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.

Saturday, March 01, 2008

A Nightmare Without UM

In our February 23, 2007 article, we explained how UM (uninsured motorists) coverage works. We revist this issue to illustrate how important this coverage is based on a horrible experience an elderly couple recently experienced.

A new client called Avera & Smith early this year regarding a horrible auto crash in which she was involved. Let's call her Mrs. Jones.

Mrs. Jones is elderly. Both she and her husband are retired. They own two vehicles with one of the larger national auto insurers. The have bodily injury coverage on their vehicles in the amount of $100,000 per person and $300,000 per accident. That is the coverage that comes into play when one of the them causes a crash and a claim is brought against them.

Florida law requires that their insurance company sell them uninsured motorists coverage in an amount equal to their bodily injury limits. So, in the Jones' case, they would have $100,000 of uninsured motorists coverage times the number of cars they insure. So, because they have 2 cars, they would have $200,000 in uninsured motorists coverage.

Remember, uninsured motorists coverage comes into play when the person who injures you either doesn't have any bodily injury coverage or not enough.

Early in January, Mrs. Jones suffered very severe injuries when another driver drove through a stop sign at high speed. This driver only had $10,000 of bodily injury coverage. Her injuries required an extended hospital stay and weeks of recovery at home. Her medical bills continue to come accrue. Mrs. Jones and her husband hired A&S to assist her.

Unfortunately, our investigation disclosed that Mr. Jones had signed a form with his insurance company rejecting uninsured motorists coverage. So instead of having $210,000 in coverage available to her (the $10,000 in bodily injury coverage and $200,000 in UM coverage) Mrs. Jones only had $10,000. This was grossly insufficient to cover all the costs, expenses, and trauma of what she has gone through.

In discussing this with Mr. Jones, he really had no recollection of signing the form. He acknowledged that it was his signature. Like many people, he likely signed a bunch of forms and simply relied on his agent.

UM coverage is one of, if not the cheapest type of coverage you have on your policy. Over the years, we have recommended to friends and clients that if an agent recommends that you reject UM or select lower limits, you should find another agent.

Do yourself and your family a favor today. Check your policy. If it says you have rejected UM coverage, have "non-stacking" UM coverage, or have selected lower UM limits, call your agent and demand that they give you all of the UM that your policy permits. No other coverage will protect you when you are injured by a driver who doesn't have insurance or doesn't have enough.

If your agent tries to talk you out of it, find another agent. The premium difference is minimal and the coverage protects you and your family.

If you have questions about uninsured motorists coverage and how it protects you and your family, feel free to go to our website and submit a question.

posted by Mark Avera at 3/01/2008 08:23:00 AM | 0 comments

Thursday, February 07, 2008

Please consider helping yesterday's tornado victims

Yesterday, families across the south were devastated by a series of tornadoes that, at the time of this writing, were reported to have killed 54 people and left untold families homeless.

In times such as this, we cannot think of better charities to donate to than those who respond immediately to the needs of these familes. Organizations such as the American Red Cross respond to such disasters and try to help those who have lost everything. Whether it is $5 or $50, every little bit can help. Please go on-line to donate to the charity of your choice and support those organizations that support America's families. Yesterday it was someone else's family. Tomorrow it may be ours.

posted by Mark Avera at 2/07/2008 10:48:00 AM | 0 comments

Saturday, January 26, 2008

Adult liability for serving minors: What you must know!

Every year, the lawyers at Avera & Smith are called regarding accidents, injuries, or fights that stem from minors consuming alcohol. Often, that alcohol is consumed at the home of one of the minors with the knowledge and consent of his or her parents. Good idea to supervise the consumption of alcohol by kids? For a variety of reasons, probably not. But let's look at one reason and explain how you could be legally liable for a tragedy caused by a minor drinking alcohol at your home.

In 1988, the Florida Legislature created Section 856.015 of the Florida Statutes; commonly called the "House Party" statute. The statute sets forth, in part:

"No person having control of any residence shall allow an open house party to take place at said residence if any alcoholic beverage is possessed or consumed at said residence by any minor where the person knows that an alcoholic beverage or drug is in the possession of or being consumed by a minor at said residence and the person fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug."

This statute is a 2nd degree misdemeanor. A minor is defined in the statute as anyone not permitted to possess or consume alcohol. So, for the purposes of this statute, anyone under the age of 21 is a minor.

Just as importantly, this statute will create a civil cause of action in the event that damages are caused by violation of the statute. One of the easiest examples to foresee would be a minor served at an open house party in violation of the statute. The minor leaves the party, causes a crash, and injures or kills someone. In Florida, the person in control of the home where the party took place and who was in violation of this statute, would be legally responsible for the damages caused in the motor vehicle crash.

Having all of your child's friends over on prom night or any other night so they have someplace safe to have a good time is always a good idea. But serving alcohol can create a myriad of problems; not the least of which is criminal or civil liability when someone makes an error in judgment.

Be safe and Be well....

posted by Mark Avera at 1/26/2008 08:20:00 AM | 0 comments

Monday, June 18, 2007

Moving Your Family After Divorce

At Avera & Smith, we receive phone calls almost daily from persons who have divorced, are the primary residential parent of their child or children, and desire to move to another city for any variety of reasons. Randi Dincher, Esq, of Avera & Smtih took a few moments to write the following piece to answer some of these questions.

Relocation of Residential Parent

Primary residential parents are often surprised when they become aware that relocating from their residence may require court approval if the result of the relocation will have an adverse impact on the parenting schedule exercised by the non-residential parent. Specifically, Florida Statute 61.13001 prevents a residential parent from relocating from their residence more than 50 miles unless the parties enter into a written agreement in advance of the relocation, or the court approves the move. This only applies where the court has previously entered an order establishing custody of the minor child. Furthermore, the relocation statute does not apply for temporary leaves from the residence for things such as vacations and visiting relatives.

If the non-residential parent consents to the relocation, it must be done in writing. In order for the written consent to be valid, specific things must be addressed in the document such as a visitation schedule and transportation arrangements. The written agreement must be submitted to the court for approval.

Should the non-residential parent refuse to provide written consent to the relocation, notice must be filed with the court. The residential parent must serve the other party and give them 30 days to submit a written response to the court. Should an objection be filed, there will be a hearing for the court to consider whether or not the relocation is in the best interest of the minor child.

Unfortunately, for most folks who seek to relocate, time is of the essence. Often times the residential parent has an employment opportunity with a start date being in the near future. However, it could take at least 60 days, or more to get a hearing. It is important to have an attorney who will promptly address your needs and attempt to get the matter scheduled as soon as possible. We at Avera and Smith, LLP are familiar with the family courts and do our best to get the case scheduled as quickly as possible.

Should you be considering relocation it is suggested that you discuss your plans with the non-residential parent early in your process and retain an attorney to pursue the other party’s written consent before you take that new job offer.

Labels: Divorce

posted by Mark Avera at 6/18/2007 09:45:00 AM | 0 comments

Tuesday, March 06, 2007

Did you know...?

We often receive calls from people who are contemplating a divorce but are really unsure of what the financial obligations are and how they come into play.

Many of you are aware that Florida has child support guidelines to assist parents, attorneys, and the court system in determining the amount of child support owed by an obligating party. In our years of handling family law matters, we are reminded in most cases that guidelines are just that, guidelines. Given the same set of facts and two attorneys making calculations, often times the results can be very different. There are many reasons for this. The child support guidelines are calculated based upon net income, or a net income earning capacity. Generally, overtime is included in income. However, if the overtime is unusual, it should not be to be included in income. Income from second jobs may also be included. However, there are exceptions to this also.

Deductions from gross income to determine net income is also subjective. Net income is loosely defined as mandatory deductions from income (such as income taxes) and an accommodation for health insurance premiums actually paid by the parent.

Parties are required to complete financial affidavits so that child support can be calculated. Unfortunately, many times we see financial affidavits that are inaccurate or incomplete. We prefer to use actual financial records. The financial records speak for themselves and lend themselves to accurate financial affidavits.

While the child support guidelines is formula based, the resulting calculation is only as accurate as the information applied. We recommend you speak to an attorney who handles family law cases before a child support order is finalized by the court. Alternatively, please check our website at www.avera.com or call to schedule a conference with our family law attorney.

posted by Mark Avera at 3/06/2007 11:17:00 AM | 0 comments

Friday, February 23, 2007

Uninsured Motorist Coverage: What is it and do you need it?

For people who contact us regarding auto insurance issues, one of the least understood coverages is uninsured motorist coverage (UM). Why don't you pull out your auto policy and we'll go over this coverage so you understand exactly what kind of coverage you have and how much. Go to the declarations page that lists your car(s), your coverages (bodily injury, collision comprehensive, UM, etc) and let's figure it out together.

UM is the coverage on your policy that pays you and your loved ones when someone who doesn't have any bodily injury liability coverage, or doesn't have enough, crashes into you and injures you. And this happens frequently on our roads and highways. But how does it work? And when does it come into play? Let's use an example to illustrate how it works.

Let's say you own two cars and your auto insurance is with the Acme Insurance Co. While driving to work one morning, someone runs a red light and crashes into you. The crash results in you suffering a severely herniated disk in your neck requiring surgery. Unfortunately, the person that caused the crash carries only the minimum amount of insurance required by law; $10,000 in property damage and $10,000 in personal injury protection benefits (PIP).

That means their policy has $10,000 to fix your car, $10,000 in PIP benefits to pay for their medical bills and lost wages. There is nothing on their policy to pay you for your surgery or what you have to go through. So who do you look to for coverage of your damages? Hopefully the UM on your policy.

In this circumstance, Acme is going to pay you from your own policy, under UM coverage, because the person that caused the crash has no insurance to cover your persoanl injuries.

So how much will ACME pay? It depends on how much coverage you have. Let's illustrate some more in this example.

The two cars you have insured with Acme have bodily injury coverage in the amount of $50,000 per person and $100,000 per accident. By law, Acme must sell you an equal amount of UM coverage unless you sign a form with your agent rejecting UM, selecting lower UM limits, or electing non-stacking coverage. Never, ever sign these forms. If an agent encourages you to sign these forms, find another agent. He or she isn't looking out for the best interests of you and your family.

In our example, you have $50,000 per person and $100,000 of UM coverage. What's more, UM is unique in auto coverage because you get to "stack" your UM coverage by the number of cars on the policy. With two cars, you get $100,000 per person and $200,000 per accident of UM coverage. If you had three cars, $150,000 per person and $300,000 per accident of coverage. If you reject UM, or elect lower UM limits, or elect "non-stacked" UM coverage, your coverage amounts are lower. Again, never sign these forms; they only serve to reduce your coverage.

If your policy provides different amounts of coverage, say, $10,000/$20,000 or $100,000/$300,000, just substitute your coverage amounts for the $50,000/$100,000 we used in our example and mulitply it by the number of cars insured on the policy.

If on your declarations page, listing your coverages, you don't see UM coverage, or you see "rejected" or "non-stacked", call your agent and get that removed.

In our example above, our injured party has $100,000 in UM benefits available to him because he had $50,000 perperson of UM available to him times 2 cars for total UM benefits of $100,000.

What does the per person and per accident mean on the policy? In our example, our injured driver has $50,000 of UM times two cars available to him. But if mulitple people were riding with him, and they were all injured, there would be $100,000 per accident times two cars for a total of $200,000 of UM coverage available to everyone in the car. Simply put, per person is the amount of coverage for one person while per accident applies when they are mulitple people hurt.

What if your agent tells you that UM or stacking makes your coverage more expensive? Ask them to quote you premiums with UM and without. With stacking and without. The difference is premiums with UM is negligible compared to other coverages like collision or PIP.

Never let an agent tell you that you don't need UM because you have PIP on your policy. PIP only pays for medical bills and loist wages and those payments are capped at $10,000; an amount that is almost certainly used up if you spend a day or two in the hospital. On the other hand, UM pays for all of the damages you may be entitled to in an auto accident, including pain and suffering, up to your policy limits. PIP does not cover anything for pain and suffering. If an agent gives you this explanation, walk out the door and find an agent who is looking out for you and your family and not the company for which he or she is writing the policy.

Lastly, remember that without UM coverage, if you or a family member are injured by a driver who doesn't have bodily injury coverage (which is not required by law) or someone who doesn't have enough, you are out of luck in terms of getting your damages covered. You buy UM to protect yourself and your family from just this kind of occurrence. And never, ever reject UM, elect lower UM limits, or elect non-stacking coverage.

If you have a question on UM coverage on your policy, or some other insurance question, feel free to post a question at our website and we will be happy to answer it for you.

posted by Mark Avera at 2/23/2007 12:22:00 PM | 0 comments

Sunday, December 03, 2006

Trucking Safety...The fox guarding the henhouse

From the Florience, SC Times Daily

As Trucking Rules Are Eased, a Debate on Safety GrowsIn the last six years, the White House has embarked on a bold strategy of deregulation, provoking fierce debate about its benefits and risks.

WASHINGTON, Dec. 2 — As Dorris Edwards slowed for traffic near Kingdom City, Mo., on her way home from a Thanksgiving trip in 2004, an 18-wheeler slammed into her Jeep Cherokee. The truck crushed the sport-utility vehicle and shoved it down an embankment off Interstate 70. Ms. Edwards, 62, was killed. The truck driver accepted blame for the accident, and Ms. Edwards’s family filed a lawsuit against the driver and the trucking company.

In the course of pursuing its case, the family broached a larger issue: whether the Bush administration’s decision to reject tighter industry regulation and instead reduce what officials viewed as cumbersome rules permitted a poorly trained trucker to stay behind the wheel, alone, instead of resting after a long day of driving. After intense lobbying by the politically powerful trucking industry, regulators a year earlier had rejected proposals to tighten drivers’ hours and instead did the opposite, relaxing the rules on how long truckers could be on the road. That allowed the driver who hit Ms. Edwards to work in the cab nearly 12 hours, 8 of them driving nonstop, which he later acknowledged had tired him.

Government officials had also turned down repeated requests from insurers and safety groups for more rigorous training for new drivers. The driver in the fatal accident was a rookie on his first cross-country trip; his instructor, a 22-year-old with just a year of trucking experience, had been sleeping in a berth behind the cab much of the way. Federal officials, while declining to comment about the Edwards accident, have dismissed the assertion that deregulation has reduced safety and have maintained that in fact it has helped, though the Edwards family and many other victims of accidents have come to the opposite conclusion. In loosening the standards, the Federal Motor Carrier Safety Administration was fulfilling President Bush’s broader pledge to free industry of what it considered cumbersome rules.

In the last six years, the White House has embarked on the boldest strategy of deregulation in more than a generation. Largely unchecked by the Republican-led Congress, federal agencies, often led by former industry officials, have methodically reduced what they see as inefficient, outdated regulations and have delayed enforcement of others. The Bush administration says those efforts have produced huge savings for businesses and consumers. Those actions, though, have provoked fierce debate about their benefits and risks. The federal government’s oversight of the trucking industry is a case study of deregulation, as well as the difficulty of determining an exact calculus of its consequences.

Though Ms. Edwards’s family and the industry disagree on whether the motor carrier agency’s actions contributed to her death, her accident illuminates crucial issues in regulating America’s most treacherous industry, as measured by overall deaths and injuries from truck accidents. The loosened standards, supporters say, have made it faster and cheaper to move goods across the country. They also say the changes promote safety; without longer work hours, the industry would be forced to put more drivers with little experience behind the wheel. Regulators and industry officials point out that the death toll of truck-related accidents — about 5,000 annually — has not increased, while the fatality rate, the number of deaths per miles traveled, has continued a long decline. The number of annual injuries has also been dropping slowly, falling to 114,000 last year.

“This administration has done a good job, and the agency has done a good job, in advancing safety issues in a manner that takes into account all the important factors of our industry,” said the top lobbyist for the American Trucking Associations, Timothy P. Lynch. But advocates of tighter rules say the administration’s record of loosening standards endangers motorists. The fatality rate for truck-related accidents remains nearly double that involving only cars, safety and insurance groups say. They note that weakening the rules has reversed a course set by the Clinton administration and has resulted in the federal government repeatedly missing its own targets for reducing the death rate.

“It is a frustrating disappointment that has led to a tragic era,” said David F. Snyder, an assistant general counsel at the American Insurance Association who follows the trucking industry closely. “The losses continue to pile up at a high rate. There has been a huge missed opportunity.” An Industry’s Influence in decisions that had the support of the White House, the motor carrier agency has eased the rules on truckers’ work hours, rejected proposals for electronic monitoring to combat widespread cheating on drivers’ logs and resisted calls for more rigorous driver training.

While applauded by the industry, those decisions have been subject to withering criticism by federal appeals court panels in Washington who say they ignore government safety studies and put the industry’s economic interests ahead of public safety to advance its agenda, the Bush administration has installed industry officials in influential posts. Before Mr. Bush entered the White House, he selected Duane W. Acklie, a leading political fund-raiser and chairman of the American Trucking Associations, and Walter B. McCormick Jr., the group’s president, to serve on the Bush-Cheney transition team on transportation matters.

Mr. Bush then appointed Michael P. Jackson, a former top official at the trucking associations, as deputy secretary of the Department of Transportation. To lead the Federal Motor Carrier Safety Administration, the president picked Joseph M. Clapp, the former chairman of Roadway, a trucking company, and the leader of an industry foundation that sponsored research claiming fatigue was not a factor in truck accidents, a conclusion at odds with government and academic studies and David S. Addington, a former trucking industry official who led an earlier fight against tougher driving limits, became legal counsel and later chief of staff to Vice President Dick Cheney, an advocate of easing government regulations.

In addition to supplying prominent administration officials, the trucking industry has provided some of the Republican party’s most important fund-raisers. From 2000 to 2006, the industry directed more than $14 million in campaign contributions to Republicans. Its donations and lobbying fees — about $37 million from 2000 to 2005 — led to rules that have saved what industry officials estimate are billions of dollars in expenses linked to tougher regulations. But to the families of accident victims, the motor carrier agency has failed to fulfill a promise to significantly reduce fatalities, exacting a tragic personal price.

“They are not getting much done in Washington,” said Daphne Izer of Maine, who founded Parents Against Tired Truckers in 1994 after a Wal-Mart driver fell asleep at the wheel of his rig, killing her son and three other teenagers in the car with him. “As a result, more people will continue to die.”

Federal regulators disagree with that assessment of their performance. “We have made significant progress, yet much work remains to achieve our vision,” said David H. Hugel, the new deputy administrator of the Federal Motor Carrier Safety Administration. “Our challenges also are increasing because our nation maintains the most extensive and complex transportation system in the world, and that system and number of people who use it continues to grow.”

The federal government began overseeing the trucking industry in the 1930s, setting rates, limiting competition and regulating safety practices. From the start, companies won important concessions from Washington, including exemptions from minimum wage and other labor laws. The industry also resisted efforts to impose tougher safety standards, saying it could police itself.

In 1937, the first driving hour limits were set. Truckers were allowed drive up to 10 continuous hours but were required to rest for a minimum of 8 hours. The remaining six hours could be used for other work activities, like loading, or for breaks or meals. Truckers could drive up to 60 hours over 7 consecutive days, or 70 hours over 8 days. To enforce those rules, the government required drivers to keep logs. Repeated efforts over the years to tighten the rules were blocked, often as a result of vigorous industry lobbying.

Trucking companies have long argued that tougher standards are not necessary to promote safety, and that they would cause devastating economic pressures. Profit margins in the industry are thin, particularly after economic deregulation in 1980 prompted competition. Long hours and low pay for drivers have led to high turnover, and carriers struggle to find replacements. Those conditions, safety experts say, have contributed to widespread safety problems.

The practice of falsifying driver hours is an open secret in the industry; truckers routinely refer to their logs as “comic books.” Fines are small. The federal motor carrier agency does not have the staff to monitor closely 700,000 businesses and almost eight million trucks.

Timothy L. Unrine, a 41-year-old driver from Virginia, said in a recent interview that he was taught to conceal excessive driving hours during training last January by his former employer, Boyd Brothers Transportation of Birmingham, Ala. Mr. Unrine said his orientation instructor told his class that government inspectors were allowed to examine a monthly logbook if it was bound. But if the staples were removed, the log was considered “loose leaf” and inspectors could require an examination of only those pages from the most recent seven days, Mr. Unrine said the drivers were told.

Company officials advised drivers to use fuel credit cards that recorded only the date, not the time, of the fuel stop, he said. Mr. Unrine added that the company pushed him to work longer hours than permitted, and that his logbooks were “adjusted” many times to make it appear he was within the limits. Several times, when he told a dispatcher he was too tired to make another trip, he said, he was ordered to do so after just a few hours’ sleep. “I never felt safe driving under these conditions,” said Mr. Unrine, who left Boyd last June because of a legal dispute over medical bills from a fall. “I talked to many drivers on the fuel islands, truck stops and rest areas. Logbooks are so fake; it scares me that there aren’t more accidents on the road.”

Richard Bailey, the chief operating officer at Boyd Brothers, and Wayne Fiquett, the company’s vice president for safety, disputed Mr. Unrine’s claims. They said that drivers might have been instructed to keep only seven days of log entries, but denied that they were encouraged to violate the rules. “Nobody here will tell someone to do something unsafe,” Mr. Fiquett said. “If a driver is tired or over his hours, the system will not allow that driver to continue driving.”

In 1995, Congress directed regulators to study truck driver fatigue and its safety consequences and to consider new rules. But the agency then charged with truck safety, the Federal Highway Administration, never did so. Two years later, the Clinton administration vowed to cut the annual death toll of truck-related accidents in half within a decade. In 1999, Congress created the Federal Motor Carrier Safety Administration in response to what lawmakers considered ineffectual regulation and high casualties. A year later, the agency proposed tighter service hour rules. They would allow long-haul drivers to work a maximum of 12 hours a day, and require them to take 10-hour breaks between shifts. They also required installation of electronic devices to replace driver logs.

Advocates of tighter standards said the rules did not go far enough, while the industry said cutting driver hours could raise costs by $19 billion over a decade, five times more than government estimates. Action stalled when trucking lobbyists inserted language into a spending bill that forced the motor carrier agency to delay action until after the presidential election that November.

Rewriting the Rules, industry leaders overwhelmingly supported the candidacy of George W. Bush, confident that his administration would be friendlier than one led by his opponent, Al Gore. On the campaign trail, Mr. Bush accused his Democratic rival of wanting to expand government, while Mr. Bush repeatedly expressed his desire to reduce federal regulations.
During the 2000 election cycle, trucking executives and political action committees gave more than $4.3 million in donations to the Republicans and less than $1 million to Democrats, according to the Center for Responsive Politics, a nonpartisan research organization.

In the months before and after the election, a leading industry figure in the campaign against tighter driving rules was Mr. Acklie, who became chairman of the American Trucking Associations in the fall of 2000. A longtime Bush family friend and Republican fund-raiser, he led one of nation’s largest trucking companies, Crete Carrier, based in Nebraska. Mr. Acklie, who stepped down from the post about a year after his appointment, did not return telephone calls seeking comment.

Another important advocate was Mr. Addington, then general counsel to the Trucking Associations. In August 2000, when two top transportation officials complained in a press release about the industry’s “raw use of political power,” he demanded that they be investigated for possibly violating a federal law that prohibits officials from lobbying and issuing propaganda.

In January 2001, he joined Mr. Cheney’s office, where he is now chief of staff. Lea Anne McBride, the vice president’s spokeswoman, said Mr. Addington had not been involved in issues related to his trucking activities. Other industry officials also joined the administration. Mr. Jackson, a former colleague of Mr. Acklie and Mr. Addington at the trucking group, became the No. 2 official at the Transportation Department, which oversees the industry. Mr. Clapp, the former head of Roadway trucking, took over the motor carrier agency and soon became involved in rewriting the rules.

The insurance industry and safety groups provided studies showing a high percentage of accidents were caused by tired truck drivers. But after the Trucking Associations produced a study concluding that only 2 percent of accidents were caused by fatigued truckers, while more than 80 percent were caused by passenger cars, the agency decided to loosen the hourly restrictions.

In April 2003, the agency issued rules that increased the maximum driving hours to 77 from 60 over 7 consecutive days and to 88 hours from 70 over 8 consecutive days. It capped daily work hours at 14, which included driving as well as waiting for loading and unloading. The agency also decided not to require truck companies to install electronic monitoring devices.

The agency said the new rules would modestly decrease the number of fatalities by increasing the required time off for drivers, to 10 hours from 8. A year later, the agency set training standards for new drivers: 10 hours of training, none of it on the road.

Congress has provided little scrutiny of the trucking standards. “There has not been the kind of in-depth examination of these issues that should have occurred,” said Representative James L. Oberstar of Minnesota, the ranking Democrat on the House Committee on Transportation and Infrastructure. Mr. Oberstar and others blamed the failure on the political muscle of the industry.

From 2000 to 2004, the American Trucking Associations donated $2 million to lawmakers, mostly to Republicans who served on committees with jurisdiction over trucking issues. The courts have played a more significant role. In July 2004, a three-judge panel from the federal appeals court in Washington issued a harsh opinion in a lawsuit brought by several safety organizations over the trucking work rules.

Judge David B. Sentelle, a conservative Republican appointed by President Ronald Reagan, wrote the opinion, faulting the Federal Motor Carrier Safety Administration for “ignoring its own evidence that fatigue causes many truck accidents.” The opinion continued, “The agency admits that studies show that crash risk increases, in the agency’s words, ‘geometrically’ after the eighth hour on duty.”

The judges said they could not understand why the agency had not estimated the benefits of electronic monitoring, saying the agency’s “passive regulatory approach” probably did not comply with the law. The panel struck down the hour and service rules. But a year later, in August 2005, the agency issued virtually identical rules, which the safety groups and the Teamsters union are again challenging in court.

Oral arguments are set for Monday before another three-judge federal appeals panel here. The agency had a similar legal setback on driver training. A three-member appeals court panel called the regulation “baffling” and criticized the agency for ignoring its own studies on the need for more comprehensive training. The agency has not responded to the court’s decision by issuing any new rules. Meanwhile, the agency has failed, by growing margins, to meet its annual targets for lowering the death rate for truck-related accidents.

Mr. Hugel, the agency’s deputy administrator, blames increasing traffic for the agency’s inability to meet its goals. “More trucks, combined with even more passenger vehicles,” he said, “leads to more roadway congestion, increased risk and a larger number of fatalities.”

In a budget submission to Congress last February, though, the Transportation Department noted its repeated failure to cut the death rate and conceded that the agency “has difficulty demonstrating how its regulatory activities contribute to reaching its safety goal.”Safety experts, for their part, say the numbers reflect the agency’s failings.“The fatalities speak to the agency’s lackluster performance,” said Jacqueline S. Gillan, vice president of Advocates for Highway and Auto Safety, an alliance of consumer, health and insurance organizations. “These truck crashes happen one at a time in communities across the country and get little attention,” Ms. Gillan said. “Can you imagine what the outcry would be at the F.A.A. if we had 25 major airplane crashes a year, which is the equivalent of what is happening with trucks?”

After Ms. Edwards’s death, her only son, Steve, a professional musician in Chicago, sued the trucking company, Werner Enterprises of Omaha, and the driver involved in the accident, John L. McNeal, 36. Mr. McNeal was dismissed shortly after the accident. Mr. McNeal said in a sworn deposition that he had been tired from driving all day from Tennessee without a break. He had been in the cab for about 12 hours, including about 8 hours at the wheel. Because he had been driving trucks professionally for only a month, he was assigned a trainer, who had slept much of the trip.

After Mr. McNeal acknowledged he was at fault, Werner Enterprises settled the lawsuit for $2.4 million. Werner’s general counsel, Richard S. Reiser, said that the company had a strong safety record and that its training program far exceeded the federal requirements. Mr. Reiser said that Mr. McNeal was in compliance with both the old and new work hour rules but acknowledged he was unfamiliar with the proposals by safety groups that would have prevented the driver from working as long as he did that day. He also said that any driver who was tired should stop, regardless of how long he had been on the road.

“The driver should be the one who says, ‘If I’m tired, I should pull over,’ ” Mr. Reiser said. Mr. Edwards, though, thinks responsibility for safety goes beyond individual drivers, and links his mother’s death to the Bush administration’s decisions against imposing tighter driving limits. “These drivers are working hard every day on the road to make a living,” he said.

“They are overtired and underpaid.” Mr. Edwards said his mother, who had worked at a Procter & Gamble Company factory before her weakened knees forced her to retire, had been looking forward to traveling, gardening and playing with her grandchildren. “If there is any silver lining, it is that he hit her so hard she never saw it coming,” Mr. Edwards said of the accident. “She probably was happy that she was going to be home soon.”

posted by Mark Avera at 12/03/2006 07:42:00 AM | 0 comments

Sunday, October 22, 2006

Florida Supreme Court speaks on Prompt Pay....

Many of you will remember our comment in late September that dealt with the time periods in which health insurers had to pay medical bills incurred by you or your family.

In the past, health insurance entities took the position that these statutes, requiring payment within a certain time period, did not create a cause of action. In other words, even though the statutes set forth the time periods in which the company was supposed to pay, nowhere in the statute did it say that if the health insurer failed to comply with the statute, that a lawsuit could be filed by the patient or her health care provider.

This past Thursday, the Florida Supreme Court laid that question to rest. In Foundation Health v. Westside EKG, the Supreme Court ruled that a medical service provider (your doctor, the hospital, etc) could file a lawsuit against the HMO for its violation of its contract with you and violation of the prompt pay statutes. Remember, the prompt pay statutes set forth the time period in which a health insurance entity have to pay your medical bills, deny them, or investigate them. Check our blog on 9/26 for the specifics of the statute.

Foundation Health dealt with the HMO scenario. In my opinion, this opinion tells all lawyers in the health care field of what the Supreme Court would say with respect to prompt pay statutes that apply to health insurers that are not HMO's.

This opinion is good news for patients, and good news for the medical providers that care for them. At the same time, there is in place a process for a health insurer to investigate claims.

If you or your physician have a hard time getting the bills paid by your health insurer, keep in mind the prompt pay statutes.

posted by Mark Avera at 10/22/2006 08:58:00 AM | 0 comments

Tuesday, September 26, 2006

Did You Know.....? Health Insurance and Paying Claims

Ever wonder when your health insurance company was going to pay for the bills you incurred for medical care or treatment?

Here at Avera & Avera, we frequently assist people with health insurance bills that the insurer is either denying payment on or is not paying timely; much to the concern of the patient and their health care provider.

Florida Statutes do provide time limitations within which a health insurance company must pay claims or notify you of their intent to contest or investigate the claims. Here are excerpts from Florida Statute 627.613 which is entitled "Time for Payment of Claims".....

(2) Health insurers shall reimburse all claims or any portion of any claim from an insured or an insured's assignees, for payment under a health insurance policy, within 45 days after receipt of the claim by the health insurer. If a claim or a portion of a claim is contested by the health insurer, the insured or the insured's assignees shall be notified, in writing, that the claim is contested or denied, within 45 days after receipt of the claim by the health insurer. The notice that a claim is contested shall identify the contested portion of the claim and the reasons for contesting the claim.

(3) A health insurer, upon receipt of the additional information requested from the insured or the insured's assignees shall pay or deny the contested claim or portion of the contested claim, within 60 days.

(4) An insurer shall pay or deny any claim no later than 120 days after receiving the claim.

(5) Payment shall be treated as being made on the date a draft or other valid instrument which is equivalent to payment was placed in the United States mail in a properly addressed, postpaid envelope or, if not so posted, on the date of delivery.

(6) All overdue payments shall bear simple interest at the rate of 10 percent per year.

(7) Upon written notification by an insured, an insurer shall investigate any claim of improper billing by a physician, hospital, or other health care provider. The insurer shall determine if the insured was properly billed for only those procedures and services that the insured actually received. If the insurer determines that the insured has been improperly billed, the insurer shall notify the insured and the provider of its findings and shall reduce the amount of payment to the provider by the amount determined to be improperly billed. If a reduction is made due to such notification by the insured, the insurer shall pay to the insured 20 percent of the amount of the reduction up to $500.

posted by Mark Avera at 9/26/2006 05:03:00 PM | 0 comments

Rod Smith Rejoins Avera & Avera, LLP

Avera & Avera, LLP is pleased to announce that state senator Rod Smith has rejoined the firm after his 18 month campaign to become Florida's next governor. Although Rod's campaign ended in the democratic primary, he was successful in coming from a virtual unknown in Florida with a 4% name recognition to coming within a hair of winning the democratic primary.

Senator Smith will now focus on his law practice as his service in the Florida Senate ends in the fall of 2006. His practice will concentrate in the areas of commercial litigation, employment law, complex tort litigation, and white collar criminal matters.

posted by Mark Avera at 9/26/2006 04:35:00 PM | 0 comments

Saturday, August 19, 2006

Family Law attorney Randi Dincher joins Avera & Avera

Dear Friends:

We are pleased to announce that family law attorney Randi Dincher joined Avera & Avera this past August 7th and will handle all of the firm's family law related matters.

Randi is a member of the Florida and Pennsylvania Bar and comes with a strong reputation for thorough and zealous advocacy for clients in divorce and family law matters.

Randi obtained her Juris Doctor Degree in law from Temple University in 1992. She has a Bachelors Degree from Penn State University, accomplished in 1982. In addition, Randi has a Master’s in Business Administration Degree from Western New England College, located in Massachusetts.

In addition to her professional responsibilities, Randi was an active volunteer in the community where she lived previously and will continue to do so here in Gainesville.

Randi is excited to be a part of the Gainesville and North Florida community and to serve the legal needs of its citizens in family law matters with the resources and backing of the Avera & Avera firm.

posted by Mark Avera at 8/19/2006 10:14:00 AM | 0 comments

Saturday, August 12, 2006

Rod Smith endorsed by ST PETE TIMES

Today, the St. Pete Times, the largest newspaper in Florida, endorsed Senator Rod Smith for Governor in the democratic primary. This is exciting news for all of us in North Florida who have been working so hard on the campaign. This is particularly true because the Times is in the backyard of Tampa Congressman Jim Davis, Senator Smith's opponent. You can read the endorsement at the link below and, please, get out and vote.

http://sptimes.com/2006/08/12/Opinion/Smith_for_the_Democra.shtml

posted by Mark Avera at 8/12/2006 09:20:00 PM | 0 comments

Tuesday, August 08, 2006

Rod Smith for Governor fundraiser Tuesday 8/15

Please join us at our new offices at 2814 SW 13th St. in Gainesville. Avera & Avera is hosting an event for Rod Smith in his campaign for Governor on Tuesday, August 15th from 5pm to 630pm. Please join us and bring your friends!! Click on this web link for all the details.

http://tools.rodsmith2006.com/page/event/detail/specialevents/jt9

We will see you there!!

Mark AveraAvera & Avera, LLP

posted by Mark Avera at 8/08/2006 06:32:00 AM | 0 comments

Thursday, May 11, 2006

Excellent Op-Ed piece

What follows is an excellent op-ed piece written by a friend in Tampa after former U.S. Secretary of State James Baker appeared on Larry King Live on CNN recently...


OP-ED:

Larry King is nothing if not cordial to his guests. Last night his guests were two very sympathetic figures – a grandfather and his daughter, discussing the drowning death of a seven year old girl. The grandfather explained that their family tragedy could have been prevented by the installation of a drain guard.

The grandfather is the former Secretary of State, James A. Baker, III. His granddaughter’s death has him lobbying for legislation promoting pool safety. In June 2002, Graham Baker was entrapped by a pool drain and drowned. The description of the event is horrifying. As Secretary Baker put it, “Our little Graham was entrapped in a pool. The suction from the drain held her to the bottom of the pool and drowned her.”

Baker went on to describe how easy and how inexpensive it is to prevent drain entrapment. “A drain cover that would prevent entrapment I think costs something in the neighborhood of $60.” Baker also noted “And, of course, you can't put a dollar value on the life of even one child.”

Midway through the interview, Nancy Baker disclosed that her daughter’s death had led to litigation.

Nothing changes one’s perspective like walking in another man’s shoes. As Atticus Finch explains in To Kill a Mockingbird, “You never really understand a person until you consider things from his point of view...until you climb into his skin and walk around in it.”

John Edwards learned that lesson a long time ago. The former North Carolina Senator represented families of victims – like Baker’s granddaughter – who had been irreparably harmed by the carelessness of others. His clients included the Lakey family. Five year old Valerie Lakey was entrapped in a pool drain in 1993, nine years before Baker’s granddaughter died. Valerie had her intestines ripped away from her body, but did not die. Edwards learned that at least twelve other children had suffered similar injuries, all from being sucked into or entrapped by pool drains.

In the nine years between Lakey’s tragic accident and the drowning of Graham Baker, Republicans of all shapes and sizes ran around the country enacting so-called “tort reform.” Virtually every reform makes it harder for people like Graham Baker’s family to get justice for the preventable deaths of their children. And make no mistake, by limiting the amount of damages recoverable in personal injury lawsuits, Republicans are passing laws that will lead to more dead and injured children —all to garner the political and financial support of business interests.

Business interests and their Republican mouthpieces argue that business can be trusted to protect the public, and that the tort system really only benefits lawyers. Unfortunately, the swimming pool lobby hasn’t gotten around to eradicating the preventable risk of being sucked into a pool drain in the thirty years it has been aware of the problem. Secretary Baker – a lawyer himself – told Larry King he was unaware of the risk.

Republican strategists think of civil justice reform as a juicy political issue. The media see the battle in terms of the lawyers versus business. But the 61st Secretary of State, James A. Baker III has spent some time in the skin of a victim as the result of losing his granddaughter. Deep down, he knows that, in the words of John Edwards, "The responsibility we have toward our children...is a most awesome responsibility." We should make it easier to sue companies that harm children, not harder. The law should impose punitive damages –without limit – on companies that are reckless with child safety. And voters should give the bum’s rush to demagogues who malign people who file legitimate lawsuits while taking money from people with the blood of children on their hands.

We should all try to climb around in the other person’s skin every once in a while.

posted by Mark Avera at 5/11/2006 06:06:00 AM | 0 comments

Tuesday, April 18, 2006

Avera & Avera Welcomes New Firm Administrator

Avera & Avera is pleased to announce the hiring of Firm Administrator Richard Turnbow. Mr. Turnbow joins Avera & Avera from a prominent Montgomery, AL firm. Richard is a certified public accountant by trade and has almost 30 years of experience administrating law firms both large and small. He is a member of the Association of Legal Adminstrators and is a freqeunt speaker at seminars across the country on issues regarding law firm administration. As an integral member of the Avera & Avera team, Richard will work to make the firm more efficient in providing legal services to the clientele of Avera & Avera. If you wish to contact Richard, his email address is rturnbow@avera.com.

posted by Mark Avera at 4/18/2006 06:51:00 AM | 0 comments

Florida Republican Leadership Tries to Eliminate Accountability for Doctors and Hospitals Who Injure and Kill Patients

Florida statutes currently place strict and clear guidelines regarding the necessary qualifications a medical expert must have to testify in a medical malpractice case. But to understand how the system works in the real world, one must understand the culture. Only then can you fully appreciate what the Florida House of Representatives is pushing in House Bill 1561.

In Florida, before a patient may file a lawsuit in court against a medical provider, a medical expert, in the same or similar specialty as the offending medical provider, must provide an affidavit that there was a breach of the standard of care and that the breach resulted in damages to the patient. The medical provider, and its insurer if it has one, then has 90 days to investigate the claim. 99.9% of the time, these notice with affidavits submitted by the patient, results in a denial of the claim.

Many times, patients who come to our firm to evaluate a potential medical malpractice case, will tell us that their subsequent treating physician was shocked by what happened to them and recommended that they contact an attorney who specializes in malpractice litigation to evaluate their claim. Often, the physician will make a statement to the patient making it clear that he or she believes that the previous medical provider committed malpractice.

But the reality is that these doctors who try to fix the malpractice but the patient’s medical provider will not agree to testify under oath that the medical provider committed malpractice. Physicians within the state refer cases to one another, they see each other in the hospital or other professional settings, they go to conferences with each other and, perhaps worse, they get labeled by other physicians as a “plaintiff’s expert” who will testify against medical providers. One can only imagine how that would affect the medical practice of a physician who would agree to testify on behalf of a patient. Some call this the “Code of Silence” within the profession.

So the reality is that a vast majority of the time, patients and the attorneys who represent them must go outside of the State of Florida to find medical experts who will agree to review a case if, if there is merit, testify on behalf of the patient.

So what is it that the Florida House of Representatives is trying to accomplish that would place this system in peril?

House Bill 1561 (HB1561) would require every physician who practices outside of Florida to be licensed. It doesn’t sound like a particularly bad idea until you are aware that the bill would permit the Board to discipline physicians for misleading, fraudulent or deceptive testimony. Now the rub. There are no opinions by a medical board, anywhere, where a medical expert testifying on behalf of a medical provider (doctor, hospital, nurse, etc) has been disciplined for providing deceptive testimony. There are opinions from medical boards sanctioning or disciplining medical experts who testify on behalf of a patient. Do you think that there are no defense experts who provide deceptive testimony?

The fact of the manner is that disciplining boards, made up of physicians, will never sanction one of the own who comes to the aid of one of their colleagues and provides false, deceptive or misleading testimony. They will do so for one who has the gall to testify on behalf of a patient.

I have taken depositions in malpractice cases of the most egregious nature and have witnessed defense experts say the most outrageous things to justify their position that the offending physician did nothing wrong.

All of this is aimed to the simple premise of trying to prevent people from filing malpractice lawsuits. Since the legislature capped the damages you can collect against a doctor or hospital for injuring or killing you or a loved one, our firm has further refined the types of malpractice cases we will accept. By imposing more draconian measures, the Republican leadership of the Florida Legislature are trying their level best to give the worst doctors and medical providers exacty what they want; protection from being accountable for the horrible injuries and deaths that they cause to the patients.

Make your voice head if you live in Florida. If you want to make sure that you have access to the court house if a negligent medical provider injures you or a family member, call your house representative and your Senator and urge them to vote against HB1561 and its companion bills.

For a complete version of HB1561, copy the link below and paste it into your web browser.

http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_h1561__.doc&DocumentType=Bill&BillNumber=1561&Session=2006

posted by Mark Avera at 4/18/2006 05:36:00 AM | 0 comments

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