Under Florida's
statute of limitations for personal injury cases,
you have four years from the date of the accident to file a lawsuit
in Florida's civil courts (this law can be found in
Florida Statutes Annotated section 95.11)
We do not charge an up
front fee for our services. We offer a FREE Consultation
to determine if we will agree to accept your case prior to entering
into a contingent fee agreement. Such an arrangement is called
a contingent fee. Under the lawyer's ethics rules, the lawyer
and client must enter into a written fee agreement at
the outset of the representation, stating what portion of the
recovery the lawyer will receive. The fee is generally fixed at a
percentage of the recovery.
In a contingency fee
contract, you and your lawyer agree that the lawyer will not get
paid any fees unless you win your case. However, you may be charged
for costs such as court filing fees or expenses paid to witnesses.
If you win, these expenses may be deducted from your share of the
recovery.
The following limitations are contained in the Rules
of Professional Conduct and only apply in cases involving personal
injury or property damage that occurred as a result of negligent
conduct such as auto accident or products liability cases. If you
and your attorney settle your case before the filing of an answer or
demand for appointment of arbitrators or, if no answer is filed or
no demand for appointment of arbitrators is made, the expiration of
the time period provided for such action, the fee is 33 1/3 percent
of any recovery up to $1 million. · If the case is concluded at any
point after the filing of an answer or demand for appointment of
arbitrators or, if no answer is filed or no demand for appointment
of arbitrators is made, the expiration of the time period provided
for such action, through the entry of judgment, the maximum fee is
40 percent of any recovery up to $1 million. · In addition to the
above fee, if you and your attorney settle your case for an amount
between $1 million and $2 million, or if you win at trial and your
recovery is between $1 and $2 million, the fee is 30 percent of the
recovery between $1 million and $2 million. · In addition to the
above fees, if you and your attorney settle your case for an amount
above $2 million, or if you win at trial and your recovery is above
$2 million, the fee is 20 percent of the recovery above $2 million.
· At times, the person you are suing may admit that they are liable
but may disagree with you on the amount of damages that they owe
you. If all of the defendants admit liability when they file their
answers and only want a trial on the question of damages, the fee is
33 1/3 percent of any recovery up to $1 million, 20 percent of any
recovery between $1 and $2 million, and 15 percent of any recovery
in excess of $2 million. · If after the trial or settlement your
case is appealed or your attorney has to seek post-judgment relief
or file an action to help you collect your judgment, an additional 5
percent of the recovery may be added to the fee.
Before meeting with your lawyer:
· Gather all information together in a logical order;
· Be sure you have current correct telephone numbers and addresses
of interested parties and witnesses, if applicable;
· Prepare a written statement of your case and what you want done;
· Make photocopies of everything and offer originals or photocopies
to your lawyer. Let your lawyer decide if originals or the copies
are needed.
During your initial consultation:
· Present an overall view of your case.
· Share all relevant information, let your lawyer decide what is not
in your favor. It is much better for your lawyer to know, rather
than be surprised later.
PIP insurance: Personal injury protection insurance covers
you regardless of whether you cause an accident (are "at-fault") −
up to $10,000 minus your deductible amount. PIP is designed to
reduce the necessity of suing for reimbursement of medical and
related bills from auto accidents. PIP pays up to: • 80 percent of
reasonable medical expenses related to the accident. • 60 percent of
lost wages as a result of the accident. • $5,000 for death benefits.
For accidents that happen in Florida, PIP covers you, relatives who
live in your home, certain passengers who do not own a vehicle, and
others who drive your car with your permission. Pedestrians and
bicyclists are also covered if they are Florida residents. PIP
coverage also provides coverage for acts of violence against the
policyholder while driving, including injuries sustained as a result
of road rage or a carjacking. For accidents that happen outside
Florida but inside the U.S. or Canada, PIP covers you and relatives
who live in your home. In this case, you must be driving your own
vehicle. People other than you or your relatives are not covered.
Uninsured/Underinsured insurance: It is vitally important
to know that you are entitled to insurance to pay for your personal
injury in cases where the party at fault does not have liability
insurance. The cost for this coverage is very little as compared to
the benefits to which you are entitled. We recommend to all our
clients to obtain Uninsured/Underinsured coverage whenever they
purchase an auto insurance policy. Uninsured motorist (UM) insurance
pays if you, your passengers or family members are hit by someone
who is "at fault" and does not have insurance, or has insufficient
liability insurance to cover the total damages sustained by you.
This applies whether you are riding in your car, riding in someone
else's car or are struck by a car as a pedestrian. UM insurance also
applies in a hit-and-run situation, or in a “phantom” vehicle
accident. UM insurance pays for medical expenses, lost wages (beyond
your PIP coverage), bodily injury, sickness, disease or death
resulting from a motor vehicle accident that you and your passengers
suffer.
Bodily injury liability insurance: Bodily injury liability
coverage (BIL) is generally not required in Florida. However, if you
have been convicted of a DUI, BIL is required for a period of three
years after your license has been reinstated. If you were convicted
on or before Oct. 1, 2007, you must get a minimum of $10,000 worth
of coverage per person and $20,000 worth of coverage per incident.
If you were convicted after Oct. 1, 2007, you must have $100,000
worth of coverage per person and $300,000 worth of coverage per
accident. You also must have a minimum of $50,000 in property damage
coverage. BIL pays for serious and permanent injury or death to
others when your car is involved in an accident and the driver of
your car is found to be at fault to some extent. This policy pays
for injuries caused by you and relatives who live with you, even if
they are driving someone else’s car. It also covers people who drive
your car with your permission. BIL coverage applies only after PIP
benefits are exhausted. With this type of policy, the insurance
company also will pay for your legal defense if you are sued.
Other types of insurance: Although it is not required by
law, many drivers buy other types of insurance coverage in addition
to the mandatory PIP and property damage liability insurance. Common
optional coverage purchased includes: collision, comprehensive,
medical payment, towing, rental reimbursement, and accidental death
and dismemberment. Collision insurance pays for repairs to your car
if it collides with another vehicle, crashes into an object or turns
over. It pays regardless of who causes the accident. Collision
insurance does not cover injuries to people or damage to the
property of others. Comprehensive insurance pays for losses from
incidents other than a collision. Examples would be fire, theft,
windstorm, vandalism, flood or hitting an animal. Damage caused by
falling objects is also covered under this policy. If you have
comprehensive coverage, windshield replacement is the only claim for
which you are not charged a deductible. Florida law requires this
waiver to encourage drivers to immediately replace damaged
windshields. You may be required to purchase comprehensive and
collision insurance if your car is financed. However, it is illegal
for the lending institution to require you to purchase insurance
from a particular company or agent. . Medical payments insurance
differs from bodily injury liability coverage in that it covers the
medical expenses of you, members of your family and your passengers
regardless of who is "at fault." Medical payment insurance covers
medical expenses, beyond those covered by PIP, that result from
accidental injury. Medical payment insurance applies whether the
injury occurs in your car or someone else's car, or on the street as
a pedestrian. Note that health insurance also covers medical
expenses from auto accidents beyond those covered by PIP. Rental
reimbursement coverage will permit you to be reimbursed for car
rental if an accident leaves your car unable to be driven. If the
other driver was "at fault," that driver's liability insurance
coverage may reimburse you for renting a vehicle similar to your
own. Accidental death and dismemberment insurance provides coverage,
up to the limits of the policy, for accidental death or
dismemberment in an auto accident, regardless of who is "at fault."
It covers you and relatives who live in your home. Rental car
companies often sell collision damage coverage that, although
similar to insurance, is not insurance and does not fall under the
regulatory authority of the Department of Financial Services. If you
have collision coverage or property damage liability, you may be
covered for damage to rental cars driven by you, depending on the
terms and conditions of your policy. You also may be automatically
covered by your credit card company if you used the card to rent the
vehicle. Check your policy before you rent a car, and call your
agent or credit card company if you have any doubts.
Chapter 681, Florida Statutes, provides remedies for consumers
who purchase or lease new or demonstrator motor vehicles with
“nonconformities” that have not been corrected by the manufacturer,
or its authorized service agent (typically a dealership), “within a
reasonable number of repair attempts.” A “nonconformity” under the
Lemon Law is defined as a defect or condition that substantially
impairs the use, value or safety of the vehicle, and can include
problems such as faulty paint, leaks and electrical or mechanical
problems.
In order to qualify under the Lemon Law, the vehicle in question
must have been sold (or leased) in Florida. The purchase must not
have been for resale purposes and must fall into one of the
following categories: (1) the vehicle is used for personal, family
or household purposes; (2) the vehicle was acquired from the first
owner for the same purposes during the first owner’s first 24 months
of ownership; or (3) the owner or lessee is a person who is entitled
to enforce the warranty.
Two presumptions
The statute creates two presumptions for when a vehicle has not
been repaired “within a reasonable number of attempts.” Under the
first presumption, if a consumer has taken the vehicle to an
authorized service agent for repair of the same nonconformity on at
least three occasions, and the nonconformity has not been repaired,
then the vehicle owner or lessee must notify the manufacturer of the
nonconformity in writing, by registered or express mail, in order to
give the manufacturer a final opportunity to repair the defect. The
manufacturer has 10 days from receipt of the notification to direct
the vehicle owner or lessee to a reasonably accessible repair
facility. After the vehicle is delivered to the repair facility, the
manufacturer has no more than 10 days to fix the nonconformity (45
days for a recreation vehicle). If the manufacturer fails to correct
the nonconformity, the vehicle is presumed to be a lemon.
Under the second presumption, if a consumer’s vehicle is out of
service for repair of one or more nonconformities for a cumulative
total of 15 or more days, the vehicle owner or lessee must send
written notification of this fact to the manufacturer by registered
or express mail. After receipt of the notification, the manufacturer
or authorized service agent (usually the dealer) must have at least
one opportunity to inspect and to repair the vehicle. Once the
vehicle is out of service by reason of repair of one or more
nonconformities for a cumulative total of 30 days (60 days for a
recreation vehicle), the vehicle is presumed to be a lemon.
The process
When providing the statutory written notification to the
manufacturer, consumers should use the Motor Vehicle Defect
Notification form found in the “Consumer Guide to the Florida Lemon
Law” booklet. State law requires the selling/leasing dealer to
provide this booklet to the consumer at the time the vehicle was
acquired, or you can call the Lemon Law Hotline at (800) 321-5366 to
request the guide. The form also can be found online at the Attorney
General’s website, www.myfloridalegal.com/lemonlaw. External Link
In order to qualify for relief under the Lemon Law, there are
certain steps that must be taken by the vehicle owner or lessee.
If the manufacturer has in effect a state-certified informal
dispute settlement program, and the owner or lessee has been
informed in writing how and where to file a claim with the program,
then the owner or lessee must first seek relief through the
certified informal dispute settlement program. This information is
typically found in the vehicle’s warranty booklet or owner’s manual.
If the manufacturer’s certified informal dispute settlement program
does not decide the dispute within 40 days of the date the dispute
is filed, or if the owner or lessee is not satisfied with the
decision, the vehicle owner or lessee can then apply to the Florida
Attorney General’s Office to have the dispute arbitrated by the
Florida New Motor Vehicle Arbitration Board. If the manufacturer
does not have a state-certified informal dispute settlement program,
the vehicle owner or lessee can apply directly to the Florida
Attorney General’s Office to have the dispute arbitrated by the
Florida New Motor Vehicle Arbitration Board.
Vehicle owners or lessees can obtain a Request for Arbitration
form from the Attorney General’s Office by calling the Lemon Law
Hotline at (800) 321-5366, or (850) 414-3500. The form and
additional information about the Lemon Law is also available online
via the website of the Attorney General’s Office at
www.myfloridalegal.com/lemonlaw. External Link
Once the request is approved for arbitration by the Florida New
Motor Vehicle Arbitration Board, the board will hear the dispute
generally within 40 days. The consumer may ask for a continuance of
the hearing, but this will waive the 40-day period. The consumer
does not need to have a lawyer for this hearing but may do so if
desired. If the board decides the case in favor of the vehicle owner
or lessee, the manufacturer must comply with the decision within 40
days of its receipt.
Requests for arbitration MUST be filed with the manufacturer’s
certified program (if applicable), or with the Attorney General’s
Office if there is no certified program, within 60 days after the
expiration of the Lemon Law Rights Period, which is two years after
the date of delivery of the motor vehicle. Failure to timely file
will result in rejection of the request.
Remedies
Remedies awarded to consumers through a manufacturer’s certified
program will vary, and consumers should contact the particular
program directly if they have questions. In cases heard by the
Florida New Motor Vehicle Arbitration Board, if a consumer’s vehicle
is found to be a lemon, the manufacturer must either replace the
vehicle or refund the full purchase price, depending upon the wishes
of the vehicle owner/lessee. Both the refund and the replacement
vehicle remedies include payment by the manufacturer of collateral
charges (reasonable expenses wholly incurred as a result of the
acquisition of the vehicle) and incidental charges (reasonable
expenses directly caused by the substantial defects) incurred by the
owner/lessee. An offset for use of the vehicle is charged to the
owner/lessee based upon a formula contained in the statute.
In a refund remedy, the consumer will be paid only for
nonfinanced collateral charges; financed collateral charges are paid
off by the manufacturer through payoff of the loan. As applicable,
the amount of any net trade-in allowance, cash down payment and
periodic loan or lease payments will be included in a refund remedy.
If the purchase was financed, the manufacturer must also pay the
lien holder according to its interest (which is the balance due or
payoff of the loan). If the vehicle was leased, the manufacturer
must pay the lessor an amount specified by the statute. The lessor
cannot charge the lessee an early termination penalty.
Before filing a civil action in court under the Lemon Law,
consumers must attempt to seek relief through arbitration under
Chapter 681, Florida Statutes.
Appeals and fees
Adverse decisions of the Arbitration Board can be appealed to the
circuit court. A petition to appeal must be filed within 30 days of
the receipt of the decision. If a decision of the board in favor of
the owner or lessee is upheld by the circuit court, the owner or
lessee can recover against the manufacturer the amount awarded by
the board, plus attorneys’ fees, court costs and $25 per day for
each day beyond the 40-day period following the manufacturer’s
receipt of the board’s decision.
NOTE: If the motor vehicle is a recreational vehicle (RV),
towable RVs are not covered by the Lemon Law, and the Lemon Law also
does not cover the “living facilities” of motorized RVs (those
portions of the RV designed, used or maintained primarily as living
quarters). In addition, disputes must be submitted to the RV
Mediation/Arbitration Program (not the Florida New Motor Vehicle
Arbitration Board), which is administered by DeMars and Associates
(800-279-5343). The dispute will be submitted to mediation first,
during which the parties can, with the help of a neutral mediator,
agree to attempt to resolve both living facility complaints and
mechanical complaints. If no resolution is reached during mediation,
the dispute will be referred to arbitration. The arbitrator will not
be the same person who served as the mediator. The arbitrator will
be limited to consideration of matters that are covered by the Lemon
Law, unless both parties agree in writing to expand the scope of the
arbitration hearing to include claims involving the living
facilities. The time limits for compliance with and appeal of
arbitration awards are the same as those for decisions of the
Florida New Motor Vehicle Arbitration Board.
Final thoughts
The Lemon Law also provides that an owner or lessee can file an
action in court to recover damages caused by a violation of the
Lemon Law. If the owner or lessee wins such an action, recovery will
include the amount of any pecuniary losses, litigation costs,
reasonable attorney’s fees and other relief the judge decides is
fair and just. However, a separate suit to collect only attorneys’
fees the consumer has incurred in the hearing before the board is
not allowed.
Vehicles taken back by a manufacturer must have their vehicle
titles marked to show that they had been repurchased under the Lemon
Law. This fact must be disclosed to persons purchasing these
vehicles after they have been repurchased by the manufacturer.
The statutory procedure for getting relief under the Lemon Law is
technical, and there are strict time limits and other requirements.
The time frames and dispute resolution programs differ if the motor
vehicle is a recreational vehicle
Rutgers University, B.A. Political Science, Pre-Law, Languages
Seton Hall University Law School, J.D. Juris Doctor
Post Graduate Courses: Eminent Domain From Start to Finish;
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|
by
Frank John Morelli on Jan. 17, 2017