Despite the fact that every Floridian who purchases auto insurance must continue to purchase $10,000.00 of P.I.P. coverage, beginning January 1, 2013, the rules governing payment of P.I.P. benefits have changed.  There will be a 14-day window following an accident within which time anyone injured MUST receive treatment in order to receive the benefit of ANY P.I.P. coverage.  Furthermore, acupuncture and massage therapy have specifically been excluded from EVER being covered.

If an accident victim receives treatment within the 14-day window, and is otherwise eligible for P.I.P. coverage, a critical determination must then be made as to whether there is an “emergency medical condition” (EMC).  This will determine whether the patient may be eligible for $10,000 in P.I.P. benefits (if there is an EMC) or whether the patient’s P.I.P. benefits will be limited to $2,500.00 (if there is not an EMC).

An EMC is defined in the new P.I.P. statute as acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably be expected to result in:

1. Serious jeopardy to the patient’s health;
2. Serious impairment of bodily function; or
3. Serious dysfunction of any bodily organ or part.

The determination of whether the patient has an EMC may be made by a medical doctor (M.D.), doctor of osteopathic medicine (D.O.), physician’s assistant (P.A.), or an advanced registered nurse practitioner (A.R.N.P.).  A chiropractor (D.C.) is EXCLUDED from making this determination, although ironically a chiropractor IS able to determine (as is an M.D., D.O., P.A, and A.R.N.P.) that a patient does not have an EMC.

If the patient does have an EMC (as determined by an M.D., D.O., P.A., or A.R.N.P.), he or she may be entitled to receive up to the full $10,000.00 in P.I.P. benefits.  If however, any provider (including an M.D., D.O., P.A., A.R.N.P., or a D.C.) determines that the patient does not have an EMC, the P.I.P. benefits will be limited to $2,500.00.  This limitation is despite the fact that everyone who owns and operates a motor vehicle on the roads in Florida will still be required to PAY FOR $10,000.00 worth of P.I.P. coverage.  Sound fair?  We don’t think so either.

Where will all those savings go, you ask?  To the insurance companies who have, not coincidentally, made massive campaign contributions to our representatives who supported these pro-insurance and anti-consumer amendments.  Perhaps some of our elected officials should get to work for their constituents, as opposed to the big business insurance companies who significantly fund their campaigns.  The insurance companies have continuously complained that P.I.P. needs to be revamped because of rampant fraud.  Despite offering no concrete proof of such rampant fraud, this amendment does nothing to combat it.

Lesser, Lesser, Landy & Smith has been there from the beginning of P.I.P. in Florida.  We have been there to help inform the community about the changes to P.I.P. through the years, and we have otherwise been working tirelessly on behalf of Floridians for 85 years.  Despite these new challenges with P.I.P., we will continue to work hard for you to make sure your interests are protected.  We want you to receive the benefits you paid for if you have been injured as a result of an automobile accident and need care.  Please contact us about any questions you may have about these dramatic changes made to your P.I.P. coverage and any disputes you may have concerning the payment of these benefits.  Unlike certain members of our Legislature, we are here to serve YOU – - not the insurance companies.

Florida is a “pure comparative negligence” state.  Simply put, this generally means that if, for example, you are 25% at fault, you are still entitled to recover 75% of your damages.  Contrast this with a “contributory negligence” state like North Carolina.  There, if you are even 1% at fault, you are barred from making a claim – a very harsh result.

The concept of comparative negligence arises frequently in personal injury and wrongful death claims.  For example, virtually every intersectional accident involves allegations that the other driver was at fault.  One party may argue the other driver was speeding.  The other party may contend there was negligence for making a left-hand turn.  The jury will ultimately decide the apportionment of fault if the parties are unable to reach a settlement.  The injured party’s damages will typically be reduced pro rata for the negligence apportioned to him or her.

One notable exception to the general rule is the alcohol or drug defense adopted by Florida in 1999 and codified at Section 768.36, Florida Statutes.  That defense prevents any recovery at all if the injured party is “under the influence of any
alcoholic beverage or drug to the extent that the [person’s] normal faculties were impaired or the [person] had a blood or breath alcohol level of 0.08 percent or higher” and, as a result, the jury determines the person “was more than 50 percent at fault for his or her own harm.”

Comparative negligence is something insurance companies frequently allege in order to try and reduce the money they rightfully owe.  Indeed, even in simple rear-end car accidents, insurance companies will often allege this defense.  The lawyers at Lesser, Lesser, Landy & Smith, PLLC, have many decades of experience dealing with such antics by insurance companies.  Contact us if you want to know where you really stand.

Many consumers assume that nursing homes will strive to provide good care as they could be held accountable financially for violating a resident’s rights.  In order to avoid a large monetary award, and avoid escalating insurance rates, it is assumed that the facility will use their best efforts to provide good care.  The reality, however, is that many facilities strive not to provide good care but, instead, to create a corporate structure to avoid liability.  As nursing home residents are one of the most vulnerable aspects of our population, it is critical that there are safeguards in place to protect them from harm.  Many nursing home owners, however, have found ways to avoid these safeguards.

Most consumers will be shocked to learn that some nursing homes carry policies of insurance with only nominal coverage, or do not carry a policy of insurance at all.  By choosing to do business without sufficient insurance coverage, they are sending a signal that they are not concerned with accountability.  Typically, these homes have no true assets.  They lease the employees, building, equipment, and other supplies.  All of the leases are with separately held corporations.  Their corporate structure is akin to a shell game.  Before a nursing home attorney can proceed with a claim against any facility, the attorney is charged with the responsibility of obtaining all of the relevant records and determining that a sufficient cause of action exists.  In order to proceed with litigation, the attorney must devote not only his time, but also must outlay significant associated costs.  If there is no insurance, and the nursing home does not have any assets, even if the attorney is successful in obtaining a judgment, he may never be able to recover any money.  As a result, it is becoming increasingly difficult to find attorneys willing to accept such cases.  In turn, since the facility is aware of the fact that attorneys are reluctant to bring suit against them, the quality of care drastically diminishes at that facility.

For any individual with a loved one in a nursing home, accountability is key.  Without accountability, the nursing home owners and staff do not have that added incentive to provide good care.  Based upon our experiences, the less the nursing home can be held financially accountable for the harm it has caused, the less likely it is that the nursing home’s residents will receive good care.  In order to ensure that your loved one receives good care in a nursing home, do your research.  Find out the name of the insurance company that insures the nursing home as well as the policy limits.  If the facility is not insured, determine whether or not it part of a large chain with significant assets or if it is simply a corporate shell.  At Lesser, Lesser, Landy & Smith, we have aggressively pursued claims against both uninsured as well as insured nursing homes in order to hold them accountable.  We are very proud of the fact that we have not only been able to help our clients, but also the community as a whole by forcing the nursing homes to provide quality care to the elderly.

Often, claims are denied simply for a lack of medical documentation.  It is very important for a disability claimant to furnish a detailed and accurate history of medical treatment for the injury or disability that prevents them from working.  If the disability examiner is not made aware of those records, they will have nothing upon which to base a favorable decision and you will be denied disability benefits.  Sometimes it is the lack of documentation of the claimant’s disability within the medical records which causes the denial of benefits.  For instance, perhaps the treating physician did not include any statements regarding the patient’s current level of functioning and the functional limitations that would prevent him or her from engaging in work activities.

Of course, if the claimant does not follow through with medical treatment or does not seek the proper treatment for her disabling condition she will almost assuredly be denied disability benefits.  Even if the claimant has a condition for which there are few treatment options, it is extremely important to follow through with all available options.  From Social Security’s point of view, a history of medical evidence from the date of onset through the present is necessary for you to prevail on your claim for Social Security Disability benefits.

An attorney experienced in Social Security Disability claims can help make sure that all of the necessary facts are presented in the initial application, the reconsideration stage and at the administrative hearing level.  If you are about to apply for Social Security Disability benefits or have already been denied, you should consult with an attorney who understands the details of the system and what is required to prevail.  The law firm of Lesser, Lesser, Landy & Smith, PLLC represents disabled persons who are seeking Social Security Disability or Supplemental Security Income benefits.  Please contact our office for further assistance.

There are two major exceptions to this general rule.  “Willfully” selling or furnishing alcoholic beverages to someone under the legal drinking age creates liability for injury or damage caused by or resulting from the intoxication of the minor.  The same holds true for “knowingly” serving or furnishing someone who is “habitually addicted” to alcoholic beverages.  Section 768.125, Florida Statutes.  Regardless, a commercial vendor is not generally liable if alcohol is sold to an adult in a closed container with the understanding that it will not be consumed on the premises.

Significantly, Florida law does not provide a cause of action for simply serving an adult too much alcohol.  Section 768.125 provides protection unless the person served is a minor or is known to be “habitually addicted” to alcohol.  Obviously, a responsible social host or business should make every reasonable effort to watch a guest’s level of alcohol consumption — regardless of 768.125.

It is important to know your rights.  If you or someone you know has been injured due to a drunk driver, the experienced attorneys at Lesser, Lesser, Landy & Smith are here to help.  We have handled many serious drunk driving wrecks. Contact us for a free consultation.

Many residential lease agreements provide for the payment of a security deposit to be held by the landlord in the event the tenant causes damage to the property.  In a residential landlord/tenant relationship, the tenant is supposed to leave the premises in broom swept condition with no damage to the premises; normal wear and tear excepted.  Sometimes though, at the end of the lease term, the landlord and tenant will not see eye to eye as to damage to the property and whether or not the tenant left the premises in broom swept condition.

Many times an initial walk thru will be conducted and existing damage to the landlord’s property will be noted either by way of a checklist or by way of written description.  At the end of the lease term, another walk thru may be conducted and existing damage will again be noted on a checklist or by way of written description of the damage.  Whether you are the landlord or the tenant, one thing that could help in the event of a dispute as to whether or not the tenant caused the damage, or whether the damage was existing at the beginning of the lease, is for the parties to the lease agreement to photograph such things as the property, appliances, walls, doors and fixtures.   In the event of a dispute at the end of the lease, photographs and/or video will oftentimes be the deciding factor as to whether the damage was caused by the tenant or was preexisting prior to the commencement of the lease.  An important factor to consider, though, is that with the ability of having a date and time stamped onto a photograph, or inserted into a video, the parties should make certain that the date and time are set correctly.  Dates and times on a photograph, or in a video, are often just as important as the photograph or video itself.

If you are a former landlord or former tenant and think you may need to pursue litigation to determine your rights to a security deposit, please seek the assistance of the lawyers from Lesser, Lesser, Landy & Smith, PLLC.

The study also found that children were at greater risk than adults for falls from a golf cart. Despite these statistics, with the rise in use of golf carts we are finding that children are more often being permitted to utilize golf carts by their parents or other adult golf cart owners. Under Florida law, a golf cart is considered a “dangerous instrumentality.” As such, the owner of a golf cart can be held responsible for the negligent use of the golf cart by any person whom they entrust to use that golf cart, including a child. This is true both on and off the golf course.

Injuries from golf cart accidents can be very serious and, in some cases, fatal. The attorneys at Lesser, Lesser, Landy & Smith have decades of experience helping injured victims of golf cart accidents. If you, a family member, or a loved one were involved in a golf cart accident, call us for a free consultation.

When deciding whether or not to file a commercial litigation lawsuit, it is necessary to conduct a thorough analysis of the facts, damages incurred, likelihood of success, and the cost and time necessary to achieve a desirable end result.

Facts and other elements vary drastically from case to case, which is why it is recommended to consult an experienced attorney. The lawyers at Lesser, Lesser, Landy & Smith have many years of experience in handling commercial litigation type cases.  During an initial consultation, we help analyze cases by examining the strengths and weaknesses and determining whether it is wise to pursue litigation. If appropriate, we stand ready to represent your interests to the best of our abilities.

If you think you may need to pursue litigation, please feel free to contact us for an initial consultation.

• On average in the United States in 2009, someone died in a fire every 175 minutes, and someone was injured every 31 minutes.
• Deaths from fires and burns are the third leading cause of fatal home injury.
• Fatal fire and burn injuries cost $3 billion, representing 2% of the total costs of all fatal injuries.
• Hospitalized fire and burn injuries total $1 billion, or 1% of the total cost of all hospitalized injuries.
• Non-hospitalized fire and burn injuries cost $3 billion, or 2% of the total cost of all non-hospitalized injuries.

What can you do to protect your family from fire and burn injuries?  The data compiled by the CDC is compelling:

• Approximately 4 out of 10 home fire deaths occur in homes without smoke alarms.
• Smoking is the leading cause of fire-related deaths.
• Cooking is the primary cause of residential fires.
• Alcohol use contributes to an estimated 40% of residential fire deaths.
• Most victims of fires die from smoke or toxic gases and not from burns.

The answers are obvious, aren’t they?  If you do not have smoke detectors, get them – TODAY.  If you have smoke detectors, when did you last change the batteries?  If you do not know the answer, change them – TODAY.  Quit smoking, but if you insist on smoking, never smoke in bed or while sleepy.  Never leave the kitchen unattended while cooking – even “for a minute.”  The statistics show that alcohol contributes to nearly half of all residential fire deaths, so know your limits and do not make a bad situation worse.  If you find yourself in a building that is on fire, remember to crawl low in the smoke to the nearest exit; the freshest air is near the floor.

Burn injuries are notoriously painful and can cause systemic injury throughout the body.  Death resulting from fire and burn injuries can truly be described as horrific.  If you or your family are confronted with burn injury or wrongful death caused by the negligence of another, contact Lesser, Lesser, Landy & Smith for a free consultation.  We have decades of experience.

Texting has become one of the primary sources of communication, and its usage continues to increase. A study performed by the Pew Research Institute revealed that 72% of American adults text, and over 50% of teenagers send 50 or more text messages per day!¹ Texting may provide a good alternate means of communication, but we all owe it to ourselves and those around us to do so responsibly.

According to the Automobile Association of America (AAA) Foundation for Traffic Safety, 88% of drivers believe texting and emailing while behind the wheel creates a serious threat to their safety (makes you wonder what the other 12% are thinking), while 25% of drivers admitted to texting or sending emails while driving.²

“Distracted driving” has become an increasing problem as the mechanisms for becoming distracted have also increased. There are three primary types of distraction according to the National Highway Traffic Safety Administration (NHTSA):

1. Visual: taking your eyes off the road;

2. Manual: taking your hands off the wheel; and

3. Cognitive: taking your mind off what you are doing.

Distracted driving includes not only texting, but also eating, talking to passengers, grooming, and changing the radio station. While all such distractions can endanger roadway safety, texting is the most dangerous because it involves all three types of distraction. According to the NHTSA, in 2009, 5,474 people were killed, and an additional 448,000 were injured, in motor vehicle crashes involving distracted driving. Drivers who use hand-held devices are also four times as likely to get into an accident that causes them injury.³

It’s clear that texting while driving poses a problem, but the question remains – what do we do about it? In January, 2011 the Department of Transportation (DOT) issued a federal texting ban for truckers, providing for fines of up to $2,750.00 for truck drivers who text while driving a commercial vehicle. Earlier, in 2009, President Obama issued an Executive Order banning federal employees from texting while driving federally-owned vehicles. 33 states, plus the District of Columbia and Guam, have banned texting while driving. Despite several bills presented in the Florida Legislature to prohibit texting while driving, no such bill passed. Such bills ranged from implementing educational programs to levying fines.

Despite the lack of legal initiative taken by our Legislature, we must all take the logical, common-sense initiative to make our roads safer by practicing what we all seem to preach. If the vast majority of us agree that texting while driving creates a serious threat to our safety, and the statistics surrounding distracted driving supports this belief, we all must vow to not to text while driving to create safer roads for us all. This may seem overly simplistic, but keep that commitment in mind the next time you are driving and have the urge to pick up your phone to send a text message. The lawyers and staff at Lesser, Lesser, Landy & Smith are confident that the intended recipient of your text would prefer to wait until you stop driving to receive it, rather than run the risk of never having the opportunity to receive it.

The lawyers and staff at Lesser, Lesser, Landy & Smith are dedicated to not only helping those who have been injured as a result of someone else’s negligence, but also getting the message out about the dangers of texting while driving. Much like drinking and driving, texting and driving don’t mix.

1. Pew Internet. 2010. “Cell phones and American Adults.” http://www.pewinternet.org/Press-Releases/2010/Cell-phones-and-American-adults.aspx.September2

2. AAA Foundation for Traffic Safety. 2010 Traffic Safety Culture Index. http://www.aaafoundation.org/pdy/2010TSCIndexFinalReport.pdf

3. U.S. Department of Transportation, 2009. “Statistics and Facts About Distracted Driving.” http://www.distraction.gov/stats-and-facts/index.html