Kill PIP Now!

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The Florida House has passed HB 719, a bill which repeals provisions relating to Florida Motor-Vehicle No-Fault Law. This is great news! Personal Injury Protection benefits are a required type of motor-vehicle insurance that provides minimal protection and has led to an incredible amount of litigation and confusion. Florida motor-vehicle laws must require mandatory bodily injury insurance for all registered vehicles. Bodily injury insurance pays for the damage to a person that a careless driver causes. Florida is one of the few states in the entire nation that do not require this vital insurance protection. Thankfully, the Florida House has passed a law that repeals this ancient and obsolete PIP coverage in favor of true financial responsibility. Drivers will now be required to carry $25,000 worth of insurance coverage per person and $50,000 per policy in order to register their car in Florida. This is positive and helps all Floridians. Finally!

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Pedestrian Accidents in Florida

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According to a March 17, 2021 article in The Miami Herald by Linda Robertson, Florida is the most dangerous state in the country for pedestrians. It ranks #1 as the state where a person walking is most likely to be struck and killed by a motor-vehicle according to the “Dangerous by Design” report. This report from the National Non-Profit Smart Growth America and its National Complete Streets Coalition Program has identified Florida as the most dangerous state in the nation for people walking on streets.

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Loving vs Virginia

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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Frivolous Lawsuit

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A recent Miami Herald article detailed the Florida Legislators efforts to limit business liability in Covid-19 lawsuits.  A lawyer involved with the legislative workshop described it as a “solution in search of a problem”.  For years, the Republican controlled house and senate in Florida has created crisis after crisis in order to enact laws that shield various sectors from lawsuits.  These frivolous laws pretend to exist to prevent the avalanche of lawsuits that are coming.  In actuality, these lawmakers are pandering to business groups and other influential organizations to back them.

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MIAMI HERALD- OPINION: CONTEMPT OF COURT BY JEFF DAVIS

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CONTEMPT OF COURT Like many who read the Oct. 29 article “Broward assistant public defender curses prosecutor on Zoom,” I was shocked. In 34 years of practice in courts throughout Florida, I have never once heard an attorney speak to a fellow member of the bar in such a manner — especially in open court before a judge and other litigants. It is beyond unacceptable and the attorney should be reported to The Florida Bar and sanctioned by the judge….

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DAVIS LAW HIRED TO INVESTIGATE DARK MONEY IN FLORIDA POLITICS

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The Florida State Senate District 9 Race is shaping up to be the most expensive state race in this election.  The Florida State Senate District 9 covers all of Seminole County and part of southwest Volusia County.  The race is between Republican Jason Brodur and Democrat Patricia Sigman.

 

A dark money entity known as Floridians for Equality and Justice has been spewing false information in mass mailings.  This mysterious entity lists its business address at a Miami UPS location (coincidentally, the same location used by two previous republican campaigns).  This dark money group filed with the Division of Elections after it had already mailed out flyers and emails designed to smear Patricia Sigman.  In one of the more egregious mailing efforts, this group unlawfully used State Senator Annette Taddeo’s image in a false information mailer.  Senator Taddeo has hired Davis Law as local counsel to investigate the origins of this dark money mystery group.  Despite having nearly a quarter of a million dollars in its bank account, there is no information yet on where this outfit gets its money or how much is being spent.  The treasurer of this group, Stephen Jones, likewise remains an enigma.  The phone number listed in the state filings, like the address are not traceable and no one knows who is behind this dark money scheme.  This entity, Floridians for Equality and Justice has a website which is registered to a proxy company. It alleges that it “seeks to educate and highlight dynamic progressive issues across the state of Florida regardless of race, gender, religious beliefs or citizenship status”.  The same “progressive” entity lists no members, has no contact information and only includes links to news stories.  The progressive organizations which are mentioned on this outfit’s website include Equality Florida and Ruth’s List Florida. They have no knowledge of the group or its activities.  Interestingly, this group’s listed address, 1421 S.W. 107th Avenue in Miami is actually a UPS store location that was also used in 2016 by republican State Senator Anitere Flores and in 2020 by Miami-Dade Mayor Carlos Jimenez.

 

Senator Annette Taddeo of Miami represents the 40th District encompassing Kendall and surrounding areas in southern Miami-Dade County.  Despite Senator Taddeo being a strong supporter of candidate Patricia Sigman, the shadowy group, Floridians for Equality and Justice sent out mailers claiming that Senator Taddeo supported another candidate in the race and wrongfully used her photograph.

 

“I am outraged this organization would use my likeness to promote a candidate I do not support!”, declared Senator Annette Taddeo.  “Patricia Sigman has my endorsement because she is the only candidate in this race who has a proven track record of fighting on behalf of central Floridians.  Dark money attacks have no place in a democratic primary, and a real progressive would never resort to using dark money in an election.”

 

Senator Taddeo has hired Davis Law to assist Tallahassee lawyer, Mark Herron to investigate this dark money entity and expose the source of their money.

 

To commence the investigation, the lawyers filed what is known as a Pure Bill of Discovery.  The pure bill of discovery is an ancient equitable remedy which seeks relief in the form of discovery.  In this case, it was filed to obtain disclosure of facts within the dark money Defendant’s knowledge, including written materials and other documents in this entity’s custody or possession.  This unusual tactic only seeks discovery – no other remedy unlike a normal lawsuit.  In Florida the Pure Bill of Discovery dates back to the 1882 case of B.H. Thrasher v. Doig & Geiger, 18 Fla. 809 (Fla. 1882).  In 1927, the legislature adopted former Florida Statute 90.17 and 90.18 which allowed for interrogatories and depositions in cases of law under certain circumstances.  While these statutes were intended to be a substitution for the equitable bill of discovery, they were limited to discovery of “essential matters” not to make the “opposite party a witness to testify respecting the whole case”.  See May v. Whitehurst, 144 So. 326 (Fla. 1932).  Despite the current civil practice in Florida making it unnecessary to initiate a separate equitable action to obtain discovery, Florida has never abrogated the complaint for a pure bill of discovery.  According to The Florida Bar, a complaint for a pure bill of discovery, while not obsolete, has limited use in today’s legal environment.  It has said that this archaic device has its place in the toolbox of modern-day lawyers under limited circumstances.  The action filed by Senator Taddeo seeking a pure bill of discovery against Floridians for Equality and Justice and Stephen Jones, as chairman and treasurer of a Florida political committee is a prime example of its applicable use.* Civil E-Filing: Filing # 111991126 E-Filed 08/18/2020 02:29:39 PM

 

So far, a return of service from the process server has indicated that the UPS store which this group claims is its address in State filings, UPS has no such record of the entity.  Additionally, efforts to locate Stephen Jones have been unsuccessful.

 

Where did the nearly $250,000 for this committee come from?  Who are the owners? Who are the people involved and why are they hiding? Was an entity related to the opposition candidate somehow involved?  The search for the truth continues.  Davis Law is proud to assist Senator Taddeo in her lawful efforts to pull this shadowy entity out into the sunlight.  Transparency is essential for the political process to function.

 

As Patrick Henry famously said, “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.” 

 

Davis Law is proud to be associated with the search for truth!

DAVIS LAW SETTLES DIMINISHED VALUE CLAIM

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DAVIS LAW is proud to announce a resolution of a diminished value automobile claim. The diminished value claim involved a car being worth less money, even after a repair, because it was in a crash. The law firm represented a client that had purchased a pre-owned BMW from a Miami car dealership. The car came with a 14-day return policy. 4-days after buying the car, the client was rear-ended, and the car sustained $16,000 in property damage. There was no injury claim made. The client contacted Davis Law to see whether a claim could be made for loss of value to the vehicle following the repair. The client claimed that he took the vehicle for repair to the dealership where he purchased it. The dealership explained the two-week return warranty was now void because of the crash and, that even though the vehicle was restored to its pre-accident condition, it now was not worth the same as it was pre-crash. The dealership explained that a Carfax would disclose the crash and that a potential future buyer would not pay the same amount of money for the vehicle as one that had not been in an accident. The car now had “stigma” damage and market psychology had lowered the value.
The law firm researched Florida law and found that such a claim could be asserted against the at-fault party. At first, the insurance company for the careless driver denied the diminished value claim and said once a vehicle was repaired, they had no further responsibility. The law firm retained an expert witness in the field of auto appraisals. An automobile appraisal company can evaluate the minimum diminished value of a vehicle, following a crash. Typically, that analysis follows a detailed physical inspection of the vehicle, a review of all accident repair information and a comprehensive and thorough market analysis. The expert witness determines the minimum diminished value based on wholesale market pricing and the standard sliding scale established by the International Society of Automotive Appraisers or a fair market offer to purchase after the date of loss. Fair market value is the highest price on the date of the valuation that would be agreed to by a good faith buyer and seller. The replacement value of a vehicle is defined as the actual cost of exactly duplicating the vehicle as if it were subject to a total loss. The fair market value of the vehicle must be determined prior to the loss/crash and utilizes a method of valuation that involves current market data comparison supplemented by cost information.
Carfax and Autocheck, the nation’s largest vehicle history report providers, buy their data from a variety of sources including police departments, fire departments, vehicle auction, insurance
companies, departments of vehicle agencies, car dealerships, collision repair shops, car rental companies, and replacement part suppliers. In today’s digital world, crash reports and insurance repair histories are almost always captured by these reporting agencies and serve to notify a potential buyer of the car’s history. With this detailed information available to the average buyer, dealerships are now routinely providing a vehicle history or Carfax with every car they sell to avoid subsequent accusations of incomplete disclosure.
Following a determination from the expert witness retained for our client, a significant loss of value or diminished value was placed on his BMW. The law firm then reviewed the state of Florida law and found no specific case, statute or rule that prevented the presentation of the diminished value case. The only cases which directly addressed such claims deal with people that are presenting a diminished value claim to their own insurance company. Most insurance policies do not cover their own insured for this type of loss. In the case of Rezevskis v. Aries Insurance Company, 784 So.2d. 472 (Fla. Dist. Ct. 2001), the appellate court determined that the insured (Rezevskis) could not recover damages for diminished value of his car following damage from hurricane Irene from his own insurance company, Aries. The court held that the insurance policy only had an obligation for repairs or replacement and not to restore the car to its previous value. This rule was similarly followed in Siegle v. Progressive Consumers Ins. Co., 819 So.2d. 732 (Fla. 2002), where the Supreme Court of Florida held that an automobile collision policy which provides that the insurer must repair or replace the damaged vehicle with other of like kind and quality, does not obligate the insurer to compensate the insured in money for any diminution in market value after the insurer completes a first rate repair which returns the vehicle to its pre-accident level of performance, appearance and function. These cases that prevent claims against one’s own insurance company (first-party claims) for diminished value also extend to prevent diminished value claims where a contract exists for repairs for real property. In Orkin Exterminating Co. v. Delguidice, 790 So.2d. 1158 (Fla. Dist. Ct. App. 2001), the appellate court reviewed the trial court’s decision in a case where a homeowner sued Orkin for the loss of value to his home that had repeated instances of termite infestation that Orkin failed to resolve. The homeowner had a contract with Orkin that provided for Orkin’s termite treatment guarantee. The homeowner had sued Orkin claiming that the repeat instances of termite infestation severely diminished the value of his home. The Court held that the homeowner was limited to the specific remedies set forth in the contract that he had with Orkin and that Orkin was not responsible for the diminished value.
These are first-party cases against companies where an insurance contract or other agreement exists. There is no such rule where the injury, loss or damage is caused by a third-party where no relationship or privity of contract exists.
In the 1982 case of McHale v. Farm Bureau Mutual Ins. Co., 409 So.2d. 238 (Fla. 3DCA 1982), the Third District Court of Appeal held that it is not necessary to present evidence of market value of a damaged vehicle to prove a compensable claim based on a cost of repair theory. The court in McHale discussed what is known as the Restatement of Torts which is a treatise issued by the American Law Institute that summarizes the general principles of common law in the United States Tort Law. Section 928 of the Restatement of Torts provides for, “due allowance for any difference between the original value and the value after repair”. The court noted that compensation for repairs is an alternative method of proving damages which purposes to restore the injured party to the same position he was in prior to the injury. The court gave further detail which likely forms
the basis for diminution of value claims in Florida. They stated, “the proper interpretation of the Restatement of Torts rule is that damages are not limited to the cost of repairs actually made where Plaintiff shows that the repairs did not put the property in as good a condition as it was before the injury. In such cases, the cost of the repairs plus the diminution in value will ordinarily be the proper measure of damages, with the burden on the Plaintiff to prove in addition to the cost of repairs, that he suffered the additional damage of diminution of value by virtue of the vehicle having been involved in an accident.
That case doctrine allowed for the creation of the Florida Standard Jury Instructions in Civil Cases Relating to Property Damage (501.2h) which clearly allows for the Plaintiff to claim “the difference between the value of the vehicle immediately before the incident complained and its value immediately afterward”.
After a significant amount of litigation over whether or not the owner of the BMW had the right to assert a claim against the at-fault driver for the diminution of value of his vehicle*, the insurance carrier decided to pay 100% of the diminished value damages plus the costs of the litigation.
*(There was no argument about the quality of the repair which the insurance company had already paid for.)
If you are in an automobile accident involving a late model vehicle (less than 5-years old), your vehicle may still be worth less money because of the accident even with a first-rate repair job. Please contact Jeffrey R. Davis at Davis Law for a free consultation as to whether or not you have a diminished value claim for your vehicle. We are bilingual and available on a 24/7 basis. Our telephone number is (305) 577-3777 and our offices are located in Coral Gables, Florida; however, we handle cases throughout the state.

COVID-19 WORKGROUP RELEASES VIDEO ABOUT THE STEPS BEING TAKEN TO PROTECT THE PUBLIC AT COURTHOUSES

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The Supreme Court’s Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 has released its first video to help educate the public about the steps courts, clerks, and other stakeholders are taking to promote the health and safety of people visiting courthouses as the justice system returns to more complete operations.

The video, a minute-long public service announcement, emphasizes social distancing measures being implemented in courthouses across the state, the extra care being taken to continuously clean and disinfect courthouses, and the need to wear masks when doing business at the courthouses.

The video is being distributed to the 20 judicial circuits’ public information officers and clerks offices around the state to be posted on circuit websites and used on social media platforms. The video is a part of a broader communications campaign including social media messaging and graphics. The video also refers those who watch it to a newly created Steps2safeCourt.org webpage with further resources and links to local information where additional information about what to expect when visiting a courthouse may be found.

The video was produced by a collaborative group of staff from the trial courts, the Office of the State Courts Administrator, The Florida Court Clerks & Comptrollers, and The Florida Bar.

“As with the workgroup itself, the different voices of our partners in the clerks’ offices and at the Bar improve this communications strategy and make it more likely to succeed,” said Judge Lisa T. Munyon, an Orlando circuit judge and chair of the COVID-19 Workgroup. “The public, and all our stakeholders, need to know what we’re doing to address health concerns as we expand operations. It’s critical the message get across, particularly as we prepare to return to jury trials. I think this goes a long way to help.”

Munyon said the network of communicators in the Florida Courts Public Information Officers are a real strength of the state courts.

“We speak with one voice in the judicial branch and with this collaboration we’re making that voice resonate even more,” Munyon said.

The communications subgroup is also establishing guidelines/best practices for the information to be provided to prospective jurors in summonses, on court and clerk websites, via public information campaigns by the courts, clerks, and the Bar on courthouse signage, and in court/clerk telephone recordings regarding the precautionary measures being taken to protect public health and safety.

Polk County Clerk and Comptroller Stacy M. Butterfield, CPA, a member of the COVID-19 Workgroup and president of the Florida Court Clerks & Comptrollers, said the clerks work closely with courts on so much, that this joint communications plan makes sense.

“We can amplify our message of preparation and access when we speak together with our partners,” Butterfield said. “Clarity and transparency are going to be essential as we begin the process of calling Floridians to jury service. We think this campaign with the Bar and the courts is a key part of getting our message out effectively.”

While jury trials remain suspended, pilot projects to test innovations in five circuits are set to begin soon. Chief judges may begin jury trials as soon as 30 days after judicial circuits successfully transition to phase 2 of reopening, as described in the most recent updates to orders from Chief Justice Charles Canady about expanded access.

A second animated video focused on instructions for those called to jury service is set to be released in early July. By then, a second round of social media messages and graphics about jury service will be delivered as well.

Spanish- and Creole-language versions of the videos are also being made with the help of staff in the 11th Judicial Circuit.

“We are stronger with one voice,” Butterfield said.

Falling Gate Case Resolved

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Jeffrey R. Davis, P.A. is proud to announce the law firm has successfully resolved a lawsuit involving a falling gate that injured a young child. The five-year-old boy was playing in the yard of the house his parents rented when he slid a heavy metal gate open causing it to fall off its track. The boy tried to run as the gate fell but unfortunately it happened too quicklyand pinned him against the concrete driveway. He sustained a fracture that resulted in a two-week hospital stay. Fortunately, after several months of immobility, the boy was able to make a full and complete recovery.

In this case, the age of the child was a significant factor in assessing responsibility for the incident. In Florida, a child under six years of age cannot be held responsible for negligence. This means that no assessment of fault can be made against the child individually; however, his parents can be held responsible for failing to supervise. This law dates back to the Supreme Court case of Swindel v. Hellkamp, 242 So. 2d. 708 (Fla. 1970). That case involved a four-year-old child running into the street and getting hit by a car. The Florida Supreme Court stated; “In the absence of a legislative declaration, it is our opinion and we so hold, that the child herein involved and any other child under six years of age is conclusory presumed to be incapable of committing contributory negligence. This holding is compatible with the common-law rule that a child under seven is conclusory presumed to be incapable of committing a crime, inasmuch as a child must learn individual safety at an early age but social consciousness comes at a somewhat later age”.

The homeowner had no insurance. Apparently, the gate had been installed years before by a previous tenant and no permit was obtained. The owner of the property was advised by the tenant that lived in the house before the young boy’s family that the gate was not properly attachedand would fall when completely opened. Not only did the landlord not get the gate fixedbut they never warned the young boy’s parents about this problem.

During the lawsuit, the landlord blamed the young boy’s family for the accident and claimed that the child’s father was the one that installed the gate. Our lawyers were able to show through prior Google Street photographs, that the gate had been in existence for years.Our legal team also tracked down the previous tenant who had complained to the landlord about the gate not being safe. The case settled at mediation, right before trial for a confidential sum that will pay for all of the medical bills and provide for the child’s financial security once he is an adult.

At Jeffrey R. Davis, P.A., we represent victims of injuries caused by dangerous conditions on property. These cases, known as premises liability cases, often involve issues of construction, engineering, architectural design and property management. It is often necessary to work with experts in multiple fields in order to properly prepare premises liability cases for trial. If you have been injured because of a dangerous condition on a property, please call Jeffrey R. Davis, P.A. at (305) 577-3777. We are available on a 24/7 basis and are bilingual. All consultations are free of charge.