Florida Legal Topics

Daytona Beach Legal News

The Law Office of Paul Bernardini

Will a traffic ticket raise my insurance?

Getting a traffic ticket does not guarantee your insurance rates will go up. At least, not immediately.

Most insurance companies don't look at your driving record until your due for renewal. That's when they might notice it on your driving record and adjust your renewal rate accordingly. And, if you are checking rates with other insurance companies then their quotes may include an increased amount because of the traffic ticket.

The type of ticket can affect whether your insurance rates go up. It all depends on the risk that they perceive. For example, one speeding ticket may not affect your rate. But, multiple speeding tickets or a ticket for an excessive amount of speed, can jump your rates significantly.

Another situation you should be careful of, is a ticket associated with a more significant offense such as Driving While Intoxicated. At that point, the speeding ticket is the least of your worries. You should contact a lawyer immediately to help manage the damage to your driving record and insurance rates.

Do I need an attorney if I have been in a Car Accident?

This article is to help you decide if you need an attorney if you were in a car accident. Whether you were at fault, you were struck by another vehicle, you were a pedestrian struck by a vehicle, or you were a passenger, are not major factors in the decision.

Anyone involved in a traffic accident should consider contacting an attorney to protect your rights, including financial compensation.

We have seen cases where the person who was deemed to have caused the accident has trouble with their own insurance company. Of course, many times, the victim of the accident trouble getting compensated by the other driver's insurance company. But, victims can also have a problem getting their own insurance company to pay their share of the damages.

No matter how minor the visible damage, it doesn't hurt to contact an attorney to ask what you need to do to protect your ability to receive compensation in the event of an accident. We offer a free consultation to go over your situation.

Can I get Medical Marijuana in Florida?

Medical marijuana is now available in Florida, however, it remains illegal under federal law.

According to the Florida Department of Health, in Florida, there is a difference between CBD, low-THC cannabis, and medical marijuana. Medical marijuana can contain significant amounts of tetrahydrocannabinol (THC) which is the chemical compound that causes the “high” commonly associated with cannabis.

First, Florida did not legalize recreational use of marijuana. And, Florida law differentiates between an order for low-THC cannabis and medical marijuana. You can be charged with a crime if you have not met the requirements of a 'Qualifying Patient'. Florida Medical Marijuana laws require that, at a minimum, you must be diagnosed with a qualifying condition, be entered into the Medical Marijuana Use Registry by a qualified physician, obtain a Medical Marijuana Use Registry Identification Card, and be a Florida resident or a seasonal resident.

And, even if you are legally allowed to use low-THC cannabis or medical marijuana, you can not use it just anywhere. Know the law so you do not end up with criminal charges. As of January 7, 2019, you can not use or administer medical marijuana in the following locations in Florida:
  • On any form of public transportation, except for low-THC cannabis.
  • In any public place, except for low-THC cannabis.
  • In a qualified patient’s place of employment, except when permitted by his or her employer.
  • In a state correctional institution.
  • On the grounds of a preschool, primary school, or secondary school.
  • In a school bus, a vehicle, an aircraft, or a motorboat, except for low-THC cannabis.
These are just a few of the restrictions. Some have exceptions and the list may change, so check the Florida statutes for the latest updates.

As always, this is for informational purposes only and does not constitute legal advice. This information is provided only as general information, which may or may not reflect the most current legal developments.

Personal Injury at Outdoor Parties

Happy New Year from Paul Bernardini. Enjoy the holiday season. But, be careful out there.
While you are enjoying the parties don't over imbibe. And with lots of other party-goers it's easy to miss seeing a hazard that causes you to slip and fall. It could be a drink spilled on the sidewalk or a soda can that didn't get picked up promptly.

Owners of public sidewalks and roadways have a legal obligation to maintain these areas in a reasonable safe condition. The owners have a duty to routinely and responsibly maintain these areas in order to prevent danger to public users of the premises. With lots of crowds, they may not respond as quickly when notified of a hazard on the sidewalk or road. But, if your injured because of their lack of attention, they may be responsible.

If you, or a loved one, are injured in a slip and fall accident on a public sidewalk or roadway, call Attorney Paul Bernardini. He has been representing personal injury cases in Daytona Beach for over 30 years.

Premises Liability Law

Premises liability law deals with injuries suffered on the property of an owner. Here, the owner implies a homeowner, small-business owner, or property manager of large commercial properties, such as shopping malls, gyms, restaurants, etc. Any time someone is injured on one of these premises, whether rented, leased, or owned by the occupant, the possessing party is most likely liable. However, there are circumstances where the visitor may be liable. Every case is different.

There are several levels of care depending on what kind of visitor is on the property. The kind of guest will determine the level of care the owner owes the visitor. The visitors fall into these three basic categories: Business invitees, Licensees, and Trespassers.

Business Invitees are those that enter an establishment for business reasons, such as to shop, eat, or conduct other business. Property owners owe this type of visitor the highest level of care. Repairmen and other workers who are invited into a home or business to do work usually fit into this category. Property owners have a continual duty to inspect the premises for dangerous conditions, and keep it safe at all times.

Licensees, or social guests, enter the premises for their own purposes, such as friends and family members attending a party or celebration, or to have dinner, or just visit, for example. This category also includes guests who just stop by. Owners have a duty to maintain their property in a “reasonably safe manner” and repair any unsafe conditions. At the very least, they have an obligation to warn of any known dangers.

Trespassers obviously have not been invited onto or into the property, but the owner still has a limited duty to warn them of any known dangers that could inflict intentional or reckless injury. “I have a gun and will shoot” would be a typical warning.

There are many more details pertaining to premises liability law and cases, and we can only touch upon them here. The best defense is to take preventative measures and keep your property danger-free; but if you find yourself on either side of one of these cases, please call me at 386-258-3453 at your earliest opportunity. The consultation is always free.

Will the Outcome of the Election Affect Tort Awards?

The outcome of the election will have a huge effect on the rights of injured people. In recent years, the republicans, under the mantle of "Tort Reform," have passed numerous laws that restrict the rights of injured Floridians. Rental car companies have received immunity from suits that a normal car owner does not have. Emergency room health care providers have laws protecting them that normal health care providers do not.

In fact, health care providers in general have great immunity from wrongful death suits unless the decedent has young children, a spouse, or is under 25. Thus, if your mother is a single woman with no children under 25, and she is killed because of a clear, unquestioned case of negligence, her children over 25 have no remedy from the health care provider who negligently caused the unnecessary death.

Public schools, police, municipalities, hospitals, cities, counties, the State of Florida – in fact, all public institutions – are already protected by Sovereign Immunity laws limiting the damages,  absent a special act of the legislature, even when the public institution has millions of dollars of insurance!

The republicans in Florida have also passed laws allowing nursing homes to operate without ever having adequate amounts of liability insurance. This is especially heartbreaking to families, adding insult to injury.  In fact, according to studies of The National Center For Elder Abuse, about 44 % of nursing home residents report being abused at some point during their nursing home stay, and a whopping 95% have personally been neglected or seen other residents neglected.  Still, there is no requirement that any nursing home carry adequate amounts of insurance (the law simply says that nursing homes will maintain liability insurance that is in force at all times without setting a minimum.

The list goes on and on. Yes, many people are in favor of tort reform until their mother or child is killed in a hospital. The Republicans have done a great job blaming lawyers for all the ills of society; yet, all one needs to do is look at the billboard of the hospitals that are protected by these laws to realize such laws are not necessary.

If you have any questions about the new and proposed tort reforms, please give me a call. As always, a consultation is free.

- Paul Bernardini
- 386-258-4353

Seniors Displaced as Grace Manor in Port Orange Ordered Shut Down Over Abuse

According to an article in the July 13, 2016, issue of the Daytona Beach News-Journal, Grace Manor in Port Orange has been ordered shut down by the state after being accused of improperly reporting sexual assaults to unwilling patients in the memory care unit. Unfortunately, this is not the first time Grace Manor has been accused of nursing home abuse, nor is it by any means the only nursing home affected by mismanagement and failure to perform mandatory background checks, for example.

Everyone (I mean everyone) is more than welcome to a free telephone conference concerning any questions about nursing home abuse and nursing home injuries. So if you have any questions or concerns, please call me at 386-258-3453.
 
- Paul Bernardini

Slip/Trip and Fall - Think Before You Speak


There are many kinds of slip/trip and fall injuries, and many stories, articles, and reports about them. However - certain guidelines should apply in every single case – no matter what else you might believe seems more logical or safer. Frequently, the statement you give while embarrassed, flustered and injured may severely jeopardize your claim, no matter how honest and well-intentioned you or the store employees are.

The one thing to try to remember is that you will be very vulnerable and probably embarrassed and flustered, in addition to being injured. Do not give any details to anyone at the scene. It’s important to realize that the people who have the real authority to decide to pay your ambulance, emergency room, medical bills, lost wages, etc., won't be anywhere near the store. The store employees simply have an obligation to get as much of a statement from you as they can, report to their insurance company or company claim department, and let those professionals handle everything.

In my experience (since 1966), no matter how polite you are, no matter how cooperative you are, and no matter how severely you are injured, the insurance companies only have their monetary interests at heart and want you to go away. Don't rely on any store employee to get names and information of witnesses. Sometimes, they "accidentally forget."

Many people I've met over the years who had been injured in stores willingly gave statements to store employees because they were certain (from the concerned tone or the actual promise) that the store would pay all their related bills. It didn't dawn on them for several days or even weeks that nothing would be done until they contacted a lawyer.

So, WHAT SHOULD YOU DO?

Report the injury to the Store Manager or Assistant Manager. If you are injured, simply advise you are hurt but that you don't know the extent of your injuries. Tell them that you want medical treatment or an ambulance to the emergency room if necessary. Refuse to give a statement. You have no idea how important this can be for even the most deserving, honest, innocent, injured person.

If possible, take a photo or video with your phone of what caused the accident, and get the name & information sufficient to locate any eyewitnesses.

Then get medical help. Sometimes symptoms are masked by the embarrassment or the severity of more than one injury when symptoms first appear, as immediately after the incident or within a few hours or even a day or so. Be certain to immediately note the symptoms and report these medical problems promptly to your health care provider, either your family doctor or the ER doctor or staff...

So remember:
  1.      Report the injury to the store immediately
  2.     Get the names, phone numbers, and addresses of any witnesses.
  3.     Take photos, as many as you can. Have someone help you if necessary
  4.     Get emergency room help.
  5.     Do not give any statement, oral or written until AFTER the torte pays your medical bill & lost wages, except to your lawyer.  

Of course, if you have any questions, just give me a call for a free, no obligation whatsoever. Call 386-258-3453 and I will help you get through this over the telephone, if I can! I’m here for you.

Slip/Trip And Fall - Parking Lots

Many people trip and/or fall over concrete wheel stops in parking lots. "Wheel stop" is the architect’s name for the stone or concrete barrier to keep a car from moving forward beyond a parking space.

These cases are extremely difficult to win, no matter how serious the injury. A good example is Ramsey v. Home Depot USA, 38 Fla.L.Weekly D2245 (1st DCA October 25, 2013), where the customer filed a lawsuit against Home Depot alleging that the wheel stop was a dangerous and hazardous condition and that Home Depot had a duty to better warn her.

The trial court granted summary judgment for Home Depot. The Florida appellate court agreed with the decision of the trial court and The First District held that the owner had no duty to warn the customer of the wheel stop and that the owner was not responsible for the injury when the customer tripped over the wheel stop.

The court noted that Home Depot offered testimony to establish that the wheel stops were in compliance with the Americans with Disabilities Act as well as state and local building codes.

Nursing Home Negligence and Abuse

On May 16, 2016, a jury in Colorado awarded a family of a former patient of Life Care Centers of America, Inc. (LCCA) $5.5 million. The horrible conditions and indignity Sophia Maria Alcon lived through until her death as a result of her lack of care at Life Care Center of Pueblo resulted in one of the higher court decisions against a nursing home for abuse and neglect. LCCA owns more than two dozen nursing homes in Florida, two in Orlando. If you have a loved one in a nursing home anywhere, please know the signs that can indicate a problem and address them right away. Nursing home abuse and negligence include, but are not limited to, the following:

  • Bedsores, also called decubitus ulcers or pressure ulcers
  • Staff refusing or delaying visits by family to see resident
  • Overmedicating patient
  • Falls with injuries
  • Unexplained injuries
  • Emotional abuse
  • Signs of emotional trauma
  • Sudden changes in patient behavior or prognosis
  • Rapid weight loss or malnutrition
  • Cracked lips or dehydration
  • Unsanitary conditions
  • Inadequate staffing or poor quality of staff
  • Signs of sexual abuse, venereal diseases or genital infections
  • Transfer to hospital for infection, wound care, or malnutrition
  • Transfer to wound care clinic for wound care, debridement, or flap surgery
  • Financial exploitation
  • Unexplained death
It is important to make sure your loved one is being treated with the respect and care they deserve. Visitation by you and other family and friends is crucial. If you believe your loved one is suffering from any of these symptoms, or has had an unexplained death, please, please call me right away at 386-258-3453.

Florida’s statute of limitations on nursing home abuse is only two years, and it is essential that you act right away to gather evidence and witnesses. There is no time to lose. One of the first orders of business is to remove the patient from the facility as soon as possible. The sooner we can meet with you, the sooner we can user our experience to get you the help you need.

The consultation is always free.

Paul Bernardini

2015 Florida Residential Swimming Pool Safety Act

A swimming pool is, by its nature, a temptation – an “attractive nuisance” – for children.  Warm temperatures, long summer days, and unprotected pools act like a magnet to unsupervised kids. Even when children are supervised, it doesn’t take long for a child to drown silently while a back is turned or a message texted.

In Florida, drowning is the leading cause of death in children under 5, and brain disability is the result of nearly four times as many near-drowning incidents. The majority of these drownings happen in a residential swimming pool when there is no supervision, and no barrier between the child and the pool. The consequences are devastating to everyone involved. It is the property’s owner responsibility to keep his or her pool secure from and for children.

As of the 2015 passing of The Preston de Ibern/McKenzie Merriam Residential Swimming Pool Safety Act, all new pools must pass a final inspection that includes “…at least one of four requirements relating to pool safety features:
    (a) The pool must be isolated from access to a home by an enclosure that meets the pool barrier requirements of s. 515.29;
    (b) The pool must be equipped with an approved safety pool cover;
    (c) All doors and windows providing direct access from the home to the pool must be equipped with an exit alarm that has a minimum sound pressure rating of 85 dB A at 10 feet; or
    (d) All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor.”
Even if you have an older pool, you should seriously consider equipping it and your property with one of these safety features, and familiarize yourself with this new statute, Premises Law, and the Attractive Nuisance Doctrine. Pool owners have a duty to protect young children from the dangers of drowning and injury.

If a child is hurt in your pool, you will likely be sued. If you have any questions about a pool-related lawsuit you are involved in, please call me at 386-258-3453 right away.

No matter which side of the fence you find yourself on, we can help. The consultation is free.

Rear-End Collision and Florida's Comparative Negligence Standard

Although most people assume that the last car in a rear-end collision is always 100% at fault, in 2012, the Florida Supreme Court cleared the way for the rear driver to present evidence as to the partial fault of the front driver in causing such a collision.

In Cevallos v. Rideout, et al., the Florida Supreme Court overruled the 4th District Court of Appeal’s decision to attribute sole fault to the rear driver in a collision. This case involved three drivers. The one in the middle had been on a cell phone and abruptly hit her brakes, colliding with the car in front of her. This resulted in the rear car colliding with her.

This decision means that now the rear driver can pursue damages, even if partially. Florida operates under a pure comparative negligence standard, which allows proven fault to be split between drivers (here, the middle driver), allowing the third car to recover a percentage of the damages. Of course, this must be argued by a competent lawyer.

Keep this in mind if you’ve been involved in a rear-end collision and you believe that the car you hit has been negligent in any way. Call us right away before you admit fault or talk to the insurance company, and never sign anything. Our consultations are always free.

School Playground Injuries and Liability

Children and playgrounds are as natural a combination as bread and butter. You can’t keep them apart. Unfortunately, injuries often follow and are an all-too-common occurrence. Who is responsible for school playground injuries? This is not an easy question to answer. If your child was injured during a playground activity, the school district might be legally responsible. The most important action to take is to get the student safe and attended to. Then, you’ll need to get the facts.

•    What was the injury?
•    How was it caused?
•    Should the children have been outside in the first place?
•    Did it involve another child or children?
•    Was there adequate supervision? If not, this is a form of negligence.
•    Had the children been cautioned, or taught how to properly use the equipment?
•    What was the state of the equipment? Was it in need of repair?
•    What are the medical costs now, and in the future?

However, even before you file a lawsuit with a school district, you must file a formal claim, in writing, with the correct official of the district. There are strict and short time limits on filing the claim, and then you must wait for the school to respond.

With so much at stake – the recovery of your child – you’ll need a competent and experienced lawyer by your side. Please, take care of your child, and then call us. We’ll help you gather the facts to present a proper presentation to the district. Paul Bernardini, 386-258-3453

The first consultation is free.

May is Motorcycle Safety Awareness Month

Here in Daytona Beach, we have more than our share of bikers during Biketoberfest and Bike Week, and plenty of them all throughout the year. The weather, the straight roads, and the lack of helmet laws make this a paradise for bikers. Unfortunately, Florida also has the highest number of biker deaths in the country, even when adjusted for population.

Both motorists and bikers are encouraged to remain aware of traffic and pedestrians at all times. The National Highway Traffic Safety Administration has declared May Motorcycle Safety Awareness Month and campaigns are in full swing:

Share the Road
All motorists are reminded to safely "share the road" with motorcycles and to be extra alert to help keep motorcyclists safe. Motorcyclists are reminded to make themselves visible to other motorists.*

Ride Sober or Get Pulled Over
Alcohol affects those skills essential to riding a motorcycle - balance and coordination. So it plays a particularly big role in motorcycle fatalities. Statistics show that the percentage of intoxicated motorcycle riders in fatal crashes is greater than the percentage of intoxicated drivers on our roads. This is why NHTSA urges all motorcycle riders to always ride smart and sober.*

Florida operates under a pure comparative negligence standard. This means that the jury can assign a percentage of fault to each party in a motorcycle lawsuit. If the accident was 30% your fault, you will only be entitled to 70% compensation. Of course, proving blame is difficult.

The intoxication defense, provided in Fla. Stat. 768.36, has become a strong tool for defendants, allowing them to close the door on any recovery if the jury finds that the plaintiff was primarily at fault for his or her own injuries as a result of intoxication.

If you have been involved in a motorcycle accident, please be aware that the insurance companies are notoriously devious in getting you to admit guilt or to have you sign paperwork to close the case. You should never sign anything or make any statements to the other party’s insurance company. Do not talk with them for any reason.

Instead, it is imperative that you call us as soon as possible, or have someone call us for you, for a free consultation. We’ll quickly evaluate the circumstances of the accident, and begin to put an action plan together. We want to protect your rights during this difficult time and secure the maximum compensation you deserve.

Call me, Paul Bernardini, at (386) 258-3453 for your free consultation.

*www.nhtsa.gov/Safety/Motorcycles

Slip/Trip and Fall Injuries and Liability (Premises Law)

It is often difficult to prove who is at fault in a Slip/Trip and Fall injury. The property owner/renter or employee (hereinafter the “owner”) will not always be responsible for a situation that a reasonable person would and could have avoided. But if the owner caused and/or knew about the situation, he must fix it – or at the very least, post a visible sign of caution, or be liable for any consequences that may occur.

Many of these cases are decided by the perception of reasonableness. In order for a slip/trip and fall suit to be successful, the following may have to be proved by the plaintiff:

1. The owner created the situation;
2. The owner knew about the unsafe condition and failed to correct it in a reasonable, timely manner;
3. The owner reasonably should have known about the condition, foreseen the danger, and corrected it before your accident;
4. The owner did not have in place safety measures to reasonably check for hazards.

But could the owner have avoided the condition? Was the owner guilty of negligence and have a record of such negligence? Did he know about it and have sufficient time to rectify the situation? Did he do all he could to prevent injury, such as posting a sign until the danger was either fixed or removed? Was the lighting adequate and working, or was the area poorly lighted?

The injured party must prove negligence on the part of the owner. The injured party will also have to anticipate that the defense will be claiming the injury is due to some carelessness on the part of the plaintiff:

1. Did being on a cell phone or otherwise being distracted prevent him from noticing the hazard, when another person who was paying attention noticed the hazard?
2. Did the plaintiff have permission to be on the premises?
3. Did he ignore the perfectly adequate signage warning of the hazard?

Slip/trip and fall law, also known as premises law, can be complicated. There are many factors to consider, evidence to be gathered, and questions to be answered. You need a qualified personal injury attorney – and as soon as possible – if you believe you have been injured due to the negligence of the owner.

Please call me, Paul Bernardini, at 386-258-3453, and come in for a free consultation, before it’s too late. Your injuries must be addressed and your situation evaluated to determine the best plan of action. Don’t wait!

Sports and Exercise Injuries

The eight most common sports and exercise injuries are:

• Strains and sprains
• Swollen muscles (myositis)
• Achilles tendon
• Shin splints (pain along the shin bone)
• Groin pull
• Knee
• Tennis elbow (epicondylitis)
• Rotator cuff

The most common sports and exercise injuries will heal over time or with minor rehabilitation. First, don’t “play through” the injury. This can cause more pain and harm. Rest, ice, compression and elevation (RICE) are the most effective methods to relieve pain, reduce swelling, and speed healing. Rehabilitation, pain relievers and sometimes surgery can help if these methods fail.

However, there are more serious sports injuries that may warrant legal action:

• Head Injury – Concussion or Hematoma
• Neck Injury
• Back Injury
• Paralysis

 A recent study* suggests that 40% of ex-NFL players have brain damage from concussions. We’ll cover these types of injuries under a separate post sometime in the near future.

Under Florida law, sports trainers, personal trainers, gym owners, and sports coaches may be liable for injuries and accidents caused by their negligence, such as the failure to properly instruct, supervise, use proper and safe equipment, and take other reasonable measures to prevent harm.

If you have been injured while playing a sport, swimming, or working out at the gym, and you think it may be due to negligence of some sort, please call me at 386-258-3453 to discuss your injury during a free consultation. We’ll evaluate your situation and take the next steps toward your recovery.

*Copyright (c) 2016 HealthDay. All rights reserved.

Workplace Injuries – Florida Workers’ Compensation Law

Florida Workers’ Compensation is company-funded insurance that covers most, but not all, employee’s injuries on the job. Compensation may include the following:

• Medical and rehabilitation expenses, such as doctors, hospitals, medication, and rehab
• Income replacement for disabled workers
• Lump sum payments for workers left with permanent partial disabilities
• Survivor benefits, both income replacement and lump sum for funeral expenses

In exchange for this coverage, the employee agrees not to sue his or her employer for negligence. Workers’ Compensation does not cover your injuries sustained under these circumstances:

• You were intoxicated with alcohol or illegal drugs;
• Your injuries were self-inflicted;
• You started a fight and were injured;
• Your conduct violated company policy; and/or
• You were not on the job.

If you have been injured on the job, the law requires that you report your job-related injury within 30 days of your knowledge of the accident or injury. You will have to see a doctor authorized by your employer or the insurance company.

Workers’ Compensation Law is a complex process and it is difficult to navigate without someone in your corner. It’s the classic case of the big insurance companies against the injured party – you, the claimant – and it’s tough to do alone. The very least you should do is consult an attorney, and our consultations are always free. Call 386-258-3453, and we’ll be happy to discuss your options.

Questions to Ask Your Lawyer

Before you visit a lawyer, make sure you have a list of questions to ask your lawyer and make the most of your consultation. At Bernardini Law, our consultation is always free. Here are a few general suggestions to start with.

1. What information do I need to bring for my consultation? Will I meet with a lawyer or a case worker? (On the phone when you schedule your consultation.)
2. How will I be charged for my case? Up front (retainer), by the hour (what is your hourly rate), or a percentage of the settlement (contingency)? What is the percentage?
3. How are expenses billed, and what might they consist of?
4. Will a lawyer or a case worker handle my case?
5. If my case is handled by a case worker, how much education do they have and what difference will this make in winning my case?
6. If a lawyer, how much access will I have to him or her? How often will I be able to talk with him or her?
7. Does the lawyer charge me for his secretary's time, and if so, how much?
8. How often and from whom will I receive status reports?
9. If I am not happy with my lawyer because I never get to talk to him or her, and I decide to find other representation, how much do I have to pay?

These questions are important and can form the basis of good communication with your lawyer from the beginning.  Of course, you will have your specific questions, which you should also bring in a list.

Please give me a call at (386) 258-3453 and we’ll set up a time for your free consultation. The sooner we begin, the sooner we’ll arrive at positive outcome for your lawsuit.

Subpoena vs. Summons: Your Legal Rights and Responsibilities

First of all, being served with a subpoena is not the same as being served with a summons; however, failure to comply in either situation will put you in contempt of court, which carries fines, possible jail time, or both. In either instance, you must swear to tell the truth and testify to the best of your ability.

A summons is a demand to appear in court because someone is suing you. It must be served by the sheriff or a licensed private detective. In some cases, a summons can be served by certified mail. Failure to comply with a summons and appear in court results in the other side winning by default, and puts you in contempt of court.

A subpoena is a demand for evidence or testimony on a case that may or may not involve you. It can be your testimony of past events, or documents and/or records you have that are related to the case. Both a summons and a subpoena can be either for a civil or criminal case.

Once a subpoena is issued by the court, however, it can be served by almost anyone as long as it is done properly. Because the court is asking for your participation in a civil or criminal case, you may be paid a fee. The amount depends on various factors, such as distance you have to travel, whether you have to stay overnight, etc.

You can be subpoenaed for specific information in a case you are already involved in. For example, in a child custody case, you may be subpoenaed for DNA samples, medical records, income tax returns, or computer files.

While it may be disconcerting to receive a summons or a subpoena, don’t panic. There are time limits in which to respond, however. You should immediately speak with your attorney, who can review and discuss your testimony and advise you about the consequences.

You should know that you have a constitutional right that protects you from giving evidence or testimony which will incriminate you. However, you must never destroy any evidence that is related to the case. Let your attorney decide what to do with the evidence you have. He or she will advise you and represent you in court, if necessary.

If you receive a subpoena or a summons, or have any questions at all about these two processes, please call me at Bernardini Law, 386-258-3453. I’ll be happy to discuss your situation with you, at no charge. Together we’ll together to address your situation and plan the most beneficial outcome.

Motor Vehicle Accidents

Auto accident, car accident, automobile accident, collision, car wreck, car crash -
no matter what you call it, the end result can change your life forever.

We are more distracted than ever before when we drive; by our cell phones, texting, radios (most new cars display artist and song title), GPSs, and all the new technology at our fingertips. We’re so used to multi-tasking, we can’t even stop when we get behind the wheel!

The National Safety Council estimates that 38,300 people were killed and 4.4 million injured on U.S. roads in 2015, which is the largest one-year percentage increase in since 1965. Surprisingly, according to Newsweek* magazine, “One of the strongest correlations tends to be between the economy and traffic fatalities.” That makes perfect sense: more jobs, more cars on the road and more people hurrying to get to those jobs. Also, more jobs, more money for more vacation trips – on the road.Accident and death rates always increase over the summer months.

Please take your driving safety seriously. It’s a lot more risky than ever before. And since about 40% of accidents are caused by uninsured or underinsured motorists, make sure you have uninsured motorist coverage. But if you’ve been injured in a car accident, or if a loved one has been in a fatal motor vehicle accident, please call us at 386-258-3453 as soon as possible. We’ll make sure you receive the maximum compensation you’re entitled to. The consultation is always free.

*Newsweek, “2015 Brought Biggest Percent Increase in U.S. Traffic Deaths in 50 Years” by Stav Ziv, 2/17/16

Uninsured Motorist Coverage

Florida does not require drivers to carry bodily injury insurance. 40 % of Florida drivers are either underinsured or completely uninsured for the injuries they cause! One of the main problems is that the worst drivers, who cause the most accidents, have trouble buying insurance to pay for the harm their bad or drunk driving causes. The rest of us suffer.

Your $10,000 mandatory PIP (Personal Injury Protection) insurance will be gone before you leave the emergency room. If the at-fault driver doesn’t have enough or any bodily injury insurance, the rest of your bills will not be covered. How do you protect your family from these horrendous drivers who don't have adequate insurance? You buy uninsured motorist coverage!

Uninsured motorist coverage protects your family from drivers who cause injuries and have little or no insurance. The Florida situation is so bad (even rent a car companies aren't responsible for the harm their renters cause) that Florida REQUIRES insurance agencies to provide uninsured motorists coverage unless you or your spouse or parent sign a form rejecting it. Believe it or not, many very intelligent folks unwittingly sign these rejection forms when buying car insurance.

PLEASE BE CAREFUL WHAT YOU SIGN WHEN YOU BUY CAR INSURANCE! Always opt for the uninsured motorist insurance and protect yourself and your loved ones.

If you have been involved in a car accident, NEVER sign paperwork from the other insurance company or your own that may prevent reimbursement of present and future payments. Talk with a lawyer first. A free consultation is part of our service. Call us at 386-258-3453 now.

The above information is intended for general purposes only and should not be construed as legal advice.

You're Always Entitled to a Second Opinion

Is your current lawyer returning your phone calls? Is he or she giving you straight answers in a timely manner? Are they taking your case as seriously as you are? If not, you can always change lawyers.

You’re always entitled to a second opinion.

If you’re not happy with the service your lawyer is providing you, and you’re not getting where you need to be – when you need to be there – please call me at 386-258-3453 for a second opinion. The consultation is free. We can talk about your case and come up with a plan to get your case back on track and won.

Remember:  If there’s no recovery, there are no charges.

Paul A. Bernardini is Board Certified by the Supreme Court of Florida as a specialist. While all lawyers are allowed to advertise, only certified attorneys are allowed to identify themselves as specialists. Certification is the highest level of recognition by the Florida Bar of the competency and experience of attorneys in the areas of law approved for certification by the Supreme Court of Florida.

Don't wait to get a second opinion. We're here for you.

Lightning Strikes: Definitions

Stay safe! Make sure you know the facts about lightning strikes* to avoid injury:

Direct Strike: These are not as common as people think, but are potentially the most deadly. In a direct strike, a portion of the current moves along the skin (flashover), and a portion moves through the body, usually through the cardiovascular and/or nervous system.

Side Flash or Side Splash: Lightning can jump from one object to another, such as when it strikes a tree and then jumps to a person that is one or two feet away. Since it is common for people to seek shelter from rain under a tree, this is a risk.

Ground Current is when lightning strikes a tree or other object, travels along the ground, and strikes up from the ground. Anyone outside near a lightning strike is a potential victim of ground current. This is the most prevalent cause of lightning-related deaths.

Conduction: Lightning can travel long distances in wires or other metal surfaces. Whether inside or outside, anyone in contact with anything connected to metal wires, plumbing, or metal surfaces that extend outside is at risk. This includes anything that plugs into an electrical outlet, water faucets and showers, corded phones, and windows and doors.

Streamers: As the downward-moving lightning approaches the ground, streamers are spawned. These streamers discharge when the main channel does, causing the same injuries as a direct strike.

And by the way, lightning CAN strike twice!

*National Weather Service, Lightning Science: Five Ways Lightning Strikes People

When Lightning Strikes

Contrary to popular legend, central Florida is not the “lightning capital of the world.” That distinction belongs to Rwanda, Africa, with 2.5 times more strikes than Central Florida. In fact, the Orlando-Tampa area is 14th in a list of strike capitals.* However, even 14th in the world is still Number One in the United States, and Central Florida – from Tampa to Titusville – is nicknamed “Lightning Alley” for a good reason.

We’ve grown up with many myths about lightning. Most people believe that if you can’t see lightning, it can’t strike you. Or that you don’t have to go in until it starts raining. However, if you hear a rumble of thunder, you are close enough to be struck. Lightning can strike as far away as 10 miles, and there is still danger up to 30 minutes after the last thunder is heard.

Since approximately “25 million cloud-to-ground flashes strike the United States every year, it is impractical for the [National Weather Service] to warn of every potentially dangerous lightning event. The key to safety is individual education and responsibility.*

There are “two exceptions:  1) when adults are in charge of groups of children, and 2) situations where responsibility is assumed by organizers and operators of facilities where large crowds are expected, such as sporting or entertainment events.”*

Youth sporting events are particularly susceptible to lightning, because the non-professional adults in charge may not be aware of the dangers and prevention, and children depend on them for their safety. There should be established safety procedures for weather events. Immediate treatment is necessary, and victims do not retain the charge, as some people think.

When lightning strikes and causes injuries, they are often unseen and potentially last for a lifetime. If you or a child has been injured by lightning and have questions concerning liability, please call us at 386-258-3453. Your consultation is free. See below for more facts about lightning.

*Lightning Injuries, Mary Ann Cooper, Christopher J. Andrews, and Ronald L. Holle

Legal Terms You Should Know: Descriptions of Damages

There are some Legal Terms that you should know when dealing with damages in a lawsuit. Here are the main descriptions of damages:

General, Actual, Economic, or Compensatory Damages:  These awards serve to compensate a plaintive for what he or she has lost as a result of a defendant’s wrongful conduct, such as loss of present and future earnings, medical bills, and damage to property. These are finite awards that can be determined or extrapolated because there is a dollar amount associated with them. They can be quantified and readily proven to have occurred.

Non-Economic or Quality of Life Damages:  These damages compensate injuries and losses that are not easily quantified by a dollar amount, such as pain, suffering, permanent disability, blindness, loss of a limb, disfigurement, paralysis, trauma, loss of companionship, consortium (love of spouse), etc.. They are considered Quality of Life Damages, and are separate from economic damages.

Punitive or Exemplary Damages:   Monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for injuries and losses and is intended to punish the defendant. It is also intended to deter the defendant and others from similar and future misconduct. These circumstances typically refer to a situation in which the defendant acted willfully, spitefully, fraudulently, or with complete disregard to the rights of the plaintiff.

Nominal Damages:  Those that consist of a small sum of money, often symbolic, awarded to a plaintiff who has sustained no substantial loss or injury but has suffered an infringement of rights. Included in this category are damages for which proof of loss cannot be submitted.

Damages Cap:  Limits the amount of non-economic damages that can be awarded for a case. For example, the federal government imposes a damages cap of $250,000 for medical malpractice claims. States determine their own damages caps. Florida’s medical malpractice caps are rather complicated.

If you have questions about these terms or any other questions, please call me at 386-258-3453. A consultation is always free. We’re here to help you through the legal process.