Florida Real Estate Finance and Foreclosure

Florida Real Estate Financing and Foreclosure
Law Offices of Michael D. Stewart
866-438-6574
www.TheMiamiLaw.com

Florida is a lien theory state wherein when one obtains a mortgage
from a bank, the bank retains a lien on the property, but has no right
to possession of the property. This is contrary to a title theory
state, wherein the bank, or mortgagee, receives title to the property
through the mortgage. If the mortgagor, or person who obtained the
home loan, defaults on the loan, the mortgagor has the immediate right
to possession of the property.

When borrowing money in Florida to purchase a home, the borrower
signs a promissory note which is the promise to pay the debt. The
note states the interest rate, repayment schedule, and other terms.

A mortgage is the contract between the bank and the homeowner which
pledges the property as security for payment of the debt. The
property is the collateral for the loan. A mortgage must be in
writing, provide the legal description of the property, and be signed
by both parties, amongst other things.

The mortgage and promissory note contain important terms concerning
what happens if the borrower defaults on the payment under the
mortgage. For instance, with an acceleration clause, if the borrower
misses a payment, the lender has the right to call due all remaining
payments immediately, something which would probably be very difficult
for a borrower to achieve.

Further, an alienation clause provides that if the borrower transfers
his or her interest in the property, the full balance is due and
payable to the lender. In practice, however, the bank will not always
do this, though they might have the right to depending on the
circumstances of the case.

An escalator clause allows the lender to increase the interest rate on
the loan if the borrower defaults. A prepayment clause allows the
borrower to pay off the full loan early, without penalty.
There are a variety of different types of ways to pay your mortgage.
The first is a fixed rate mortgage where the interest rate is fixed
for the term of the loan, such as for 30 years.

Another type of mortgage is the term mortgage where the borrower makes
only interest payments on the loan and then later pays the full amount
at the end of the term – known as a balloon payment.

An adjustable rate mortgage (ARM) is where the interest rate is tied
to some type of financial index so that the interest rate on the loan
increases or decreases in step with the index. If the interest rate
rises, the borrower’s has to make higher mortgage payments. If the
interest rate falls, the borrower’s payments are less.

ARMs can lead to an unfortunate event, well known now in Florida and
other parts of the country, called negative amortization. When the
interest on an ARM rises too fast, what the borrower is paying may be
less than what is owed on the interest payment. The unpaid interest
is then added back onto the loan balance, causing the loan balance to
rise and the interest charged on the new higher balance to rise as
well, or negatively amortize.

When a borrower fails to timely pay their loan and is in default, the
lender has the right to file a foreclosure action against the borrower
in circuit court. The lender will file a Complaint outlining how the
borrower failed to pay the lender as agreed. A copy of the mortgage
and the promissory note will likely be attached to the Complaint.
Thereafter, the borrower has twenty (20) days to file either a Motion
to Dismiss the Complaint or an Answer to the Complaint outlining why
the borrower is not in default and why the lender did not have the
right to file the foreclosure. The borrower’s attorney can also
prepare Affirmative Defenses to the action for foreclosure. At the
same time the borrower can also demand that the lender provide proof
of the amounts owed to the lender under what is called Discovery.

Discovery consists of Requests for the lender to produce documents
concerning the case, Requests for Admissions from the lender
concerning certain aspects of the case, and Interrogatories, or
questions that the lender is required to Answer under oath. Finally,
the borrower can conduct depositions or in person interviews under
oath with relevant workers for the lender in order to gain evidence to
be used in its defense of the case.

Once the evidence is collected, if the lender believes that there are
no material issues of fact that require a trial, they will file a
Motion for Summary Judgment, which essentially outlines to the judge
why a trial is not necessary. If the borrower successfully overcomes
Summary Judgment, the case will proceed toward the judge’s trial
docket.

In the meantime, the borrower will have been negotiating with the
lender in an attempt to modify the loan terms. In Florida, given how
the market has dropped, many homes are not worth the amount owed to
the lender. In this case, the lender will argue to obtain a reduction
in the principal amount owed to the lender to get the loan more in
accordance with the current fair market value of the home. The
interest rate, past due fees and other terms can also be negotiated
with the lender.

Another option is for the borrower to attempt to obtain a buyer for
the property who is willing to buy the property for less than what is
owed to the lender – called a Short Sale. In a Short Sale the lender,
in an attempt to avoid the litigation and to avoid owning a property
they will have to maintain (real estate owned), will need to agree to
the amount it is willing to accept in a short sale. An important
issue in a short sale is assuring that the lender cannot later come
after the borrower to collect a deficiency judgment, or the difference
between what is owed to the lender and the amount the home was sold
for.

Another alternative, is to merely negotiate with the bank to give them
back the property in an attempt to avoid a later lawsuit for the
deficiency judgment. This is known as a deed in lieu of foreclosure.
Also, currently in Florida, lenders are accepting the deed to the
property and agreeing to allow the borrower to remain in the home –
known as a deed for lease.

Copyright Law Offices of Michael D. Stewart, 2012
866-438-6574
www.TheMiamiLaw.com

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Personal Injury Negligence Animal bites

Although cats and dogs may seem like”man’s best friend” and harmless, these animals do sometimes attack people. It is very important from a legal standpoint to keep your pet under control and from attacking another person. Animal attacks can lead to physical and mental injuries to the person attacked.

Injuries from Animal Attacks

Dogs, cats and other household pets still have sharp teeth and strong jaws that help them bite prey as they are still carnivores at heart. Vicious or untrained animals can use these sharp teeth against another person or child, physically injuring them. These attacks can leave the victim with injuries such as:

Bleeding/loss of blood
Broken/fractured bones
Muscle damage
Nerve damage
Scars
Infection
Another common problem associated with animal bites is infection. These bites often occur to the hands, arms and legs where there are many blood vessels near the skin. These bites into the blood vessels can spread bacteria from the animal’s mouth into your bloodstream causing infection and/or making you very sick.

One potentially and common dangerous infection is rabies, which can be deadly to the human victim if allowed to spread. It is also important that pet owners properly vaccinate their pets against rabies so that they cannot spread it to humans, even if the pet did bite.

Florida Follow a concept of “strict liability for dog bites, meaning that the owner is strictly liable for any bites caused by their pet.

Florida’s dog bite statute imposes strict liability upon dog owners for a bite that causes injury to a human being. Section 767.04 states as follows:

The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owners’ knowledge of such viciousness. However, any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed to the biting incident. A person is lawfully upon private property of such owner within the meaning of this act when the person is on such property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or when the person is on such property upon invitation, expressed or implied, of the owner. However, the owner is not liable, except as to a person under the age of 6, or unless the damages are proximately caused by a negligent act or omission of the owner, if at the time of any such injury the owner had displayed in a prominent place on his or her premises a sign easily readable including the words “Bad Dog.” The remedy provided by this section is in addition to and cumulative with any other remedy provided by statute or common law.

The “Bad Dog” Exception to Liability Under Fla. Stat.

The Florida dog bite statute, 767.04, has an exception that states that there is no liability under the statute if the dog bite victim is 6 years of age or older, the bite occurred on the dog owner’s premises, and those premises contain a conspicuously posted sign stating the phrase “Bad Dog.” The exception applies if the sign says “Beware of Dog.” Romfh v. Berman, 56 So.2d 127 (Fla. 1951). The sign must be in a prominent place and easily readable, so as to give actual notice of the risk of bite to the victim. Carroll v. Moxley, 241 So.2d 681 (Fla. 1970). If the victim is too young to read the sign, then the exception does not apply. Flick v. Malino, 356 So.2d 904 (Fla. Court of Appeal, 1978).

Children and Dog Bites

Two issues often come about when a child is the victim of a dog bite.

First is the issue of comparative negligence, when the child’s acts/conduct provoked the dog, thus the child being a cause of the accident and reducing the recovery. Florida has found that a child under 6 years old is presumed to be incapable of committing such negligence. Swindell v. Hellkamp, 242 So.2d 708 (Fla. 1970). When the child is 6 years or older, the jury decides whether the child was capable of appreciating the danger and being able to avoid the danger. Turner v. Seegar, 151 Fla. 643, 10 So.2d 320 (1942).

The second issue is whether the injured child’s recovery should be reduced by a parent failing to adequately supervise the child, thus making the parent a cause of the accident. The jury is entitled to apportion fault to the parent, even where the parent is not named as a defendant in the lawsuit. Y.H. Investments, Inc., v. Godales, 690 So.2d 1273 (Fla. 1997).

Landlord Liability for Dog Bites on Premises

A landlord has a duty to protect its tenants when landlord has knowledge of a vicious dog on the premises. The Florida 4th DCA stated: A landlord who recognizes and assumes the duty to protect co-tenants from dangerous propensities of a tenant’s pet is required to undertake reasonable precautions to protect co-tenants from reasonably foreseeable injury occasioned thereby.” White v. Whitworth, 509 So. 2d 378, 380 (Fla. 4th DCA 1987); see also Vasquez v. Lopez, 509 So. 2d 1241 (Fla. 4th DCA 1987) (holding that landlord may be liable for tenant’s dog if landlord knows dog is vicious and has sufficient control of premises to protect plaintiff).

When a lease agreement specifically prohibits particular breeds of dogs, the landlord can be liable if these rules are not enforces knowing one of these breed are on the premises. In Ramirez v. M.L. Management Co., Inc., 920 So.2d 36 (Fla. 4th DCA 2005), the landlord was aware that a tenant’s pit bulls had threatened other persons on the premises, but the landlord did nothing to remedy the situation. When the dogs attacked a child on a neighboring property, the landlord was held liable.

There might not be liability where the dog bite victim is a trespasser or exceeded their invitation to be on the property. In Anderson v. Walthal, 468 So. 2d 291 (Fla. 1st DCA 1985), a woman went to a personal residence for a business purpose and when she went around the back of the house a dog bit her. The landlord aruged that the woman had exceeded her invitation by wandering into the backyard where the dog was. The court claimed that the woman had exceeded her “invitation” by wandering into an area behind the home where the dog was located.

Negligence and Alternative Causes of Action

Negligence is another ground for liability in Florida, which is the lack of ordinary care. Negligence, one of the common law remedies, are an alternative to the dog bite statute in Florida. Stickney v. Belcher Yacht, Inc., 424 So. 2d 962 (Fla. Court of Appeal, 1983).

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Slip and Fall Accidents in Florida

SLIP AND FALL ACCIDENTS IN FLORIDA

Law Offices of Michael D. Stewart

www.TheMiamiLaw.com

866-438-6574

A slip and fall personal injury matter in Florida occurs when one is injured by falling due to some condition in a property that the one in control of the property had a duty to make and keep safe. Slip and fall injuries occur from the proverbial slip on a banana peel, to falling down on unreasonably dangerous stairs.

In general, to prove a personal injury slip and fall matter in Florida it is necessary to show that 1) the defendant was the owner and was in possession of the property where the fall occurred, 2) the property was used as, for example a supermarket, 3) the plaintiff entered onto the property for a legal purpose, which then created a duty on behalf of the property owner to make the property safe, 4) there was a dangerous condition on the property that the defendant either knew about, such as a crack in the floor, or should have known about due to the passing of time, such as a water spill, and 5) due to the dangerous condition, the plaintiff fell and was injured.

All owners of properties owe a duty to their invitees to use reasonable care to keep their premises in safe condition. Everett v. Restaurant & Catering Corp., 738 So.2d 1015, 1016 (Fla. 2d DCA 1999). Despite this, the general rule is that when there is slippery substance on the floor, such as a water spill, the injured plaintiff will need to be able to prove that the owner of the property knew about the water spill and failed to clean it up, or alternatively, that due to the passage of time, the owner should have know of the water spill. Premises like supermarkets have a duty to monitor their stores and set cleaning and maintenance schedules to look for things such as water spills. Further, in the instance of a water spill, the premises owner might still be liable even if they put up a sign that said “Danger, wet floor”, if a reasonably prudent supermarket owner would have cleaned up the spill immediately.

To prove that the owner knew of the water spill, circumstantial evidence will need to be proved by the plaintiff showing that 1) the dangerous condition was present for such a length of time that a premises owner in the exercise of reasonably prudent care would have known about the condition, or 2) this type of dangerous condition, such as a water spill, occurred with such regularity that it was reasonably foreseeable that such a condition would be present and that the owner should have taken action to prevent it. With respect to the second condition, in the example of a supermarket, spills are bound to happen and products, such as fruit, are bound to fall on the ground, creating dangerous conditions. It is the duty of the supermarket operator to maintain the premises and clean them with sufficient regularity to protect the public.

According to Charles W. Ehrhardt, Florida Evidence Section 301.1 (2000 ed.), premises liability cases involving transitory foreign substances are the right type of case where the burden of proof should shift to the store owner to prove that it used reasonable care in maintaining its premises, thus eliminating the requirement that the plaintiff prove that the store owner had constructive knowledge of the dangerous condition prior to the matter going to trial before jury. This shifting burden is based on fairness and public policy. There is therefore a rebuttable presumption in a slip and fall case that the store did not exercise reasonable care in its maintenance of the premises. See Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 331 (Fla. 2001). See also Florida Statutes Section 768.0710 (2005).

With respect to slip and fall injuries at amusement parks, a particularly relevant issue in the Sunshine State, the Florida Supreme Court created a special rule by imposing a higher duty of care for owners and operators of amusement parks to the public. With amusement park injuries, the parks have a continuous duty to maintain the safety of their patrons and can be liable even without notice or knowledge of the dangerous condition that caused the fall as long as they are considered negligent in their maintenance and supervision of the park.

Law Offices of Michael D. Stewart

www.TheMiamiLaw.com

866-438-6574

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Negligent Hiring and Retention in Florida

Negligent Hiring and Retention in Florida
LAW OFFICES OF MICHAEL D. STEWART
866-438-6574
www.TheMiamiLaw.com

In Florida, an employer in certain circumstances can be held liable
for the injuries caused by their employees. This usually occurs under
a theory of respondeat superior when the employee is acting within the
scope of the employment. Thus is if a moving company employee is
involved in an accident while delivering furniture, the injured
plaintiff could sue both the employee and the employee’s company. A
different question is raised, however, when an employee commits an act
independent of the work he is hired to do, such as assaulting a member
of the public at the place of business.

In these circumstances, the employer can be held liable for the
independent acts of the employee under a different set of rules.
Generally in Florida, there is no duty to control the conduct of a
third party, such as preventing them from another, unless there is a
“special relationship” between the parties. In other words, there is
no duty unless:

a) a special relation exists between the actor and the third parson
which imposes a duty upon the actor to control the third person’s
conduct or b) a special relation exists between the actor and the
other which gives the other a right to protection. K.M. ex rel. D.M.
v. Publix Super Markets, Inc., 895 So.2d 1114, 1117 (Fla. 4th DCA
2005).

Florida generally holds that in the case of willful torts of
employees, the employer can be held liable if they know or should have
know of the danger of the employee to others, – i.e. it was reasonably
foreseeable that the employee could be a danger to others. This leads
to the question of whether the employer has seen the employee commit
bad acts in the past, or whether the employer has done a sufficient
background check on the employee to be on notice of the employees
propensity to commit such acts.

Negligent retention of an employee occurs where the employer was
aware or should have become aware of issues with the employee which
could cause problems to third parties, but fails to take actions such
as further investigation, firing or reassignment of the employee for
the protection of third parties.

The difference between negligent hiring and negligent retention is
based on the timing in which the employer know or should have known
about an issue with the employee. With negligent hiring it will be
argued that the employer did not conduct a sufficient background check
on the employee, and that this negligence led to a problem with a
third party. Negligent retention is when the employee has caused or
is likely to cause a problem with a third party but the employer
failed to take action at this point.

Often, when an attorney is confronted with filing a lawsuit against
an employer, various causes of action may be brought at once,
negligent hiring, negligent supervision, negligent retention, and
vicarious liability.

If you have been injured, contact the Law Offices of Michael D. Stewart at:
866-438-6574
Or visit us on the Internet at:
www.TheMiamiLaw.com

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Strict Liability Florida – Products Liability – Personal Injury Law

Strict Liability in Products Liability Cases in Florida
LAW OFFICES OF MICHAEL D. STEWART
866-438-6574
www.TheMiamiLaw.com

Generally in Florida, Strict Liability seeks to hold one liable
without regard to fault. In products liability, the manufacturer,
distributor and retailer of a product which is defective can be held
liable for injuries caused by that product without respect to fault on
behalf of the companies. It must be proven that the defect existed in
the product for each of the companies throughout the distribution
chain when the product left their control.

In order to hold a company or companies in the distribution chain
liable under a theory of strict liability in a manufacturing defect
lawsuit, it must be proven:

1) the manufacturer or other company’s relationship to the product,
2) a defect in the product and the defect causes an unreasonably
dangerous condition,
3) the defect was the cause of the user’s injuries.
A product can be considered defective:
a) because of a design defect,
b) a manufacturing defect,
c) or an inadequate warning on a product.

With respect to failure to warn, negligence is not necessary. Indeed,
manufacturers are held to a higher standard than under a negligence
case (duty, breach of the duty, cause of injury, damages). Florida
states that it needs only be shown that the defendant did not
adequately warn of known or knowable dangers. A product is said to be
defective “when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the provision of reasonable
instructions or warnings”, and that by not providing the warnings
“renders the product not reasonably safe”. Scheman-Gonzalez v. Saber
Mfg. Co., 816 So.2d 1133, 1139 (Fla. 4th DCA 2002).
As to the failure to warn in the distribution chain, Union Carbide
Corp. v. Kavanaugh, 879 So.2d 42, 45 (Fla. 4th DCA 2004) looks at:

1) the danger of the product,
2) how the product is used and/or intended to be used,
3) the sufficiency of the warnings given,
4) a cost benefits analysis to the company for giving the warnings
5) the likelihood that the warnings will reach the foreseeable user
of the product.

Note that public policy does hold that if the defect is so obvious,
the manufacturer cannot be held liable. Further, in Florida, there is
no cause of action for negligent distribution of a non-defective gun.

Also, even in the context of strict liability, comparative negligence
of the consumer may kick in if the consumer failed to use normal care
in the handling of the product.

Strict liability can be a powerful weapon in a products liability
case as the plaintiff only need show that a product was defective and
caused injury and that the defendant is responsible. Further, all
companies in the distribution chain can be sued providing for
increased ability to recover damages for the plaintiff. Further, in
certain cases if it can be shown that the defendant know about the
defect and failed to take action to warn of the defect or to protect
the consumer from the defect by taking corrective action, punitive
damages could be available to the plaintiff.

Copyright LAW OFFICES OF MICHAEL D. STEWART 2012
866-438-6574
www.TheMiamiLaw.com

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Florida Escrow Deposit Disputes – Real Estate Law

FLORIDA ESCROW DEPOSIT DISPUTES
Law Offices of Michael D. Stewart
www.TheMiamiLaw.com
866-438-6574

The Florida Statutes and Administrative rules provide procedures
governing how one holding an escrow deposit should handle a dispute
between buyer and seller.

According to The Florida Real Estate Commission (FREC), real estate
sales agents must give their broker funds received in connection with
a real estate deal no later than the end of the next business day
following receipt of the funds. The broker then has three (3) days to
place the funds in his or her escrow account.

A problem arises for the broker and for the other party when one of
the parties to the real estate transaction breaches the purchase and
sale agreement and wants to back out of the deal. Usually, the
Purchase and Sale Agreement will late out the procedures to be
followed in the event of a dispute.

The broker is charged with ultimate responsibility for the funds held
in his or her escrow account, and if the broker were to release the
funds to one of the parties who it is later revealed was not entitled
to those funds, the broker could be held liable under the law.

Therefore, the broker will be faced with a number of choices when one
or both parties, buyer and seller, demand the real estate deposit.
The first option is to give it to the party the broker believes is
entitled to the money. Assuming the broker is not an attorney, this
can lead to problems for the broker as there may be legal issues that
the broker has not considered.

Another option is for the broker to file an interpleader lawsuit,
whereby the broker brings both the buyer and the seller into a lawsuit
to determine who is entitled to the funds. Additionally, the buyer or
seller on their own accord could also file an interpleader lawsuit
against the other to determine the proper disbursement.

Another option for the broker is to notify FREC of the dispute and
request that FREC issue an escrow disbursement letter indicating to
which party the money should go. If the broker follows the advise of
the FREC, the broker cannot be liable if it is later found that the
money went to the wrong party.

There is also a Florida Real Estate Recovery Fund which can assist one
who has lost their deposit improperly to obtain up to $50,000.00 from
the fund.

A final option for the parties to consider is either arbitration or
mediation, whether contained in the purchase and sale agreement or
otherwise. Often these alternative dispute resolution procedures can
assist parties without the necessity of full blown litigation. In
real estate deals, emotions can be high and mediators are trained to
cool the parties down and to have them look at the issues in a more
objective way than they might have.

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Tort Injuries in Florida, Personal Injury

Tort Injuries

Tort Personal Injury in Florida General Overview

Law Offices of Michael D. Stewart

866-438-6574

www.TheMiamiLaw.com

www.GotPersonalInjury.com

In bringing a legal action in Florida for Personal Injury, four factors must be proven. The first factor is that the defendant owed a legal duty to conform to a certain standard to not harm the plaintiff. The second factor is that the defendant breached that legal duty. The third factor is that the plaintiff was injured due to this breach of duty. The fourth and final factor is that the breach of the duty caused injury to the plaintiff.

Not all persons who cause injury will be liable under a personal injury action. For instance, there are exemptions under the Florida Statutes for persons such as Good Samaritans acting to aid another – See Florida Statute Section 768.13. Further, just because one is injured by the actions of another does not mean that the one causing injury should be liable in tort for the injury. For example, a doctor may make the reasonable decision to perform an operation, after explaining the risks to the patient (informed consent), which in the end could cause injury to the patient, though the operation was deemed to have the potential for the greater good.

In Florida, an injured person can also be partially liable for their own injuries. This is referred to as comparative negligence. The injured person’s monetary recovery against a defendant will be reduced by that percentage that the injured person was responsible for the injury. Further, an injured person may have assumed the risk to themselves in an activity and cannot successfully sue another for the injury. This would be the case in, for example, a sport where the injured was deemed to know the risk of being hit with a baseball but participated anyway. Thus it is deemed reasonably foreseeable that this type of injury would occur and the injured individual assumed this risk.

Employers are often responsible for the injuries caused by their employees under a theory of respondeat superior, or vicarious liability. This is referred to as joint and several liability. Further, businesses can be liable for the injuries caused by their independent contractors when the business was negligent in the hiring of the contractor, negligent in the supervision of the contractor, or negligent in the training of the contractor. The business can also be liable for its contractors on certain types of dangerous jobs that it is deemed to dangerous to allow the contractor to pass off legal responsibility to a third party. This is similar to strict liability which holds that regardless of how much care one takes, the undertaking of the activity will impose liability no matter who is at fault for the injury.

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Fraud, Misrepresentation – Florida Law

Fraudulent and Negligent representations in Florida

Law Offices of Michael D. Stewart

866-438-6574

www.TheMiamiLaw.com

According to the Florida Supreme Court, the factors to be considered in a Negligent Misrepresentation case are:

1) Whether the defendant made a statement that he/she thought was true but was actually false.

2) Whether the defendant was negligent in making the statement because he/she should have known that the statement was false.

3) Whether defendant intended that the listener would rely on the statement

4) Whether the hearer justifiably relied on the statement.

5) Whether the listener suffered injury as a result of relying on the statement.

The statement made by the defendant must be material or important and not a small portion of a more in depth statement which is essentially true. According to Standard Jury Instructions-Civil Cases (No. 99-2), 777 So.2d 378, 381 (Fla. 2000), a material facts is one that is of such importance that the plaintiff would not have entered into a transaction but for the statement. Comparative negligence can apply to a case of negligent misrepresentation when look at whether the listener justifiably relied on the statement by the defendant.

Fraudulent misrepresentation is where the defendant knows that the statement is false and intends that the plaintiff rely on it to his/her detriment and to the benefit of the defendant. Fraudulent misrepresentation requires less of showing concerning comparative fault where the plaintiff could have through some diligence ascertained that the statement was false, as the law wishes to punish those who use fraud more than those who are merely negligent.

The pleading requirements for a lawsuit for both negligent misrepresentation and fraudulent misrepresentation require pleading with specificity.

An example of a negligent misrepresentation would be where a real estate agent unknowingly informs a potential buyer that a house does not have any defects, when in fact it does. Fraudulent misrepresentation would be where the real estate agent know of a defect but informed the potential buyer that there was no defect in an attempt to sell the house despite the defect. A similar cause of action to this would be of Fraud in the Inducement where there is:

1) a false statement concerning a material fact.

2) knowledge by the person making the statement that the statement was false.

3) the intent of the person making the statement that the listener would rely on the statement.

4) the listener relies on the statement to their detriment.

Class Actions cannot be brought under separate contracts on the basis of fraud. Further, one in Pari Delictor, or who engaged in fraud themselves, may be barred from bringing an action. Fraud in the inducement, like the other causes of action above, must be plead with particularity in accordance with Fla.R.Civ.P. 1.120(b), and must list who made the statement, the substance of the false statement, when the statement was made and in what context.

Fraud in the Inducement is the use of deceit or trick to cause someone to do something to their detriment, such as using false statements to induce someone to sign a contract that is to their detriment.

A further related cause of action is Fraud in the factum, where a misrepresentation cause one to enter into a transaction without understanding the risks, duties or obligations incurred. To determine whether a transaction involves fraud in the factum a consideration of all the relevant factors to the transaction is necessary. An example of Fraud in the factum would be if one induced you to sign one type of contract when in fact it was a different type of contract. In this case the contract would be voidable due to the fraud (as opposed to void on its face). Fraud in the factum can be considered an equitable defense to the terms of the contract.

Another type of fraud would be Extrinsic fraud which usually occurs in family and domestic relations cases whereby one uses fraud to prevent one from obtaining information necessary to their ability to prove their case, such as lying on a Florida Family Law Financial Affidavit, or fabricating evidence. Extrinsic fraud also occurs in foreclosure cases where the lender through their fraud forces the homeowner to lose their property.

Intrinsic fraud, on the other hand, is where fraud was used to procure a transaction. The two types of intrinsic fraud are fraud in the inducement and fraud in the factum, as listed above.

A term often used in the context of fraud is Scienter, or knowledge of the wrongdoing. Thus one committing a fraud would have knowledge that what they are doing is fraudulent and have the intent to commit the fraud. For example, under Section 10(b) of the Securities and Exchange Act of 1934, a plaintiff must prove that the defendant acted with scienter, though the Private Securities Litigation Reform Act of 1995 added that the plaintiff must prove a “strong inference” of scienter.

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Medical Malpractice in Florida

Florida Medical Malpractice

Law Offices of Michael D. Stewart

866-438-6574

www.TheMiamiLaw.com

In Florida, Doctors and other medical staff are held to a standard of care as to the services they provide. Failure to meet that standard of care can lead to injury, which can lead the patient to have a medical malpractice lawsuit, or in the case of death, can leave the surviving family with a wrongful death lawsuit for monetary damages and other remedial measures against the doctor or other health care provider.

The standard of care for doctors in Florida is the care that would be used by a reasonably prudent doctor in the same circumstances. Failure to meet this standard can lead to liability for medical malpractice.

In Florida, to prove a medical malpractice case it must be shown that 1) a doctor patient relationship existed, 2) the doctor was negligent (failed to meet the appropriate standard of care), 3) and that this negligence led to injury to the patient.

Proving that a doctor patient relationship existed is not always straightforward. When one is in a hospital it is possible that there are many treating and non-treating doctors, one or all of whom could be potentially liable for injury. Further, there could also be other personal who are more liable for injury, such as an anesthesiologist or nurse. Further, what if a doctor was merely an acquaintance and gave advice outside of the hospital or office context that led to injury. Would a doctor patient relationship have been created?

The next step is proving that the doctor was negligent. In Florida, an expert will be needed to testify as to the standard of care that was reasonably prudent and how this doctor deviated from the standard of care. The expert will most likely be another doctor in the same profession as the potentially negligent doctor. The factors in negligence are that the doctor had a duty to the patient to provide reasonable care, the doctor failed to provide such care, this failure led to injury to the patient, and the patient was thereby damaged.

It then needs to be proven that the negligence of the doctor was actually the cause (proximate cause) of the injury or death. For instance, in a situation where a patient dies of lung cancer, a failure to properly treat the cancer could be considered negligence, but if the patient was going to die that day anyway, it could not be said that the doctor’s negligence actually caused the wrongful death. The negligence must cause the injury.

Damages in a medical malpractice case must then be proved. Damages can include pain and suffering, medical bills, lost wages, disfigurement, and in the case of wrongful death, the family could have their own claims against the doctor, hospital and other medical workers.

Common claims for medical malpractice are failure to diagnose, failure to adequately treat, failure to warn the patient of known risks, or what is also referred to as informed consent.

In Florida, a lawsuit for medical malpractice needs to be commenced relatively quickly and there is a strict statute of limitations on malpractice lawsuits. The statute of limitations in Florida for a medical malpractice claim is two years from when the patient knew of the doctors negligence or when the patient should have know something was wrong. So, for example, in cases where a sponge was left inside a surgery patient, the patient might not learn about the doctor’s negligence until some time after the occurrence. The statute would begin to run once the patient learned that the sponge was inside them. However, in Florida, there is a generally hard rule that a medical malpractice claim cannot in most circumstances be brought after four years from the negligence. However, if the doctor or other health care provider concealed the negligence and prevented the patient from learning of it within the four year period, the statute is increased an additional two years. With children, however, there is a statue of repose whereby the child’s right to bring a medical malpractice claim cannot be cut off before the child’s eighth birthday.

Further, Florida requires that prior to bringing a lawsuit for medical malpractice, that a pre-suit investigation be conducted concerning the alleged malpractice:

766.106 Notice before filing action for medical negligence; presuit screening period; offers for admission of liability and for arbitration; informal discovery; review.—

(1) DEFINITIONS.—As used in this section, the term:

(a) “Claim for medical negligence” or “claim for medical malpractice” means a claim, arising out of the rendering of, or the failure to render, medical care or services.

(b) “Self-insurer” means any self-insurer authorized under s. 627.357 or any uninsured prospective defendant.

(c) “Insurer” includes the Joint Underwriting Association.

(2) PRESUIT NOTICE.—

(a) After completion of presuit investigation pursuant to s. 766.203(2) and prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence. Notice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period prior to the alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records relied upon by the expert in signing the affidavit, and the executed authorization form provided in s. 766.1065.

(b) Following the initiation of a suit alleging medical negligence with a court of competent jurisdiction, and service of the complaint upon a defendant, the claimant shall provide a copy of the complaint to the Department of Health and, if the complaint involves a facility licensed under chapter 395, the Agency for Health Care Administration. The requirement of providing the complaint to the Department of Health or the Agency for Health Care Administration does not impair the claimant’s legal rights or ability to seek relief for his or her claim. The Department of Health or the Agency for Health Care Administration shall review each incident that is the subject of the complaint and determine whether it involved conduct by a licensee which is potentially subject to disciplinary action, in which case, for a licensed health care practitioner, the provisions of s. 456.073 apply and, for a licensed facility, the provisions of part I of chapter 395 apply.

(3) PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—

(a) No suit may be filed for a period of 90 days after notice is mailed to any prospective defendant. During the 90-day period, the prospective defendant or the defendant’s insurer or self-insurer shall conduct a review as provided in s. 766.203(3) to determine the liability of the defendant. Each insurer or self-insurer shall have a procedure for the prompt investigation, review, and evaluation of claims during the 90-day period. This procedure shall include one or more of the following:

1. Internal review by a duly qualified claims adjuster;

2. Creation of a panel comprised of an attorney knowledgeable in the prosecution or defense of medical negligence actions, a health care provider trained in the same or similar medical specialty as the prospective defendant, and a duly qualified claims adjuster;

3. A contractual agreement with a state or local professional society of health care providers, which maintains a medical review committee;

4. Any other similar procedure which fairly and promptly evaluates the pending claim.

Each insurer or self-insurer shall investigate the claim in good faith, and both the claimant and prospective defendant shall cooperate with the insurer in good faith. If the insurer requires, a claimant shall appear before a pretrial screening panel or before a medical review committee and shall submit to a physical examination, if required. Unreasonable failure of any party to comply with this section justifies dismissal of claims or defenses. There shall be no civil liability for participation in a pretrial screening procedure if done without intentional fraud.

(b) At or before the end of the 90 days, the prospective defendant or the prospective defendant’s insurer or self-insurer shall provide the claimant with a response:

1. Rejecting the claim;

2. Making a settlement offer; or

3. Making an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages. This offer may be made contingent upon a limit of general damages.

(c) The response shall be delivered to the claimant if not represented by counsel or to the claimant’s attorney, by certified mail, return receipt requested. Failure of the prospective defendant or insurer or self-insurer to reply to the notice within 90 days after receipt shall be deemed a final rejection of the claim for purposes of this section.

(d) Within 30 days of receipt of a response by a prospective defendant, insurer, or self-insurer to a claimant represented by an attorney, the attorney shall advise the claimant in writing of the response, including:

1. The exact nature of the response under paragraph (b).

2. The exact terms of any settlement offer, or admission of liability and offer of arbitration on damages.

3. The legal and financial consequences of acceptance or rejection of any settlement offer, or admission of liability, including the provisions of this section.

4. An evaluation of the time and likelihood of ultimate success at trial on the merits of the claimant’s action.

5. An estimation of the costs and attorney’s fees of proceeding through trial.

(4) SERVICE OF PRESUIT NOTICE AND TOLLING.—The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11. However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.

1(5) DISCOVERY AND ADMISSIBILITY.—A statement, discussion, written document, report, or other work product generated by the presuit screening process is not discoverable or admissible in any civil action for any purpose by the opposing party. All participants, including, but not limited to, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit screening process. This subsection does not prevent a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 who submits a verified written expert medical opinion from being subject to denial of a license or disciplinary action under s. 458.331(1)(oo), s. 459.015(1)(qq), or s. 466.028(1)(ll).

(6) INFORMAL DISCOVERY.—

(a) Upon receipt by a prospective defendant of a notice of claim, the parties shall make discoverable information available without formal discovery. Failure to do so is grounds for dismissal of claims or defenses ultimately asserted.

1(b) Informal discovery may be used by a party to obtain unsworn statements, the production of documents or things, and physical and mental examinations, as follows:

1. Unsworn statements.—Any party may require other parties to appear for the taking of an unsworn statement. Such statements may be used only for the purpose of presuit screening and are not discoverable or admissible in any civil action for any purpose by any party. A party desiring to take the unsworn statement of any party must give reasonable notice in writing to all parties. The notice must state the time and place for taking the statement and the name and address of the party to be examined. Unless otherwise impractical, the examination of any party must be done at the same time by all other parties. Any party may be represented by counsel at the taking of an unsworn statement. An unsworn statement may be recorded electronically, stenographically, or on videotape. The taking of unsworn statements is subject to the provisions of the Florida Rules of Civil Procedure and may be terminated for abuses.

2. Documents or things.—Any party may request discovery of documents or things. The documents or things must be produced, at the expense of the requesting party, within 20 days after the date of receipt of the request. A party is required to produce discoverable documents or things within that party’s possession or control. Medical records shall be produced as provided in s. 766.204.

3. Physical and mental examinations.—A prospective defendant may require an injured claimant to appear for examination by an appropriate health care provider. The prospective defendant shall give reasonable notice in writing to all parties as to the time and place for examination. Unless otherwise impractical, a claimant is required to submit to only one examination on behalf of all potential defendants. The practicality of a single examination must be determined by the nature of the claimant’s condition, as it relates to the liability of each prospective defendant. Such examination report is available to the parties and their attorneys upon payment of the reasonable cost of reproduction and may be used only for the purpose of presuit screening. Otherwise, such examination report is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

4. Written questions.—Any party may request answers to written questions, the number of which may not exceed 30, including subparts. A response must be made within 20 days after receipt of the questions.

5. Unsworn statements of treating health care providers.—A prospective defendant or his or her legal representative may also take unsworn statements of the claimant’s treating health care providers. The statements must be limited to those areas that are potentially relevant to the claim of personal injury or wrongful death. Subject to the procedural requirements of subparagraph 1., a prospective defendant may take unsworn statements from a claimant’s treating physicians. Reasonable notice and opportunity to be heard must be given to the claimant or the claimant’s legal representative before taking unsworn statements. The claimant or claimant’s legal representative has the right to attend the taking of such unsworn statements.

(c) Each request for and notice concerning informal presuit discovery pursuant to this section must be in writing, and a copy thereof must be sent to all parties. Such a request or notice must bear a certificate of service identifying the name and address of the person to whom the request or notice is served, the date of the request or notice, and the manner of service thereof.

(d) Copies of any documents produced in response to the request of any party must be served upon all other parties. The party serving the documents or his or her attorney shall identify, in a notice accompanying the documents, the name and address of the parties to whom the documents were served, the date of service, the manner of service, and the identity of the document served.

(7) SANCTIONS.—Failure to cooperate on the part of any party during the presuit investigation may be grounds to strike any claim made, or defense raised, by such party in suit.

History.—s. 14, ch. 85-175; s. 9, ch. 86-287; s. 3, ch. 88-173; s. 48, ch. 88-277; s. 245, ch. 94-218; s. 1, ch. 94-258; s. 424, ch. 96-406; s. 1800, ch. 97-102; s. 164, ch. 98-166; s. 225, ch. 2000-160; s. 166, ch. 2000-318; s. 1, ch. 2000-341; s. 49, ch. 2003-416; s. 11, ch. 2011-233.

1Note.—Section 16, ch. 2011-233, provides that “[t]his act shall take effect October 1, 2011, and applies to causes of action accruing on or after that date.”

Note.—Former s. 768.57.

Law Offices of Michael D. Stewart

866-438-6574

www.TheMiamiLaw.com

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574

Wrongful Death Lawsuits Florida

Personal Injury and Wrongful Death Lawsuits

Law Offices of Michael D. Stewart

866-438-6574

A personal injury lawsuit seeks to compensate one who is injured for damages such as lost job earnings, loss of future earning capacity, past and future medical expenses, pain and suffering and damages for disfigurement.

In a wrongful death action, the family of the deceased can bring an action against the one who caused the death for funeral and burial expenses, loss of financial support to the family, loss of affection and/or consortium, and loss of financial support.

In both cases, the injured needs to prove that the tortfeasor, or the one who caused injury, had a duty to the injured, and that they breached that duty by causing the injury. Resulting damages must also be proved.

Often their can be a number of significant intervening factors which can affect who is ultimately liable for an injury. Therefore, it is necessary to show that the alleged wrongdoer was the proximate or direct cause of the injury. Further, the injured can also be partially at fault for their own injuries and depending on the jurisdiction this can bar the injured from recovering damages, or can seek to reduce the damages in comparison to the percentage of fault.

After an injury or death, it is important to retain a lawyer as soon as possible who can reconstruct the accident scene to determine who was at fault. Police reports are often inaccurate, and experts need to be retained to interview witnesses, conduct tests on vehicles and of the location of the accident, and determine what happened in the accident. Without swift action, important evidence can dissipate.

Once the lawyer has a case and can prove that the alleged wrongdoer was negligent and caused injury or death to his or her client, he can then negotiate a settlement with the insurance companies.

If, however, the insurance companies challenge their clients’ liability, a lawsuit will need to be filed on behalf of the client alleging Duty, Breach of Duty, Causation, and Damages. Mediation between the parties will often be a useful step in attempting to resolve the matter prior to intensive litigation leading to trial. Proving damages will require intensive compilation of earnings and potential future earnings, lost wages, medical bills, both past and future, and the like. Actuarial information may also need to be obtained to determine how long the injured client will potentially live, or how long a deceased client was likely to have lived barring the accident.

Experts, like doctors, will often need to be called to testify in court as to extent of injuries, lifespan, earning capacity, pain and suffering and the like. Insurance companies will hire their own experts who will provide differing opinions on the issues of the case. Depositions and direct testimony of witnesses, including statements elicited by the police, will also need to be compiled and brought out in trial.

Once a trial is concluded the jury will return their verdict as to liability and monetary damages. Either party has the right to appeal the decision of the jury to a higher court if the decision was arrived at due to some procedural or evidentiary defect during the trial, which was preserved for appeal.

The lawyer will assist the client in determining what is in the best interests of the client when deciding on whether to accept settlements or whether to try the case to a jury and through possible appeal to the appellate courts.

Law Offices of Michael D. Stewart

866-438-6574

The Law Offices of Michael D. Stewart
TheMiamiLaw.com
305-590-8909
866-438-6574