms. Locastro, who brought the lawsuit for her daughter, would be liable for the damages.

2)         When Ms. Locastro and her daughter won, they actually lost, because they were unwittingly suing themselves.  And while Ms. Locastro was suing herself, she was being required to pay the attorney’s fees of Claire’s attorneys, even though she “won” against those attorneys at trial. 

3)         By the same token, when Claire’s lost, it actually won.  The verdict requiring Claire’s to pay the mother and daughter actually meant nothing but financial ruin for Ms. Locastro.  The more Claire’s spent on attorney’s fees, and the more it offended the jury and pumped up the verdict, the deeper the hole it would create for Ms. Locastro.

4)         The trial judge decided Ms. Locastro was not responsible to pay in her capacity as Alexis’s mother.  But she was required to pay in her “individual” capacity.  In other words, Ms. Locastro did not have to pay $200,000 while she was wearing her mom hat, but did have to pay $200,000 when she was wearing her individual hat (not surprisingly, the Court didn’t talk about whether Ms. Locastro had gone through her life keeping her “mom finances” separate from her “individual finances”).

Ironically, Ms. Locastro only signed the waiver because she was the responsible parent.  The first words of the waiver were, “I am the parent or legal guardian of a minor under 18 years of age.”  Therefore, Ms. Locastro was not responsible as parent for the contract she signed as parent, but she was responsible for the contract she signed as parent in her non-parent (individual) capacity.

It would be easy and perhaps amusing to go on listing catch-22s.  Fortunately, it is unnecessary, because an appeals court brought the charade to an end.  It ruled that the waiver requiring Ms. Locastro to financially protect Claire’s from its negligent acts that harmed her daughter was void.  To uphold the waiver, the Court observed, “would impact a child’s well-being” and would be “catastrophic to the family’s fortunes.”

In other words, the court recognized the impossible position the Locastros would be placed in if the waiver were enforced.  It came down on the side of common sense and refused to enforce its terms. The jury’s verdict in favor of the Locastros was basically reinstated.

Even though the Locastros won on appeal, the case remains a cautionary tale for consumers for several reasons. 

First, the Locastros lost on the waiver issue in the trial court.  That does not mean the trial judge was cruel or trying to be unfair.  Generally, judges are generally required to follow the law as they understand it, even when they don’t like the outcome.  The Locastro trial judge may have felt duty-bound to enforce the waiver.

Second, the appeals court ruling was a close call: six judges voted to void the waiver, but five voted to enforce it.  The five who voted to enforce it thought Ms. Locastro should have to live with the bad bargain she had made for herself and her daughter.

The five dissenters relied on the old principle of “freedom of contract.”  This was the principle employed by the U.S. Supreme Court – quite infamously – to void laws limiting workplace hours and the minimum wage about a hundred years ago.  Apparently a broad interpretation of that principle is alive and well in South Florida today.

Third, the win for the Locastros is not guaranteed.  The appeals court, recognizing the importance of the issue it decided, recommended that the case go to the Florida Supreme Court for a final decision.  If the Supreme Court takes the case, there is no telling how it will rule.  In the unfortunate event that the Locastros lose at that level, Ms. Locastro will owe even more money for the legal fees Claire’s Boutique incurred for that stage of the appeal.

We are certainly happy that the appeals court ruled in favor of Ms. Locastro and her daughter.  Again, however, the overriding lesson for consumers is to be careful what you sign.  The case shows how the fine print of a contract can put you squarely into a catch-22.

It’s no secret that many people driving in Florida have inadequate insurance for injuries they cause to others. Some drivers have no coverage at all. Many others have coverage, but at limits which are insufficient to pay an injured person’s total damages. In a case where someone suffers catastrophic injuries, even $100,000 in coverage might only cover a few hours or days of medical bills.

Consider this example: a woman in her 30s gets hit by a pickup truck which runs a red light and smashes into the driver’s side of her car. She is removed with jaws of life, flown by helicopter to a trauma center, and found to have several broken bones. She stays in the hospital for several days, then faces seemingly endless sessions of therapy when she’s released. 

Thirty days after her accident, she begins receiving her bills and adding them up. To her horror, she finds that her bills – at least on paper – are about $150,000. But the driver of the pickup who hit her has $100,000 in coverage, and she has no coverage of her own. The insurance company for the pickup truck driver is willing to pay her the $100,000, but it’s already clear that it won’t be enough.

Left to her own devices, our accident victim may end up with nothing but debt. If she sees a lawyer, on the other hand, she may be able to get some relief. Lawyers can sometimes orchestrate what we call a “cram down” settlement, where everyone shares the pain to create the fairest possible outcome.

The term “cram down” has a specific meaning in bankruptcy law. As we use it, it simply means getting everyone involved in the case to take a financial hit. A lawyer can negotiate with hospitals, physician’s offices, and health insurance companies making reimbursement claims. When a lawyer tells them the settlement funds were inadequate, they often will realize that fairness requires them to make a sacrifice too. In many cases, they will agree to accept less than their total bills in exchange for prompt and certain payment.

In this scenario, our accident victim goes from the possibility of owing money to having all her bills paid and putting money in her pocket. If her bills are reduced from $150,000 to $40,000, they can be paid in their entirety from the $100,000 in settlement funds. There will still be money left after that for her personally. This is less than ideal, but it is much better than paying out all the settlement funds and still owing money.

While this type of negotiation work lacks the drama and tension of a courtroom battle, the outcome may be just as important to clients. They may find that this under-the-radar work is the difference between financial disaster and getting back on their feet.

Following are some frequently asked questions about the Martindale-Hubbell Rating process:

How does an attorney obtain a Rating?

Most rating reviews are initiated by Martindale-Hubbell in five-year intervals after admission to the Bar. In larger cities, where it often takes longer to build a reputation, ten years is the norm. A lawyer, partner, marketing director or colleague can also request a rating review.

How are law firms rated?

Generally, a law firm is given the rating of its highest rated active partner.

Does an individual have to have a paid listing in the Martindale-Hubbell Law Directory to be rated?

No. The goal of the ratings system is to develop accurate ratings for as many lawyers as possible, whether or not they have a paid listing

.What is a good Rating?

All Ratings are positive indicators of an attorney’s ethics and professional stature. The CV ® is a good first rating for lawyers and a definitive statement of their above average ability and unquestionable ethics. The BV ® is an excellent rating for an attorney with more experience. An AV ® rating is a significant accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.

How does an attorney obtain an AV ® rating?

The knowledge and skill derived from extensive experience in the practice of law are usually the attributes considered when endorsing a lawyer for an AV ® rating. The standard of excellence is determined by the lawyers currently practicing in that particular Bar.

MARTINDALE-HUBBELL is a service mark and a registered trademark and CV, BV, and AV are registered certification marks of Reed Elsevier Properties Inc., used under license.

Source:

http://www.martindale.com/company/ratings-faq.htmlMark Roman Law Group is proud to announce Morgan Gaynor has achieved an AV Rating, the highest rating possible

. To learn more about Morgan Gaynor, and Clearwater Personal Injury Law Firm, Mark Roman Law Group, please go to www.markromanlaw.com. Clearwater Auto Accident Law Firm, Mark Roman Law Group, specializes in Personal Injury and Wrongful Death resulting from car accidents, boating accidents, construction accidents, falls and other accidents involving injury.

SWFBUD was created in January 2007 when former longtime newspaper reporter and bicycle activist Alan Snel recruited retail bicycle stores in Tampa Bay to join two founding SWFBUD members — Carrollwood Bicycle Emporium in north Tampa and Oliver’s Cycle Sports in New Tampa — to create an alliance that would offer political clout in advancing bicycling in the region.

Through the years, SWFBUD prompted Hillsborough County to initiate a bicycle safety action plan in response to tragic bicyclist deaths; leaned on the city of Tampa to start a bicycle-pedestrian plan and increased the awareness of bicycling through its annual Bicycle Bash and frequent media coverage. SWFBUD also attended bicycle summits in Washington, D.C. and Tallahassee to alert elected leaders to support pro-bicycle legislation.

The 11 bicycle stores are: Carrollwood Bicycle Emporium, Chainwheel Drive, Oliver’s Cycle Sports, ABC Bicycles, Trek Store of St. Petersburg, Bicycle Outfitters, The Ironman Store, The Trek Stores of Tampa and Clearwater, Street Fit 360, Just Ride Bicycles and University Bicycle Center.

Clearwater Auto Accident Lawyer and Personal Injury Law Firm, Mark Roman Law Group, www.markromanlaw.com, is committed to cyclists’ rights on the roads of the Tampa Bay Area.

Our traffic laws in Florida do not provide for special treatment or protection of cycling groups, and a group is not considered “one unit” for purposes of stopping at lights and stop signs.

A bicycle is considered a vehicle under Florida law, which means you can get a DUI on a bike.

When you’re riding on a sidewalk or in a crosswalk, you’re considered a pedestrian; when you’re riding on the road, you’re considered a driver of a vehicle. 

Only those under 16 must wear a helmet, and failure to wear a helmet cannot be used to show you were partly at fault for your injuries in case of an accident (BUT THAT DOES NOT MEAN YOU SHOULD NOT WEAR A HELMET).

Police reports are not admitted in evidence in personal injury or death cases; juries or judges must make their own decision about fault based on the evidence (THIS IS ONE OF SEVERAL REASONS NOT TO ARGUE WITH TRAFFIC OFFICERS).

Nationally, the typical bicyclist killed was a man traveling in the afternoon or evening.

Nationally, large expensive motor vehicles, especially freight trucks, are involved in a disproportionately large share of bicyclist deaths.

In the U.S., about one-percent of urban travel is by bicycle, and about 30-percent of Americans are obese. In the Netherlands, 28-percent of urban travel is by bicycle, and 10-percent of their population is obese.

The case involved a husband and wife who sued Ford after the wife was paralyzed in a car accident.  They claimed the accident was caused by a sudden acceleration of their Ford minivan caused by a design defect in the minivan’s cruise control.  Ford, on the other hand, claimed the cruise control system was perfectly safe, and that the accident must have been caused by driver error.  After a four-week trial, the jury found in Ford’s favor.

That would normally have been the end of the dispute.  Trial judges recognize that jurors get to decide the facts and generally don’t second-guess their decisions.  This case was the exception.  In a remarkable and thoroughly documented decision, the judge set out multiple and calculated acts of fraud committed by Ford.  Among the judge’s findings:

1) Ford was warned that electromagnetic interference could cause cruise control to malfunction by one of its own engineers in the mid-70s.  Ford ignored those warnings and did not take available steps to protect against the risk.

2) During trial, Ford argued that a government-funded study supported its claim that sudden acceleration was not caused by any design defect.  The study did indeed reach that conclusion – but only because Ford had misled the study’s authors as well.  The judge found Ford withheld internal reports and studies to basically dupe them into reaching a faulty conclusion.

3) Ford instituted a policy of destroying sudden acceleration reports on its vehicles after one year, even though government regulations require documents concerning vehicle safety to be kept for five years.  Purging of those reports prevented relevant information about sudden acceleration cases from being discovered.

4) Ford claimed laboratory tests showed the electronic components involved in cruise control did not fail.  However, those tests were done only when the electronic components were taken out of the vehicles. This isolated the components from the other systems in the car which could cause electromagnetic interference in the first place.  Therefore, while Ford’s statement was technically accurate, it was completely misleading because the lab tests failed to simulate actual driving conditions.

5) In a supreme irony, Ford’s lawyers insinuated during the trial that the lawyers for the husband and wife had concealed test results from Ford.  The judge found this personal attack was unjustified and “sullied the entire proceedings.”

The judge’s decision shines a light on what lawyers have known for years: corporate defendants sometimes hide evidence and behave badly.  The temptation to conceal evidence is particularly great in product defect cases, where a company could face an expensive recall if their product is found faulty.  We hope the judge’s scathing decision deters large corporations from engaging in fraud and concealment in future cases.

The case is Stimpson v. Ford Motor Company.  The judge was William Swigert, and his decision is dated July 20, 2011.

However, Wal-Mart is not the only recent Supreme Court class action ruling which represents a giant win for corporate America.  On April 27, 2011, the Court decided AT&T v. Concepcion.  The court held that California consumers could not bring a class action against AT&T for fraudulently charging them sales tax on “free” phones.  The decision in that case was at least as extreme and harmful to consumers as the Wal-Mart case, but it has received comparatively little attention.

AT&T began when Vincent and Liza Concepcion, a California couple, bought a cell phone plan from AT&T.  The plan supposedly included a free phone.  The problem was, the phone really wasn’t free – AT&T charged them sales tax on the retail price of the phone.  The Concepcions then sued in California federal court.  Their case was then consolidated into a class action.  That class action, not surprisingly, charged AT&T with fraud and false advertising for charging sales tax on “free” phones.

AT&T’s response was straight out of the corporate playbook: it trotted out the fine print in the Concepcion’s sales contract.  That fine print required disputes to be resolved in private arbitration and prohibited class actions.  AT&T then argued that the case could only be decided through an individual and private arbitration.

The federal trial court and appeals court didn’t buy AT&T’s argument.  Both concluded that the arbitration provision was so unfair under the circumstances (“unconscionable,” to use lawyer speak) that it could not be upheld under California law.  The class action was permitted to go forward.

AT&T may not have had friends in California, but it did have friends in Washington.  AT&T appealed to the U.S. Supreme Court, arguing that its arbitration requirements were perfectly acceptable and should be enforced to thwart a class action.  The Supreme Court agreed.

The Supreme Court’s AT&T decision is like a rotten onion: the more layers you peel off it, the worse it smells.  The court found that federal law favoring arbitration is so strong that it obliterates  the requirement of basic fairness which has always been part of state law.  According to the court, no state laws should stand in the way of ensuring “enforcement of arbitration agreements according to their terms.”

Of course, “terms” are whatever lopsided, anti-consumer provisions AT&T’s legions of attorneys cram into their sales contracts.  But that didn’t bother the court either – it said “the times in which consumers contracts were anything other than adhesive are long past.”  Translation: consumer contracts have been unfair as hell for a long time, and we’re not going to do anything about it, so get over it.

The court then addressed California state law, under which the arbitration provision was too unfair to be enforced.  The court found that no rules of state law could survive if they “stand as an obstacle” to federal law favoring arbitration.  And any pesky state law giving consumers minimal safeguards against overreaching, fine-print contracts is “an obstacle” if it prevents a corporation from dragging a consumer off to arbitration behind closed doors.

The federal law the Supreme Court relied on for these far-reaching conclusions was a seemingly innocuous 1925 law called the Federal Arbitration Act.  The Act has long been recognized as placing “arbitration agreements on an equal footing with other contracts.” 

The problem is that the court’s ruling in AT&T does not put arbitration agreements on “equal footing” with other agreements.  It really enshrines them and makes them untouchable.  While other types of contracts can still be challenged on basic principles of fairness entrenched in state law, arbitration contracts cannot. 

Many states, including Florida, have consumer protection laws that give one the right to sue for false advertising, bait and switch tactics, and other bad behavior by merchants and dealers.  The AT&T decision opens the door for corporations to circumvent those laws simply by requiring disputes to be arbitrated. This may do more harm to consumers in the long run than anything the Court said in the more publicized Wal-Mart case.

But the truth is that many consumer contracts are not just formalities.  They are binding agreements which usually require us to forfeit important legal rights.

As reported in a previous blog (see “Large Corporations are Slamming the Courthouse Doors” (July 30, 2010)), it is virtually impossible to get cell phone service, a credit card, or a job with a corporate employer without forfeiting your constitutional right to a jury trial.  Instead, doing any of those things requires you to submit to “binding arbitration.”  Other common restrictions include strict time limits for making claims or complaints, limitations on the types of damages you can recover, and forfeiture of your right to participate in a class action. 

While there are some exceptions, courts generally will enforce these types of anti-consumer restrictions.  They do this because “freedom of contract” requires courts to enforce agreements that are freely entered into by both parties.  Therefore, you can expect to be bound by agreements you sign, even if you did not read or understand them beforehand.

The concept of freedom of contract is, of course, an important one.  Our entire economic system rests on people being able to make agreements with each other to legally buy goods and services.  However, that well-established principle doesn’t work when it comes to enforcing onerous restrictions buried in the fine print in consumer contracts.

For starters, courts tend to assume that you consciously agreed to all the terms and conditions of any agreement you sign.  This ignores the fact that conscious agreement is impossible when someone doesn’t understand what they’re signing in the first place. 

Suppose you’re buying a refrigerator.  After the salesperson confirms the price, they present you with a contract which contains a fine-print provision waiving “the implied warranty of merchantability.”  As a layperson, you don’t have the faintest idea what you’re giving up when you sign a contract containing this waiver.  This fancy legal jargon (the warranty just means the refrigerator you are buying must work reasonably well) is incomprehensible to you.  Your salesperson probably doesn’t know what it means either.  Yet a court would enforce it against you if there were ever a dispute down the road.

Second, courts start with the assumption that any contract that comes to them for analysis is freely negotiated.  But we all know they really are not.  The truth is that most agreements are presented to consumers as take-it-or-leave-it propositions. 

To use the example from the preceding paragraph, if you actually tried to preserve your right to an implied warranty of merchantability, your salesperson would tell you he or she doesn’t have permission to change the contract.  If you pursued the issue, he or she would tell you that “company policy” requires you to sign the contract as written, and that no one else you could speak to has permission to change it either.  So much for “free negotiation” of contract terms.

Suppose you go a step further and decide you’ll take your business elsewhere rather than sign the take-it-or-leave-it contract.  Good luck finding any business, any where, which will sell you a new refrigerator without putting the same type of contract in front of you and insisting that you sign it.  Freedom of contract is an illusion when everyone who might sell you a service or product insists on the same lopsided terms.

There is no easy answer to this problem.  While there are some federal and state laws that limit how far consumer contracts can go, ordinary people are still largely on their own.  In the current economic and business climate, it seems unlikely that legislatures are going to try and do anything more to level the playing field.  In fact, many seem likely to go in the opposite direction under the guise of ending “excessive regulation.”  Courts, which are bound by precedent and well-established principles of contract interpretation, are not likely to change their approach either.

Until lawmakers and courts catch up to reality, we suggest you take a few steps to try and protect yourself.  These include reading agreements before signing them, asking questions about terms you don’t understand, and being willing to walk away if you realize you’re not being treated fairly.  In rare cases, you may find that terms actually are negotiable.  If not, you can at least make an informed decision about whether to go through with the transaction or not. 

The old maxim of buyer beware still applies today.  You should always keep in mind, regardless of what you’re told, that the fine print really does matter.

Delay obviously didn’t like courts.  He made this comment even before he was convicted in court of money laundering and sentenced to prison.  A similar contempt for courts appears to be the common thread running through several bills recently proposed here in Florida.

Rick Scott and his allies were elected last November on a platform of getting Floridians back to work.  But politicians don’t seem interested in jobs right now.  Instead, our lawmakers have spent a big chunk of this legislative session considering sweeping changes to Florida’s court system.  These include bills, or proposals within bills, to expand the Florida Supreme Court and split it into two divisions, change the process by which judges are appointed, change court system funding, and give the legislature oversight over changes in court rules.

Matt Gaetz, a Republican representative from Destin, sponsored the bill to change the appointment of judges.  His bill would eliminate the Florida Bar’s role in recommending people to be on the panels that nominate candidates to be judges (the judicial nominating commission).  It would also replace every existing member of the panels with new members chosen by the governor.

If this bill passes, of course, the governor will simply be able to choose people who agree with his ideology.  The governor’s ideological allies will then make all the critical decisions about who becomes a judge in Florida’s court system.

Gaetz made no apologies for the power grab his bill represents:

The accusation that this bill is political, I’ll confess to that . . . [R]ight now we have a lack of that political accountability, and the bill restores it.

Similar ideas about the court system appear to be driving the debate over court funding.  Gerald Kogan, a former justice of the Supreme Court, said many lawmakers believe courts are no more than “an agency of the legislature” because the legislature provides their funding.  Kogan lamented the fact that so few legislators seem to understand that courts are a separate and co-equal branch of government.

We are, as any student of civics learns, a nation of laws.  An independent judicial system is critical to the functioning of our system of government.  However, many members of our legislature do not seem to respect this separation of powers.  Instead, they consider the court system an obstacle to their agenda which can be brought to heel through punitive budgeting or “reorganization” schemes.

In the long run, trying to make judges bend to political whims is short-sighted.  Swings in voter preferences mean a party in power may find itself out of power within a few years.  When that happens, that party’s members may not like judges being pressured to follow someone else’s political agenda.  In other words, what comes around can indeed go around.

We are pleased to report that the bill will not become law during this session.  The bill’s sponsor, Representative Dennis Baxley of Ocala, asked that it be “temporarily passed” on Monday.  Sponsors sometimes make the tactical decision to withdraw a bill when they realize they don’t have the votes to get it passed.  We don’t know Baxley’s thought process, but he may have seen the writing on the wall.

Two things stuck out from the thicket of testimony favoring and opposing the bill:

●Supporters of the bill did not offer evidence.  The insurance industry stuck to its playbook and tried to convince lawmakers that current law is causing a crisis.  However, they offered no data or other concrete evidence to support this claim.  Instead, most of the supporting testimony consisted of self-serving anecdotes about individual cases.  Legislators heard tales of insurance adjusters fleeing the state in fear, insurance companies begging to settle cases but being refused, and cases involving multiple parties dragging on for years.  However, the poor-insurance-industry theme did not resonate.  In fact, it seemed shrill and far-fetched.

●The bill was larded up with overreaching provisions.  Opponents of the bill pointed out that it went far beyond fixing alleged flaws in the current system.  They explained that under the guise of leveling the playing field, insurance companies were really trying to give themselves a slew of “get out of jail free” cards.  When Representative Baxley withdrew the bill, he essentially acknowledged this by saying, “I’m sorry I couldn’t bring you the perfect bill.”

This was an important victory for insurance policyholders and other ordinary Floridians.  At the same time, this fight is probably far from over.  The insurance lobby will likely regroup and start trying to line up votes for the next session.  Some of the more egregious provisions in the bill may be eliminated to make it appear more reasonable. 

More fights are on the horizon.  But for now, we remain thankful to those who stood up to the insurance industry on this bad bill.

Current law requires an insurance company to act in good faith and protect the person or business it insures.  If a jury finds it did the opposite – acted in bad faith – it has to pay for the legal consequences of its wrongful conduct.  This legal principle has been established in Florida for decades and has been a powerful deterrent to insurance company misbehavior.

This is not to say that insurance companies always lose bad faith cases.  They can and do win them regularly in Florida courts.  Members of juries have shown themselves capable of understanding the difference between cases of true bad faith and cases of innocent or isolated mistakes.   Juries do not automatically find against insurance companies, and the current legal standards work well for everyone.

In spite of that, a new bill in the Florida legislature proposes substantial changes to this law.  Actually, “changes” may be too weak a word, because the new law would completely gut an insurance company’s duty to act in good faith.  There are so many exceptions, obligations imposed on others, and “safe harbors” crammed into the bill that it would make insurance bad faith virtually extinct.

These changes will not just eviscerate the rights of people injured by the wrongful acts of others.  They will also hurt people and businesses who could have previously expected their insurance companies to protect them.  

In other words, the proposed changes only shield insurance companies.  They do nothing for people paying the premiums to those companies for liability protection.  That means that if an insurance company fails to settle a claim and protect its policyholder, it will be protected from the consequences of that failure. However, the policyholder will not.

To illustrate what this means, suppose you are the owner of a plumbing business.  You have 15 employees and several work vans.  On the way to a job site, one of your employees carelessly runs a red light, causes a terrible car accident, and renders a young man quadriplegic.  Your employee’s fault for the accident is clear, medical care for the paralyzed man will cost millions of dollars, and the validity of the claim in undisputed. 

Nightmare scenarios like this are what lead people to buy insurance in the first place.  They pay premiums with an understanding that their insurance company will protect them from financial disaster. 

Unfortunately, under the new law, only the insurance company would get a pass.  If it fails to properly protect you, you’ll get hit with a financial liability which will ruin your business.  But the insurance company will walk away, insulated from liability by the gift from our lawmakers in Tallahassee.

It’s hard to conceive of a bigger sellout to the big insurance lobby.  Of course, this is the same legislature St. Petersburg Times columnist Howard Troxler recently referred to as the “utter Whore of Babylon.”  Troxler said this because it just resurrected a law allowing direct payments by interest groups and lobbyists into campaign slush funds run by legislative leaders.  Troxler explained that these slush funds (euphemistically called “leadership funds”) will result in our elected representatives “walking around with open gunny sacks, selling the democracy, frankly, proudly, wickedly, shamelessly, [and] amorally.”  Troxler argued the funds will essentially institutionalize bribery and corruption. 

If this is what our democracy looks like, it’s no surprise that the big insurance companies have been able to push for these changes.  Nonetheless, we believe there are still enough legislators on the side of ordinary Floridians to defeat them.  We urge everyone to contact their legislators and tell them big insurance does not need a handout.  We also urge you to visit the website for Taxpayers Against Bad Faith, www.taibf.com, to get more information about the proposed changes and how you can help stop them.

Eliminate PIP

The only way to fix the problem with Florida car insurance is to eliminate PIP (personal injury protection) benefits completely. The commonsense approach to the problem is to make significant bodily injury liability coverage mandatory and scrap the no-fault plan. It isn’t working.

PIP spawned cottage industries which would not exist but for PIP benefits. Were our legislators serious about curbing “PIP mills” and 1-800 numbers enticing the public with false promises of large sums of money, PIP would be the first to go. PIP fraud (which is greatly exaggerated) would cease to exist.

The public shouldn’t shed any tears for big insurance. Their man, the new governor, runs the show now. By the time the session ends, it will feel like Christmas again for insurance companies in the Sunshine State.

Mark Roman, Clearwater

●          30-percent of people under 30 had sent text messages while driving;

●          41-percent of people over 30 had used a handheld phone while driving; and

●          9-percent of people over 30 had sent text messages while driving.

The survey was fielded in November 2010, was nationally representative, and involved 1,026 people responding.

The driving habits themselves were not the only worrisome thing.  Only 30-percent of people under 30 believed it was very dangerous to use a handheld phone while driving.  Only 36-percent in that age group were “very concerned” about the problem of distracted driving.  This suggests that many young drivers consider it normal behavior and are resigned to it.

If distracted driving becomes accepted, we will all be putting ourselves at great risk on the road.  According to the Department of Transportation, 5,500 deaths and almost half a million injuries related to distracted driving occurred in 2009.  This means 15 deaths, and almost 1,370 injuries, every day of the year.  Car crashes generally are the leading cause of teen deaths, and with such high rates of distracted driving, that is unlikely to change any time soon.

The Department is undertaking a campaign to educate parents, teachers, and teens about the dangers of distracted driving.  We hope this will eventually reduce dangerous habits, just as campaigns about the dangers of drunken driving have done in the past.  In the meantime, we encourage all parents to be a good example for their children by not texting or using a handheld phone when they’re behind the wheel.

More information is available at the Department’s web site, http://Distraction.gov, and the Consumer Reports website, http://www.consumerreports.org/distracted.

What almost never gets mentioned in public transportation debates like this one is safety. In fact, I haven’t heard one word about this subject in the entire bullet train discussion. But as a lawyer who regularly see the cost of car accidents in death, injury, and property damage, I think it’s worth considering.

The first point is that motor vehicle travel is dangerous compared to other forms of transportation. In fact, it is the most dangerous thing most of us do in our daily lives. As I reported in a previous post (see “New Study Shows Staggering Costs of Car Accidents”), the cost of motor vehicle accidents in the United States each year is more than $99 billion. The U.S. Supreme Court has lamented “the slaughter on the Highways of this Nation” which “exceeds the death toll of all our wars.”

Conversely, there is no question that train travel is much safer than travel by automobile. While comparisons in the United States may not work because so few Americans ride the rails, comparisons from countries with extensive train travel are revealing. Great Britain, for example, has a well-developed and often-used rail network. Train travel there is 25-times safer than auto travel.

The dangers of driving while texting, intoxicated, or fatigued are well-known. While people should never do those things while driving, we know some do. So it’s worth pointing out that those behaviors are not at all dangerous when one is taking a ride on a train, bus, or other public transport. Providing a way to move people who would otherwise take unnecessary risks behind the wheel makes sense. Even if one takes the harsh view that such people “deserve” to be punished for their misdeeds, innocent people who might be involved in accidents with them do not.

This is not to say that every proposed form of public transportation should be funded. Many public transportation projects may not make sense for economic or other reasons. All I’m suggesting is that the discussion should go beyond the usual ideological talking points and include safety. Also, when people are considering cost, they should also think about the hidden costs of death, disability, and property damage caused by leaving so many cars on the road.

The Institute’s title makes it sound like an academic think tank.  It is not.

The Institute was formed by the Florida Chamber of Commerce in 2005.  It claims that its mission includes fighting “wasteful civil litigation through legislation,” which basically means changing our judicial system in a way which favors big business.  The Institute’s partners listed on its website include groups like the Florida Petroleum Council, Florida Banker’s Association, and Florida Trucking Association.

Among the Institute’s many complaints is that Florida’s court system is an example of “broken justice” which “ranks 42^nd in the nation.”  This is a pretty serious accusation, so it’s worth taking a moment to understand exactly what it means.

First, Florida’s ranking of 42^nd is not the result of a university study or judge’s poll.  Rather, it comes straight from the Institute’s national counterpart, the U.S. Chamber of Commerce’s Institute for Legal Reform.  As it turns out, the ranking represents nothing more than the collective opinions of corporate lawyers, along with senior executives “who indicated they are knowledgeable about litigation matters” and whose companies make “at least $100 million in annual revenues.”

One could reasonably ask whether the opinion of this tiny sliver of the American ruling class should be considered an objective evaluation of anything.  It’s also reasonable to ask whether drastic changes in law should be made based on their wishes.  In fact, common sense suggests the interests of this elite group may differ a great deal from the interests of middle class Americans.

Furthermore, the complaints that members of the corporate elite make about the justice system are often misleading.  To give just one example, a task force was recently convened by Governor Scott to study regulatory reform.  A subgroup of that team assigned to consider tort reform made recommendations to Scott when he came into office.  As part of its findings, the task force presented a graph showing that case filings in Florida circuit courts have increased by 52-percent in about the last 10 years.  Naturally, the suggestion was that the increase validates the “judicial hellhole” label.

However, when one really examines the data, the story is quite different.  The increase in court filings shown was for all cases filed in Florida’s circuit court system.  This includes criminal cases, family law cases, wills (probate) cases, and civil cases of all varieties.  The increase in the total number of cases filed in court is in no way an indication that more personal injury or death cases are being filed.

When one looks at civil cases alone, it becomes even more clear that personal injury claims are not causing a “lawsuit crisis.”  An analysis of Florida civil cases by category shows that while mortgage foreclosures have increased greatly, other civil case filings have not.

In reality, on a per capita basis, tort lawsuit filings were down 18.8-percent from April 2000 to April 2009 across the board.  Filings of every individual category of tort claim decreased per capita in that time period as well.  Specifically, medical malpractice cases were down 49.4-percent, product liability cases were down 76.6-percent, auto negligence cases were down 4.3-percent, and other negligence cases were down 17.7-percent.

With statistics like these, the Institute and corporate America should already be thrilled with their “progress.”  But instead of acknowledging what the data really shows, they continue to present it in a misleading way to further their agenda.  Keep that in mind when Governor Scott and his corporate allies talk about closing the courthouse doors.

Another observation which may not get as much attention relates to oil spill liability.  In discussing that topic, the Commission described exactly the reason why caps on liability are bad policy.  It said the spill’s victims or federal taxpayers should not “have to pay the bill for industry’s shortcomings.”  According to the Commission, increased liability limits “would also serve as a powerful incentive for companies to pay closer attention to safety, including investing more in technology that promotes safer operations.”

As the Commission recognized, caps do not make disaster costs go away.  The families of the workers killed in the Deepwater Horizon explosion must still be supported financially, and the enormous costs of environmental cleanup must still be paid for by someone.  Caps just shift these costs from the party or parties directly responsible to the taxpayers.

This is not just true for liability caps under oil pollution laws.  When a person is seriously injured or killed, whether it is through an auto accident, medical malpractice, or a workplace hazard, someone has to pay for medical care or financial support.  The question is not whether the financial burden exists; it does.  The only question is who should pay for it.

There could not be a worse time for shifting costs from private industry to taxpayers.  Unlike ordinary Americans, large corporations have recovered nicely from the affects of the recession.  They are sitting on enormous cash reserves.  Federal and state governments, on the other hand, are drowning in debt.  Putting more liabilities on taxpayers to make life easier for private industry in these times is financially suicidal.

The Commission’s point about safety is also important.  The threat of liability for injury or death claims, in the Commission’s words, create a “powerful incentive” to improve worker safety.  Conversely, liability caps reduce a company’s incentive to strive for a better workplace.  For-profit corporations, by their very nature, exist to make money.  The best way to make them behave responsibly is to take the profit out of cutting corners in a way which puts others at risk.

The oil spill, the Massey mine disaster, phony documents used by banks in foreclosure cases, and the sudden acceleration problem with Toyota vehicles, were all major news stories last year.  To see why liability caps are bad public policy, all you had to recently was read a newspaper.

One thing that gets mentioned less, but is also critical, is flexibility.  Civil trials can be messy affairs, and they rarely go according to script.  In the real world, witnesses say unexpected or baffling things.  Judges make rulings which restrict one’s ability to introduce evidence.  Delays and scheduling problems throw off the timing of calling witnesses.

Another variable is the “temperature in the room.”  In some cases, I’ve prepared a blistering cross examination of an opponent’s expert witness.  Fearing that the witness would try to trash my entire case, I got ready to hit back just as hard.  Then when the witness actually testified, they came across as fairly reasonable and non-partisan.  I ended up having to throw out the script and perform a more low-key cross examination.

In the same vein, a lawyer should be careful to treat each witness differently.  An elderly woman who witnessed a car accident on her way home from church should usually be treated gently.  A convicted felon who causes a drunken driving accident deserves little or no respect.

A skilled lawyer might also decide on the spot to ask additional questions of a witness who appears to have grabbed the jury’s attention, while cutting questioning short for a witness who has not. Again, one cannot just blunder along without paying attention to how evidence is being received.

This is not to say, however, that the twists and turns of trial make preparation futile. Preparation actually aids flexibility.  A lawyer with a full command of the facts can shift gears much more easily than one whose knowledge is superficial.  If you have done enough preparation to know what questions can safely be asked of a witness, it is much easier to adjust your approach.  Obviously, experience helps in these situations as well.

Trying cases is as much an art as a science.  An ability to roll with the punches and adapt is important.  That is one more reason why people should consider a lawyer’s trial experience when making decisions about who should represent them.

Gearlink Racing, Inc. was founded in 2008 and is comprised of over 80 members. Gearlink members include riders from 21 years old to 66 years old with several State and National level riders in road, mountain and triathlon.

Mark Roman and Morgan Gaynor, both avid recreational cyclists, recognize the importance of the “Share the Road” concept which ensures safety for cyclists on Florida roads.   Mark Roman Law Group recognizes the importance of the message that it is our duty as drivers to share the road with bicyclists.

“We are proud to have the experience and support of Mark Roman Law Group,” said Jared Zimlin, President of Gearlink Racing, Inc. “Their support not only helps us achieve our goals of competing in the top races in Florida, but also provides a platform to spotlight the need for protection when it comes to cycling.”

Mark Roman Law Group is a Clearwater Personal Injury Law Firm specializing in civil trial law involving auto and bicycle accidents, and serious accidents involving injury or death.   Mark Roman and Morgan Gaynor are both Board Certified Civil Trial Lawyers.   Less than 2% of all Florida lawyers hold this certification.

If you are someone you love has been injured seriously in a car or bicycle accident, please visit www.markromanlaw.com to learn more about this firm.  Mark Roman Law Group… We Really Care.

Contact:

Mark Roman Law Group
727-725-7661
http://www.markromanlaw.com