Avera Law Firm

The Avera Law Firm Blog is designed to update clients, vendors, and other interested persons regarding law firm news, personnel, legal issues, and legislative issues. The firm management welcomes posts and questions to the blog as an interactive means to provide information to the public.

Sunday, March 19, 2006

Sovereign Immunity Caps? How Do They Work?

After I posted some information about sovereign immunity and the caps that are imposed upon a claimant, someone posted a question about how they work. Let's work through a scenario on a case we handled a couple of years ago.

Let's say a deputy with a sheriff's department is responding to a disturbance call. There is really no rush to get there. A couple is arguing and one of them have called the sheriff's department. The deputy is relatively inexperienced.

As the deputy is on his way to the call, driving 20mph over the speed limit, he approaches a red light. He turns on his overhead lights, but not his siren.

A gentleman is driving thru the intersection with the green light. He is divorced but has 4 children he is supporting. The deputy runs the red light without stopping and plows into this gentleman's car. The gentleman and father of 4 dies from the collision.

Under current Florida law, the deputy cannot be individually sued because he was acting within the scope and course of his duties. The sheriff's department can be sued but their liability for damages is capped.

The family files a lawsuit against the sheriff's department for negligence. The sheriff's department refuses to even consider paying anything over their statutory caps of $100,000 per person of $200,000 per incident.

A jury hears the case and returns a jury verdict of 7 figures. The sheriff's department pays $200,000 and says the case is over. Can you collect the amount over $200,000?

To collect anything over $200,000, your lawyer will have to find a member of the Florida house of representatives and the Florida senate to sponsor a "claims bill". A claims bill is a bill that the legislature considers, after it passes through committees, to become law requiring the offending agency to pay the amount over the caps. In the last 4 years, passing a claims bill in the republican controlled legislature has been almost impossible.

So, in these days and times, it is often difficult to find a lawyer willing to undertake a sovereign immunity case. And, even if the jury returns a large verdict for all of the damages, there is no guarantee that the legislature will authorize a claims bill for the amount over the cap limits.

Hardly a fair system but that is the one you and your family are faced with today.

Please feel free to submit comments or ask questions. As always, be healthy and be safe.

posted by Mark Avera at 3/19/2006 06:08:00 PM | 0 comments

Monday, March 13, 2006

Sovereign Immunity: Shielding Government from Suits by Citizens

As I sit at home preparing for a hearing tomorrow before a circuit judge in case where a lady who was mother to four adult children unnecessarily died, it struck me that even the government twists the law to avoid being held accountable for unconscionable negligent acts.

In October 2004, our client was attending a wedding in South Carolina. Her mother lived with she and her husband. Her mom was 58 and had a history of diabetes and high blood pressure. She began calling home to check on her mom and could not get an answer. When she called throughout the day and still could not get an answer, she called her neighbor and asked her neighbor to go over to check on her mom.

The neighbor went directly next door and could not get an answer to the doorbell and her knocks on the doors and windows. She called 911 and two sheriff's deputies responded.

The deputies entered the house through an unlocked window in the back of the house. They let the neighbor and her dad into the home. Our client's mom was found in her bed. The deputies began to shake her roughly and shout out her name, along with the neighbor, all to no avail. Absolutely no response was observed by the neighbor or her dad. Her dad suggested that perhaps she was in a diabetic coma. The deputies rebuffed that suggestion and tried to arouse her again by shaking her. At no time did our client's mom ever awaken, stir, or give any indication that she was anything but unconscious.

Incredibly, the deputies suggested that the neighbor leave the side door unlocked and come and check on this lady from time to time. The neighbor was quite taken aback by this suggestion. But, believing that the deputies respond to these kinds of calls all the time, she did not push the matter further.

Early the next morning, she went back over to the home and entered to find that her neighbor's mom had not moved and had soiled herself. She immediately called 911. The operator said she would send a deputy and the neighbor begged her to not do that and to send an ambulance. Once the ambulance arrived, they found our client's mother unconscious. She was rushed to the hospital where she died 6 days later. A forenic pathologist reviewing the case has rendered an opinion that had the deputies called an ambulance, as common sense suggests, physicans would have been able to save her life.

The department that was sued has filed a motion to dismiss this case arguing that the deputies had no duty to call an ambulance. The department argues that whether to call an ambulance or not was discretionary; and that they cannot be held liable for NOT calling an ambulance.

As a trial lawyer, I often watch the rantings by some who would take away a citizen's right to hold someone accountable for causing damages through negligence. They make up stories and post them on the internet (ever heard about the man who was driving the motor home, got up while driving to make coffee, and sued the motor home manufacturer when it crashed?) to inflame people's sense of what is right and what is wrong.

Meritless cases? Sure. They happen from time to time. But judges and juries are smart and usually they are thrown out of court. One of my clients was sued not long ago by an employee who ran into the back of another car. He first claimed he was looking for his cell phone. Later he tried to argue that the brakes were faulty. We secured affidavits from the people who had driven the car in the days before the crash to show there was nothing wrong with the brakes. I called the lawyer representing this person and he fired the client. That is usually what happens to meritless cases a vast majority of the time.

But what I never hear them talk about, are stories such as what happned to my client's mother and how this law enforcement agency is defending it. This kind of nonsense happens all of the time in our courts, but you never hear about it. Why? Perhaps it is of less interest to the media and the public that someone who gets 3rd degree burns from McDonald's coffee.

I will write from time to time about cases we are handling and cases in the media. If you have any questions, don't hesitate to ask.

Be well and be safe.

posted by Mark Avera at 3/13/2006 09:19:00 PM | 1 comments

Saturday, March 11, 2006

Proposed Florida Legislation on Malpractice Experts

In 2003, the Florida Medical Association (FMA), backed by malpractice insurers, proposed a drastic change in the laws pertaining to medical malpractice. Their aim was to limit all non-economic damages to $250,000 in malpractice cases. They were unsuccessful in that draconian attempt, but they did succeed in persuading the legislature to limit non-economic damages to $500,000 as to physicians and other medical care providers and $750,000 as to hospitals. Walking the halls of the legislature in white lab coats and wearing stethoscope, doctors claimed that the legislation was needed because of frivolous lawsuits.

Frankly, the entire "frivolous" claim was fabricated by the medical lobby. Medical malpractice cases are waaaaay too expensive to even think of accepting a case without merit. I and my colleagues rarely, if ever, hear of cases that are without merit. We told this to legislators at every opportunity. Then, the Florida Senate made the bold move of placing people under oath. When that happened, no one in the medical lobby would blame frivolous lawsuits anymore. They shifted their argument to doctors leaving the state. But the statistics simply did not support them.

And don't forget, caps on damages don't affect frivolous cases; if they exist at all. Caps on damages simply make it impossible for the catastrophically hurt from ever recovering anything close to their full damages. The whole argument by the medical lobby and their insurers was a complete farce. The simple fact was that they did not want to be sued.

Now, in 2006, having failed to put a stop to malpractice suits, their next attempt is to require that all experts in malpractice cases be licensed to practice in Florida. Only Florida. Doesnt matter if you are trained at Harvard and practice at one of the best hospitals in North Carolina. The medical lobby doesnt want you to act as an expert n Florida. Such legislation will guarantee that defense experts will come from Florida, but it will virtually make it impossible for an injured party, or the executor of their estate, from finding an expert who would be willing to testify in a case of clear malpractice.

Why? Because the medical community will ostracize anyone who testifies that another doctor committed malpractice. It is for that reason that injured parties must often go to other states to find experts who will review a case and testify that malpractice occurred if it indeed did. By blocking those out of state physicians, the medical lobby makes it impossible to prosecute a medical malpractice case when a person is injured or killed by malpractice. In essence, it is legislation meant to protect the absolute worst of the doctors in Florida.

As this bill makes its way through the legislature, who will be your voice in Tallahassee? Your doctor? Most likely not. Insurance lobbyists? I don't think so. How about your community hospital? Nope. The fact is, you will have no voice in Tallahassee.

Take a minute and write your state house member and senator and let them know you oppose this legislation and tell them to oppose it. In the future, if malpractice were to ever take away you ability to work, this legislation will dictate whether you could ever mount a case against the persons responsible.

Be well. And all the best from all of us here at the firm.

posted by Mark Avera at 3/11/2006 10:37:00 PM | 0 comments

Tuesday, March 07, 2006

Why does my car insurance pay me when I am not at fault?

In auto accident cases, we are asked all the time by our clients why their insurance company should pay anything if the other party was at fault. Well, here is the 5 minute version......

PIP: Personal injury protection benefits are called no fault benefits. That means that it doesn't matter who is at fault in the accident, your own PIP pays 80% of your medical bills and 60% of your lost wages with a cap of $10,000. So even if you are fully at fault, some of your medical bills and wages will be paid. How did this come about? Well, you probably don't know it, but you gave up some rights for this "benefit".

Years ago, the insurance lobby persuaded the Florida Legislature to pass no fault. Sounds like a good idea. But what 99% of people don't know is that in exchange for that benefit, you gave up the right to claim any damages for pain and suffering, mental anguish, or the loss of ability to enjoy life unless you can prove that you have suffered significant scarring or a permanent injury within a reasonable degree of medical probability. So...unless the scarring is bad, or the injury is permanent, you can only recover your medical bills and out of pocket expenses.

Uninsured motorists: Sometimes the people that cause horrific crashes have no liability insurance. In fact, it isn't even required insurance in Florida. If that happens, you must look to your own insurance company to pay your damages. This is insurance you pay for, just like health insurance or life insurance. Your premium depends on how much you buy. Under Florida law, the insurance company must sell you an amount of uninsured motorists coverage equal to your liability limits. And, if you take certain steps, you can multiply that amount by the number of motor vehicles you own that are covered by that insurance.

What to remember? Always buy as much car insurance as your budget allows. And never, never, ever, ever sign anything that waives uninsured motorists coverage or "unstacks" your uninsured motorists coverage. Remember, any insurance agent who tries to persuade you to do this, is not looking out for you, he or she is looking out for the insurance company.

All the best and remember, please buckle up and drive safe.

Mark Avera
Avera & Avera, LLP

posted by Mark Avera at 3/07/2006 08:19:00 PM | 0 comments

Saturday, March 04, 2006

Our website contains information relating to a wide variety of cases. Click here http://www.avera.com to visit our website to peruse the information.

However, if you have a certain type of case that our website does not address, such as patent infringement, please feel free to give us a call anyway. Our lawyers have different skill sets and one of them may be uniquely trained to handle the type of matter you have. If not, we are more than happy to give you the names of lawyers in your geographical area and around the state that may be able to be of service to you.

Please remember, relationships and client service are of the utmost importance to us. We work and practice believing that there is no higher compliment in the professional field that to have one of our clients or friends recommend us to someone else.

posted by Mark Avera at 3/04/2006 05:05:00 PM | 0 comments

Audio Clip Re Avera & Avera Blog

posted by Mark Avera at 3/04/2006 04:58:00 PM | 0 comments

Friday, March 03, 2006

We've moved!

The Avera firm is happy to announce that we have moved to a new office with far more space and, most importantly, a lot of parking.

Several years ago, we recognized that our growth and client demands were quickly outgrowing our space in downtown gainesville at 305 SE 2nd Ave. We began a process of evaluating our needs, looking to the future, and combing the real estate market for commercial property that would fit exactly what we needed.

Back in the Fall of 2004, Mark Avera happened to drive by the old First City/FirstUnion/Wachovia bank building on SW 13th St adjacent to the Paramount Plaza hotel and Bivens Arm. A sign indicated it was for lease. The building had been unoccupied for at least a year, the vegetation was overgrown, and vandals were having their way with the building.

A series of negotiations with the owner ensued with the purchase of the building and the 4 acres it was situated on in January 2005. Architect John Knight of Atlanta began plans for what would be our new home. In April of 2005 demolition began and one month later, Perry Construction of Gainesville began the process of molding what was once a beautiful piece of commercial property back into something of which we, as a full service law firm, could be proud. It is now a reality.

We invite you to come see what we believe to be some of the premier office space in North Central Florida.

posted by Mark Avera at 3/03/2006 09:55:00 PM | 0 comments