Living in Florida, the land of hurricanes, uninsured drivers, unlicensed doctors and wildfires, it's likely that you've had to make a claim at some time to one of your many insurance carriers - auto, home, umbrella, health, disability, dental - and the list goes on.
Despite these cushions of insurance that surround us, I find that a great many of you are hesitant to make claims. I'll give you a perfect for instance. A client/friend of mine recently had her entire apartment wiped out by a flood occasioned by a broken water pipe (which carried sewage). Her clothes, shoes, purses and papers were ruined by the water. Most of her furniture was damaged. I told her that she needed to make her claim right away (against her renter's policy). In the end, she decided to just move and call it a day.
She explained that she didn't want to go through the hassle of negotiating with the insurance company because they never pay the value of what was lost and she didn't want to spend the money to have to sue the company.
I was dumbstruck. Seriously? Is this what we've come to? People spend a fortune on insurance and decide not to recover their contractual benefits for fear that they will have to hire and pay an attorney to recover for them?
Let me try to sort out both major points. First, I don't grant the premise that insurance companies don't pay what's fair. What you receive back is often a limitation of the policy or coverage you purchased. Like I said a few weeks back, when you see these policies- read them. They will tell you exactly what you are entitled to recover. Make sure that the policy you bought will properly compensate you for the risk you intend it to insure. Insurance companies actually DREAD screwing people over because their exposure on the back end is potentially huge (that's a story for a different day).
Second - and the reason for the title of this entry - YOU don't have to pay an attorney to recover against your insurer in those instances where you do hire one to recover from the insurance company. Florida has a statute that expressly states that, if you have to sue your insurer and you prevail, you get attorneys' fees back. That's right, the insurance company has to pay your fees!!!!
Please- before you start making these decisions- consult with someone who has knowledge of the insurance industry and the legal system before you decide to just walk away.
Have a great Turkey Day!!!
Wednesday, November 26, 2008
Tuesday, November 18, 2008
Long time - and sometimes too long
I have been gone two weeks. Sorry about that, but I was almost called to trial and had to scramble to get all of the out of town witnesses in line and the experts lined up to testify. It always takes longer than imagined and things go wrong that you never suspected could. That said, I am back.
So, let's talk about lapses in time. The law here in Florida (and everywhere else, as far as I can tell) requires you to timely bring your action or lose it forever. Different theories are subject to different time frames, but they are all pretty clearly spelled out in statutory law. They are called statutes of limitation and we touched on this subject once before - briefly.
What am I talking about? Well, if you slip and fall in the grocery store and want to sue Publix for negligence, you better do it within four years of your accident or you will be barred. If there is a breach of your contract, you have 4 or 5 years, depending on whether it's an oral or written agreement. If your doctor amputates the wrong foot, you have a very, very short window of time to bring suit.
Why does the law require this? Because we want things resolved while the greatest body of evidence is still around to be examined and used to support the claims and defenses. We don't want witnesses disappearing or document to go missing or have them destroyed as part of the ordinary document retention policies. It's designed to maximize the use of evidence.
So, what's so big about limitations periods that I needed to bring them up again? Well, there appear to be an ever increasing number of investors who want out of their real estate deals because the market has gone south. Whether they have a claim has a lot to do with when their deal closed, when the terms of that deal may have adversely changed and when the market went south. So, if you might be one of these people, you should check carefully to see when you first closed on your faltering investment.
So, let's talk about lapses in time. The law here in Florida (and everywhere else, as far as I can tell) requires you to timely bring your action or lose it forever. Different theories are subject to different time frames, but they are all pretty clearly spelled out in statutory law. They are called statutes of limitation and we touched on this subject once before - briefly.
What am I talking about? Well, if you slip and fall in the grocery store and want to sue Publix for negligence, you better do it within four years of your accident or you will be barred. If there is a breach of your contract, you have 4 or 5 years, depending on whether it's an oral or written agreement. If your doctor amputates the wrong foot, you have a very, very short window of time to bring suit.
Why does the law require this? Because we want things resolved while the greatest body of evidence is still around to be examined and used to support the claims and defenses. We don't want witnesses disappearing or document to go missing or have them destroyed as part of the ordinary document retention policies. It's designed to maximize the use of evidence.
So, what's so big about limitations periods that I needed to bring them up again? Well, there appear to be an ever increasing number of investors who want out of their real estate deals because the market has gone south. Whether they have a claim has a lot to do with when their deal closed, when the terms of that deal may have adversely changed and when the market went south. So, if you might be one of these people, you should check carefully to see when you first closed on your faltering investment.
Monday, November 3, 2008
Severability - legal surgery
Well, it's Monday again. I hope everyone enjoyed the weekend. As promised, it's back to business.
Today- severability. Let's suppose you have a contract. A real one, a nice one with page numbers and topic headings and actual terms and conditions. You know, a contract you paid your lawyer to draft up for you and the kind that you tell your friends has all sorts of "legal mumbo jumbo" in it. Well, today's topic is some of that legal mumbo jumbo.
If you have a contract like this somewhere in your possession, take a look at it. Somewhere above the signature line - but not too much above it, is likely a heading entitled "severability." Essentially, it provides that if there ends up being a problem with the contract or the law changes in some way that makes some part of the contract or the underlying deal illegal, the rest of the contract is still enforceable.
Does this sound hypertechnical? Well, it's intended to limit litigation. You see, in the common law, there is an old defense to contractual performance based upon illegality. It's sort of common sense, right? If the contract becomes illegal or the stuff sold under it is illegal, then the contract is not enforceable.
The idea with a severability clause is that it helps draw a line between the illegal and the legal. If, for instance, you have a contract to sell 100 widgets to someone who will pay for them in 6 installments at 18% interest and the law changes to reduce the maximum interest rate to 12%, you probably don't want your whole contract voided. With a severability clause, the contract will expressly provide for the illegal interest provision to be disregarded (or severed out) but it would leave the rest of the contract in place. Neat, huh?
So, sure things like severability clauses may be "mumbo jumbo" but it's handy mumbo jumbo.
Today- severability. Let's suppose you have a contract. A real one, a nice one with page numbers and topic headings and actual terms and conditions. You know, a contract you paid your lawyer to draft up for you and the kind that you tell your friends has all sorts of "legal mumbo jumbo" in it. Well, today's topic is some of that legal mumbo jumbo.
If you have a contract like this somewhere in your possession, take a look at it. Somewhere above the signature line - but not too much above it, is likely a heading entitled "severability." Essentially, it provides that if there ends up being a problem with the contract or the law changes in some way that makes some part of the contract or the underlying deal illegal, the rest of the contract is still enforceable.
Does this sound hypertechnical? Well, it's intended to limit litigation. You see, in the common law, there is an old defense to contractual performance based upon illegality. It's sort of common sense, right? If the contract becomes illegal or the stuff sold under it is illegal, then the contract is not enforceable.
The idea with a severability clause is that it helps draw a line between the illegal and the legal. If, for instance, you have a contract to sell 100 widgets to someone who will pay for them in 6 installments at 18% interest and the law changes to reduce the maximum interest rate to 12%, you probably don't want your whole contract voided. With a severability clause, the contract will expressly provide for the illegal interest provision to be disregarded (or severed out) but it would leave the rest of the contract in place. Neat, huh?
So, sure things like severability clauses may be "mumbo jumbo" but it's handy mumbo jumbo.
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