Category Archives: blog

BCLC Represents Clients in U.S. Federal and State Court Systems

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BCLC Represents Clients in U.S. Federal and State Court Systems

Q. What is the difference between Federal and State Court? Who can practice in which? And what’s the benefit of having a case go to one versus the other?

All Florida attorneys can practice in the State Courts of Florida. However, not all Florida attorneys are admitted to practice in the Federal Courts. In the United States, there are two separate and parallel court systems that have jurisdiction over legal issues which affect people and entities (corporations, partnerships, LLCs, etc.). These two judicial systems, which exist side-by-side, are:

  • The Federal Court system, which enforces Federal laws, rules and regulations, and applies and interprets the Constitution of the United States, where applicable; and

  • The State Court system, which enforces the laws, rules and regulations of a given State (i.e. Florida) and interprets the State’s own Constitution.

The Law Firm of Burman, Critton, Luttier & Coleman and its attorneys are able to represent clients in both the United States Federal and State Court systems. In addition to Florida, BCLC attorneys have practiced in Federal Courts in other states, including New York, Louisiana, Colorado and Georgia, through special admissions granted by each specific Federal court. The advantages of trying a case in Federal Court vary depending on the matter, the parties, and whether or not Federal statutes and/or constitutional issues are implicated.

Specifically, the attorneys at BCLC are admitted to the following courts:

Southern District Court of Florida

  • J. Michael Burman
  • Robert D. Critton, Jr.
  • Mark T. Luttier
  • Gregory W. Coleman
  • Bernard A. Lebedeker
  • Dean  T. Xenick
  • Stephen E. Walker
  • Rita H. Budnyk

Middle District Court of Florida

  • Mark T. Luttier
  • Gregory W. Coleman
  • Bernard A. Lebedeker
  • Dean  T. Xenick
  • Stephen E. Walker
  • Rita H. Budnyk

Eleventh Circuit Court of Appeal

  • J. Michael Burman
  • Robert D. Critton, Jr.
  • Gregory W. Coleman
  • Bernard A. Lebedeker
  • Dean  T. Xenick

Supreme Court of the United States

  • J. Michael Burman
  • Robert D. Critton, Jr.
  • Mark T. Luttier
  • Gregory W. Coleman

Learn more by contacting a BCLC attorney directly at 561-842-2820.

 

Distracted Driving Law is a Must in Florida

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Distracted Driving Law is a Must in Florida

Burman, Critton, Luttier and Coleman LLP Blog

Did you know that Florida does not have a distracted driving law? For example, there is no law against texting while driving. Texting while driving endangers others by distracting the driver and, at times, causing significant injury due to collisions. It is our hope that Senate Bill 52, the “Florida Ban on Texting While Driving Law,” and its companion bill being considered by Florida’s House of Representatives will pass. 

Show your support by writing to your State Representative at the link below. Punishment under the proposed law(s) include non-moving violations, and more significant penalties for causing an automobile collision while using phones or other handheld devices. This includes protecting our children in school zones by punishing those violating the laws and/or using such devices while driving in a school zone. Note that the Bills to support are SB52 and HB13 – both of which are the backbone to protecting your family from injury while driving. 

Find out who your State Representative is here. Then contact them and let them know you support Bills SB52 and HB13!

Blog: Valuation of Assets in a Divorce

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Valuation of Assets in a Divorce

Law Firm of Burman, Critton, Luttier & Coleman Blog

By Stephen Walker, Associate Attorney

Of critical importance in complex divorce cases is the valuation of assets. In a divorce, marital assets will be divided up between the parties through a process called “equitable distribution.” In doing so, the trial court generally begins with the premise that the distribution should be equal.  See § 61.075(1), Fla. Stat. (2012). In order to equitably distribute the marital assets, the judge must identify the marital assets and “the individual valuation of significant assets.” See § 61.075(3)(b), Fla. Stat. A fundamental step in the process of valuing and equitably distributing the parties’ assets is choosing a date on which the value of those assets will be fairly and properly measured. Rarely will the value of significant assets remain static during the pendency of a divorce proceeding. The date for determining the value of marital assets and liabilities is governed by § 61.075(7), Fla. Stat.:

The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge's discretion, the circumstances require.

Thus, under the current statute, there is no bright-line rule, let alone a presumption, regarding the determination of the dates for valuation of marital assets.  The decision is, in large part, left to the judge’s discretion. However, over the years, certain standards have been established and followed with fairness and equity being of paramount consideration. When possible, most trial courts will endeavor to value marital assets and liabilities on a day as close as practicable to the trial if their fluctuation is passive (i.e., not due to the efforts of either party). Certain facts, though, may lead the court to choose an earlier date, such as when the increase (or decrease) in marital assets is directly caused by the actions of one spouse.

In essence, the judge will likely choose among three options for dates in valuing marital assets and liabilities: (1) the date of separation, (2) the date of filing the petition, and (3) the date of trial.  Historically, in deciding between these three options, trial courts have endeavored to choose the date that results in the most fair and equitable valuation for each asset by evaluating whether the actions of one party directly affected the increase and decrease in value of the asset at issue after the date of separation or date of petition.  In such cases, using the earlier of the date of separation or the date of filing the petition is deemed appropriate because the increase or decrease in value is a direct result of one spouse’s actions.  Consequently, the valuation date will ensure that the spouse who directly caused the increase or decrease in value receives the benefit or detriment of his or her actions, by attributing the difference in value of the subject asset or liability between the earlier date and the trial date solely to that party. On the other hand, when a long period of time passes between the date of filing the petition and the date of trial, and the change in value of an asset or liability is the result of passive forces, such market conditions or fluctuation, as opposed to the direct actions of one spouse, the increase or decrease in value of that asset or liability should be allocated between the parties equally, thus, militating towards use of the date of trial as the valuation date.

The attorneys at Burman, Critton, Luttier & Coleman are experienced in handling complex divorce cases.  Should you have questions regarding your case, please do not hesitate to contact me directly at SWalker@bclclaw.com.

Changes to Florida’s Personal Injury Protection (PIP) Law

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Changes to Florida’s Personal Injury Protection (PIP) Law

By Dean Xenick, Associate, Law Firm of Burman, Critton, Luttier & Coleman    

This year the Florida Legislature made broad, sweeping changes to Florida's Personal Injury Protection (PIP) law, limiting benefits and coverage. 

PIP is a type of motor vehicle coverage that covers an insured’s medical expenses and lost wages, or can provide a death benefit in fatal incidents. PIP is referred to as "no-fault" coverage, because PIP benefits are paid without regard to who is at "fault" for the automobile accident. All Florida drivers are required to carry PIP coverage for themselves.   

The new changes to the PIP laws are important and failing to follow them could preclude you from receiving the full PIP benefits you are entitled to under your PIP insurance coverage.  Below is a list of just some of these changes and it is by no means an exhaustive list.  Although some changes to PIP are effective July 1, 2012, the majority of the revisions do not take effect until January 1, 2013.

1) When involved in an automobile accident, individuals seeking PIP medical benefits are required to receive initial services and medical care within 14 days after the motor vehicle accident.   Initial services and care are only reimbursable if “lawfully provided, supervised, ordered or prescribed by a licensed physician, licensed osteopathic physician, licensed chiropractic physician, licensed dentist, or must be rendered in a hospital, a facility that owns or is owned by a hospital, or a licensed emergency transportation and treatment provider. Follow up services and care requires a referral from such providers and must be consistent with the underlying medical diagnosis rendered when the individual received initial services and care.”   This new requirement means that if you do not receive medical treatment for your injuries within two weeks after an incident, by any of the providers listed above, you could be precluded from receiving any PIP benefits.  Therefore, it is imperative that if you are injured in an automobile accident that you receive medical treatment within the 14 day time frame.  

2) In order to receive the full $10,000 PIP of benefits, you must have an "Emergency Medical Condition"   As the Florida legislature’s bill summary states, “the bill applies two different coverage limits for PIP medical benefits, based upon the severity of the medical condition of the individual. An individual may receive up to $10,000 in medical benefits for services and care if a physician, osteopathic physician, dentist, physician’s assistant or advanced registered nurse practitioner has determined that the injured person had an ‘emergency medical condition.’" Chiropractors cannot make this determination.   An "emergency medical condition" is defined as a “medical condition manifesting itself by acute symptoms of sufficient severity that the absence of immediate medical attention could reasonably be expected to result in serious jeopardy to patient health, serious impairment to bodily functions, or serious dysfunction of a body organ or part.”  If an individual is not diagnosed with an emergency medical condition, the PIP medical benefit limit is only $2,500.   This “emergency medical condition” designation is obviously a subjective term, which could mean the difference between an injured person receiving $10,000 in medical benefits or only $2,500 for medical treatment.

3) Massage and Acupuncture are not covered by PIP Despite the palliative and pain relieving benefits of massage and acupuncture, these treatments are no longer covered or reimbursable by PIP, regardless of the type of provider rendering such services.   

4)  Your insurance company can force you to give an "Examination Under Oath" (EUO) and undergo a medical examination or you could lose your PIP benefits Insurers are authorized to take an examination under oath (EUO) of an insured. Compliance is a condition precedent for receiving benefits (which means that the insurer owes zero benefits if the insured does not comply).

The bill also provides that if a person unreasonably fails to appear for an independent medical examination (IME), the carrier is no longer responsible for benefits.  An IME is an examination undertaken and paid for by the insurance company's physician, not the insured's treating physician. The purpose of an IME is not to render treatment to the insured, but rather to determine if the insured is injured and, if so, if the treatment he or she has received was reasonable and necessary.  Although called an "Independent Medical Examination," the doctors who perform IMEs are chosen and paid for by the insurance companies, not the patient/insured.  Refusal or failure to appear for two IMEs raises a rebuttable presumption that the refusal or failure was unreasonable and thus PIP treatment could cease.

Given the new limitations, requirements and time restrictions of the PIP statute, it is more important than ever to be vigilant and proactive after an automobile accident, in order to protect your right to receive medical benefits available under your PIP insurance policy. For more information on the PIP law or any legal issue, please contact any of our attorneys.  This article is not a complete analysis of the PIP statutes, nor does it constitute legal advice. 

To view the new PIP law in its entirety, visit the Florida Senate's website at http://flsenate.gov/Committees/BillSummaries/2012/html/215  and http://flsenate.gov/Session/Bill/2012/119

When it Comes to a Child’s Booster Seat, Proper Fit is Key, According to New Insurance Institute for Highway Safety Rankings

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When it Comes to a Child’s Booster Seat, Proper Fit is Key, According to New Insurance Institute for Highway Safety Rankings

By: Dean Xenick (December 2011)

This past October, the Insurance Institute for Highway Safety (IIHS) issued its newest ratings for children's booster seats with the goal of providing parents (and caregivers alike) with valuable information on how to select the right booster seats for their children. The IIHS went so far as specifically identifying those booster seats which are most likely to provide good lap and shoulder belt fit in a range of vehicles.

The IIHS article stated, "Unlike child restraints with built-in harnesses, a booster seat relies on a vehicle safety belt to buckle the child in. Its purpose is to make the adult belt fit the child better. Booster seats are for kids who have outgrown their forward-facing restraints."

Because traditional vehicle safety belts are designed with adults in mind, and not children or their booster seats, a proper fit between the booster seat, seat belt, and child is imperative to ensure proper restraint in the event of a collision. "When a booster seat is doing its job, the vehicle belt will fit a child correctly,” the article said. “That means the lap belt will lie flat across a child's upper thighs, not across the soft abdomen, and the shoulder belt will cross snugly over the middle of a child's shoulder."

In conducting their testing and issuing the results, the IIHS assessed the booster seats “using a special crash test dummy representing an average-size 6 year-old. Engineers measure how 3-point lap and shoulder belts fit the dummy in each of the tested boosters under 4 conditions that span the range of safety belt configurations in vehicle models. An overall rating for each booster is then assigned based on the range of scores for the lap and shoulder belt measurements." 

The IIHS assigned the booster seats a rating, based upon four categories:

BEST BETS: Seats that provide a good fit for typical 4 to 8 year-olds in almost any car, minivan, or SUV.
GOOD BETS: Seats that provide an acceptable fit in most cars, minivans, or SUVs.
NOT RECOMMENDED: Those seats that don’t provide a good fit and should be avoided.
CHECK FIT: Booster seats the Institute has tested but have varied results depending on child size, vehicle model.

The article also provided guidelines for proper booster seat fit, stating that "both the lap and shoulder belts must fit your child correctly.”

The lap belt should lie flat and on top of the thighs, not higher up on the abdomen. While the shoulder belt should fit across the middle of the child's shoulder. If it falls off the shoulder or rests on the neck, it won't work as well. An improper fit could also encourage your child to move the belt to a dangerous position, such as behind the back or under the arm.

At BCLC, we urge our family, friends, colleagues and clients to take the IIHS’s advice and safety rankings to heart, check how the booster seat you are currently using ranks, and make sure that you are buckling up your children correctly. 
For more information, visit: http://www.iihs.org/research/topics/boosters/default.html

NOTE: All of the information contained in this article was obtained from the Insurance Institute for Highway Safety, who is solely responsible for its testing and findings.

New Risks Associated with Portable and Inflatable Pools (from Yahoo Health, Licensed from Health Day News)

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New Risks Associated with Portable and Inflatable Pools (from Yahoo Health, Licensed from Health Day News)

Burman, Critton, Luttier and Coleman LLP Blog

By Dean Xenick

Nationwide Children's Hospital in Columbus, Ohio recently released a new study which reveals that portable swimming pools, including the increasingly popular, inflatable models, pose serious risks to young children. Researchers studied the drowning deaths of more than 200 children under 12 years old, and found a link to a variety of above-ground pools, some large and deep, others small and shallow. The report, published in the June 20 online edition of Pediatrics, highlights the need for safety precautions around all pools, safety advocates said.

According to lead researcher Dr. Gary A. Smith, director of the hospital's Center for Injury Research and Policy, "About every five days a child drowns in a portable pool in the U.S.," and because these pools are inexpensive and easy to assemble, many parents may not consider them as big a risk as in-ground pools, he said. The greatest risks are for children younger than 5 years, the researchers found.

Safe Kids USA is a nationwide network of organizations working to prevent unintentional childhood injury, the leading cause of death and disability for children ages 1 to 14. Safe Kids USA educates families, provide safety devices to families in need and advocates for better laws to help keep children safe, healthy and out of the emergency room. According to Safe Kids USA President, Meri-K Appy, "Safe Kids has been concerned about the increasing use of backyard pools that are too small for consumers to consider investing in fencing but too large to make them easy to empty and secure safely after each use. This important study confirms our speculation that portable pools in backyards across America pose special risks to young children."

In the Nationwide Children's Hospital study, using 2001-2009 data from the U.S. Consumer Product Safety Commission, Smith's team of researchers identified 209 drowning deaths and 35 near-drownings in children under 12. The team discovered that 94 percent of the children were under 5 and most (56 percent) were boys. Further, about three-quarters of the deaths took place in the child's own yard, usually during the summer. Over 40 percent of the drownings happened while the child was being supervised; 39 percent occurred with no adult supervision; and 18 percent were blamed on a lapse of supervision. The study also concluded that about 40 percent of the drownings took place in a shallow wading pool.

"That's in 18 inches or less of water," Smith said. "Children can drown in very small amounts of water. Very young children can drown in a five-gallon bucket with water in the bottom. It only takes a couple of inches and a few minutes. Close supervision of young children around water is really important, but supervision alone isn't enough," he continued.

While in-ground pools have a variety of safety measures available for parents to purchase, such as fencing and pool alarms, this is not the case for portable pools. Thus, in their study, Smith and his researchers make a call for industry development of reliable pool alarms, covers, and affordable fencing for portable pools. "We have to come up with other strategies that are affordable and effective for portable pools."

The study also raises concerns about pool ladders. "Most of the kids got into the pool using a ladder that was provided with the pool," Smith said. One suggestion is to remove the pool ladder when the pool is not in use and to store it out of reach of children.

Dr. Barbara Gaines, director of trauma and injury prevention at Children's Hospital of Pittsburgh, said that "this reminds us that while water is very inviting for children, it is also extremely hazardous. Never underestimate water."

Gaines' advises that parents need to be very watchful when their children are in and around water, including pools, ponds and bathtubs, to empty wading pools when not in use, it out when the pool is not in use, and parents must actively supervise their children  "Someone has to be on pool duty," at all times.

Lastly, Safe Kids USA promotes a pool-safety concept called "Lock, Look and Learn":

LOCK: Erect fencing at least 4 feet high with a self-latching gate and keep it locked at all times unless an adult is present.

LOOK: Parents and caregivers should watch children in or near the water at all times, and not socialize, read or sleep.

LEARN: "Adults should learn to swim themselves and provide swimming lessons to their children from an early age," Appy said. They should also know how to respond to an emergency — "use rescue equipment, call 911 and perform CPR," she added.

For more information: 

http://health.yahoo.net/news/s/hsn/portablepoolsposedrowningriskforyoungkids

http://www.safekids.org/

http://www.homesafetycouncil.org/index.asp

http://www.parentsareimportant.com/2011/06/summer-swim-safety.html

Stopping Fraud Against the Elderly Why it happens here and what to do about it

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Stopping Fraud Against the Elderly Why it happens here and what to do about it

Burman, Critton, Luttier and Coleman LLP Blog

By Benny Lebedeker

Florida has long been a mecca for retirement. In 2005 approximately 400,000 retired to this state, which was three times the amount of people who retired to California and Arizona. Approximately 17% of the State’s population is over the age of sixty five, and in some counties the percentage of residents over that age tops 30%. Unfortunately while Florida’s subtropical climate and beautiful beaches are a magnet for retirees, those same virtues also attract the con men and unscrupulous businessmen who prey on them. Often the adult children of elderly parents are left picking up the pieces left behind after a parent has been defrauded. Just as often elderly people who have been the victims of fraud are so embarrassed by the fact that they have been taken advantage of that they don’t tell their children or relatives what has happened. Consequently, as is often the case in life, an ounce of prevention is worth a pound of cure. Here are some tips to combat fraud against the elderly:

  1. Be familiar with your parents’ financial activity: Although financial institutions have a statutory duty under F.S. § 415.0134 to report suspected elderly abuse or exploitation, the hard cold reality is that these institutions are businesses which strive to be as efficient and profitable as possible. Therefore banks and brokerage houses typically act to protect their own interests, and often fail to comply with statutory reporting requirements. Moreover, the trend in banking and financial services has long been toward insulating themselves from liability and eliminating the direct, person to person, contacts which are often so critical to spotting fraud. Does you parent have a safe deposit box? You can bet the safe deposit box agreement limits or eliminates the bank’s liability for theft from that box. Does your parent have a checking account? You can bet that over the years the bank has consistently limited the amount of information available to your parents in their monthly statements. Very few bank provide canceled checks anymore, and many of them are pushing clients into on-line banking. These changes typically make it harder for your parents to manage their financial affairs. You should take the time to learn what accounts your parents have and at what institutions. If possible you should have duplicate statements sent to your home, and you should review them for changes in patterns of financial activity. For instance, if you begin to see large checks made out to cash, or frequent withdraws which do not seem to be tied to any specific bill or debt, make a gentle inquiry regarding the purpose of the expenditures.
  2. Simplify, Simplify: A collary of the first rule is to simplify your parents’ financial lives. Where possible, eliminate multiple bank and brokerage accounts, and suggest that your parents use a single branch for their banking. It is much easier to keep track of what is going on if fewer accounts are involved. Very few retired persons need complicated investment strategies or products. Quite simply, most senior citizens need to preserve capital and reduce expenditures – not play the stock market or invest in complicated business ventures.
  3. Teach Mom and Dad to hang up the Phone: Unfortunately, a large number of scams still begin over the telephone. Scammers know that senior citizens often live alone and are isolated, that they are more polite, and that they tend to have more time to speak on the phone. Consequently, scammers have learned over the years that repeat calls and lengthy (sometimes pressuring or threatening) conversations can lead to an elderly person giving financial information out over the phone, or agreeing to a “purchase” or “investment” that is just the first step in a scam. Tell Mom and Dad to never give out personal or financial information over the phone – and that it’s o.k. to simply hang up on someone who seeks this information. Finally, the “Do-Not-Call” registry can prevent many of these calls from ever taking place.
  4. Watch the Usual Suspects: Confidence schemes and frauds typically dress up as legitimate business ventures, and time and again we see the same “covers” being used. These often include the following types of businesses:
  • Contractors
  • Life Insurance/Annuities/Viatical Salesmen
  • Debt Consolidators and Mortgage Brokers
  • Anyone offering a prize or a chance to participate in a contest

Advise your elderly parents that they should avoid any transaction which requires a “deposit” or “fee” up front. The most basic schemes involve transactions where the con man advises the victim that he or she has to pay an initial sum for “materials” (contractor scam), an “initiation fee”, “origination fee”, or “application fee” (financial institution/investment scams); or a “registration fee” or “shipping fee” (contests) and then simply disappear with the victim’s money. Remember, if it sounds too good to be true, it probably is.

The sad reality is that in today’s go-go money is all that matters world no one will look after your elderly parents but you. Your parent’s financial institutions need to maximize profit by providing minimal services in exchange for a maximum fee, law enforcement and prosecutor’s budgets are being slashed, and the old fashioned neighborhoods where everyone watches out for everyone else is pretty much a thing of the past. If you believe a parent has been taken advantage of and would like to see if you have legal recourse, feel free to contact us at Burman, Critton, Luttier & Coleman.

What a Change in Florida’s Insurance Bad Faith Law Can Mean for You: Greater Exposure to Liability

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What a Change in Florida’s Insurance Bad Faith Law Can Mean for You: Greater Exposure to Liability

Law Firm of Burman, Critton, Luttier and Coleman

Insurance companies are required by Florida statute and by common law to act in good faith when negotiating a claim on behalf of its insured. An example illustrates this concept. Assume you are involved in a car accident that was, at least in part, your fault. You have an insurance policy that covers bodily injuries sustained by the other driver up to $50,000 per claim (or $100,000 per accident). If the person you hit was injured and makes a claim for such injuries, your insurance company has a duty to investigate the claim, settle the claim if it is reasonable under the circumstances, keep you informed of the status of the claim and minimize your exposure to liability beyond the limits of your insurance policy. Thus, if the person you hit has a claim that equals or exceeds $50,000, your insurance company generally has a duty to try settle that claim for the policy limit of $50,000. If the insurance company does not and the case proceeds to trial, there is a possibility the person you hit will obtain a verdict against you for more than the $50,000 limit. Without the protection of insurance bad faith laws, you would be responsible for the difference. So if the verdict was $250,000, you would be responsible for the amount that exceeds your policy – $200,000. However, that is where Florida’s bad faith law comes into play. If the insurance company acted in bad faith in refusing to settle the claim, the insurance company can be held liable for the $200,000.

Simply put, insurance bad faith laws keep insurance companies honest because they provide consequences if your insurance company does not act in good faith in protecting your interests. At the same time, they can protect you against liability for the $200,000 excess in the example above. The governor and Florida legislature are proposing significant changes to Florida’s bad faith law that may give your insurance company little incentive to protect your interests and also puts a far greater burden on you, the insured, to supply information, paperwork, medical records and additional information. Nevertheless, the current bad faith laws are still in place and the attorneys at Burman, Critton, Luttier & Coleman have many years of experience handling such insurance claims and fighting for clients that are victims of insurance bad faith. Should you have questions regarding your rights, please do not hesitate to contact our office.

New Guidelines for Children’s Car Safety Seat Use

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New Guidelines for Children’s Car Safety Seat Use

Burman, Critton, Luttier and Coleman LLP Blog

By Dean Xenick

Unfortunately, every year thousands of young children are killed or injured in car crashes. In fact, automobile accidents are the leading cause of death for children ages 4 and older. You can help keep your child safe by properly using car safety seats each and every time your child is transported in a vehicle.

On March 21, 2011 the American Academy of Pediatrics (“AAP”) released its updated car safety seat recommendations, which were published in the April 2011 issue of Pediatrics. The most significant change is that the AAP is now recommending that parents keep their toddlers in rear-facing car seats until age 2, or until they reach the maximum height and weight for their seat. The AAP also advises that most children will need to ride in a belt-positioning booster seat until they have reached 4 feet 9 inches tall and are between 8 and 12 years of age. Another recommendation is that children should ride in the rear of a vehicle until they are 13 years old.

These new recommendations differ from the AAP’s previous policy, released in 2002, which recommended that it was safest for infants and toddlers to ride rear-facing up to the limits of the car seat, citing age 12 months and 20 pounds as a minimum. As a result, many parents turned the seat to face the front of the car when their child turned one year old.

As the March 21, 2011 AAP release states:

“Parents often look forward to transitioning from one stage to the next, but these transitions should generally be delayed until they’re necessary, when the child fully outgrows the limits for his or her current stage,” said Dennis Durbin, MD, FAAP, lead author of the policy statement and accompanying technical report.

“A rear-facing child safety seat does a better job of supporting the head, neck and spine of infants and toddlers in a crash, because it distributes the force of the collision over the entire body,” Dr. Durbin said. “For larger children, a forward-facing seat with a harness is safer than a booster, and a belt-positioning booster seat provides better protection than a seat belt alone until the seat belt fits correctly.”

While the rate of deaths in motor vehicle crashes in children under age 16 has decreased substantially – dropping 45 percent between 1997 and 2009 – it is still the leading cause of death for children ages 4 and older. Counting children and teens up to age 21, there are more than 5,000 deaths each year. Fatalities are just the tip of the iceberg; for every fatality, roughly 18 children are hospitalized and more than 400 are injured seriously enough to require medical treatment.

New research has found children are safer in rear-facing car seats. A 2007 study in the journal Injury Prevention showed that children under age 2 are 75 percent less likely to die or be severely injured in a crash if they are riding rear-facing.

“The ‘age 2’ recommendation is not a deadline, but rather a guideline to help parents decide when to make the transition,” Dr. Durbin said. “Smaller children will benefit from remaining rear-facing longer, while other children may reach the maximum height or weight before 2 years of age.”

Children should transition from a rear-facing seat to a forward-facing seat with a harness, until they reach the maximum weight or height for that seat. Then a booster will make sure the vehicle’s lap-and-shoulder belt fit properly. The shoulder belt should lie across the middle of the chest and shoulder, not near the neck or face. The lap belt should fit low and snug on the hips and upper thighs, not across the belly. Most children will need a booster seat until they have reached 4 feet 9 inches tall and are between 8 and 12 years old.

Children should ride in the rear of a vehicle until they are 13 years old.

Although the Federal Aviation Administration permits children under age 2 to ride on an adult’s lap on an airplane, they are best protected by riding in an age- and size-appropriate restraint.

“Children should ride properly restrained on every trip in every type of transportation, on the road or in the air,” Dr. Durbin said.

Buckling up your child is the easy part. However, choosing the right seat for your child can be a daunting task, especially with so many different car safety seats on the market today.

The type of car safety seat your child needs depends on several factors, including your child’s size and the type of vehicle you have. The following information from the AAP offers guidance on choosing the most appropriate car safety seat for your child.

Here is an abbreviated list of the AAP’s recommendations regarding car safety seats, taken from the APP website, www.healthychildren.org.

Infants and toddlers—rear-facing

The AAP recommends that all infants should ride rear-facing starting with their first ride home from the hospital. All infants and toddlers should ride in a Rear-Facing Car Safety Seat until they are 2 years of age or until they reach the highest weight or height allowed by their car safety seat’s manufacturer.

Types of rear-facing car safety seats

There are 3 types of rear-facing car safety seats: infant-only seats, convertible seats, and 3-in-1 seats. When children reach the highest weight or length allowed by the manufacturer of their infant-only seat, they should continue to ride rear-facing in a convertible seat or 3-in-1 seat.

Toddlers and preschoolers—forward-facing

All children 2 years or older, or those younger than 2 years who have outgrown the rear-facing weight or height limit for their car safety seat, should use a Forward-Facing Car Safety Seat with a harness for as long as possible, up to the highest weight or height allowed by their car safety seat’s manufacturer. It is best for children to ride in a seat with a harness as long as possible, at least to 4 years of age. If your child outgrows his/her seat before reaching 4 years of age, consider using a seat with a harness approved for higher weights and heights.

School-aged children—booster seats

Booster seats are for older children who have outgrown their forward-facing car safety seats. All children whose weight or height is above the forward-facing limit for their car safety seat should use a Belt-Positioning Booster Seat until the vehicle seat belt fits properly, typically when they have reached 4 feet 9 inches in height and are between 8 and 12 years of age. The owner’s manual that comes with your car safety seat will tell you the height and weight limits for the seat. As a general guideline, a child has outgrown his forward-facing seat when any one of the following is true:

  • He/She reaches the top weight or height allowed for his/her seat with a harness. (These limits are listed on the seat and also included in the instruction booklet.)
  • His/Her shoulders are above the top harness slots.
  • His/Her ears have reached the top of the seat.

For more information on this topic, including all of the AAP’s recommendations for how to shop for, install, and use child car safety seats, visit the HealthyChildren.org website by following this link: http://www.healthychildren.org. 

You can also view the AAP’s March 21, 2011 News Release with the updated guidelines here: http://www.aap.org/advocacy/releases/carseat2011.htm.

At Burman, Critton, Luttier & Coleman, making a difference and keeping our communities and children safe is very important to us. If you have questions regarding child safety seats or defective products, please do not hesitate to contact our office.

Florida’s Alimony Statute Undergoes Facelift

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Florida’s Alimony Statute Undergoes Facelift

Law Firm of Burman, Critton, Luttier & Coleman

Florida’s alimony statute (§61.08, Florida Statutes) has undergone a facelift in the past year, with several substantive changes designed to provide more structure and guidance to family law practitioners and parties in dissolution of marriage proceedings.

If nothing else, two main points to take away from this brief article are that Florida law now: 1) specifically defines and categorizes the length of a marriage; and 2) provides for for what is called “durational alimony.”

Pursuant to the new amendments, which became effective July 1, 2010, has broken down the length of marriages as follows:

  • “Short-Term” marriage (< 7 years): A marriage lasting less than 7 years, is now deemed a
  • Moderate-Term” marriage (>7 years but less than < 17 years): A marriage that lasts at least 7 years but less than 17 years; and
  • “Long-Term” Marriage (>17 years): A marriage lasting greater than 17 years.

“Length of marriage” is defined as the date of the parties’ exchanged vows until the date a spouse files a Petition for Dissolution of Marriage.

For the most part, the changes to the alimony statute merely codify the policies and results Florida courts have been espousing for the last decade. However, probably the most notable change under Florida alimony law, is the addition of what is termed “durational” alimony, a brand new option for the Florida courts in awarding alimony to a spouse. This notion of durational alimony is well-established in various other states, and finally, the Florida legislature has come around to address a gaping hole in its statutory framework. 

Durational Alimony:  For the first time ever in Florida, “durational alimony” is now provided for under Florida law. Durational alimony has been implemented to be applied to short-term and moderate-term marriages (f/k/a “grey-area” marriages). The statutory framework for alimony awards essentially left a huge hole for moderate-term marriages. 

Historically, Florida courts were somewhat handcuffed in alimony awards for moderate-term marriages (f/k/a “grey-area” marriages), which inevitably led to protracted litigation.  For example, a spouse in a 10-12-year marriage would either be awarded permanent alimony, or some hybrid alimony award for a brief duration. Often times, a spouse would choose to roll the dice and proceed to trial in hopes the Court would award permanent alimony, because the alternative (some hybrid of rehab or bridge-the-gap alimony) was his or her worst day in Court anyway. Thus, the Florida legislature implemented “durational” alimony so that it may be awarded when permanent alimony is not appropriate. 

The amount of durational alimony awarded is modifiable only upon a showing of substantial change in circumstances; however, the length of a durational alimony award is non-modifiable (except under exceptional circumstances) never to exceed the length of marriage. 

It remains to be seen the interplay between durational and permanent alimony in moderate-term marriages. Regardless, at least the statute provides bright-line standards and definitions, while trying to plug the gap on alimony awards in moderate-term marriages.

Further, the new statute sets forth subtle nuances to each type of alimony:

  • Bridge-the-Gap Alimony: This type of alimony is usually awarded in short-term marriages where a spouse needs support for a brief duration after the divorce to become self-supportive. The new wrinkle expressly states that such an alimony award cannot exceed 2 years duration and is non-modifiable in amount or duration.
  • Rehabilitative Alimony: Typically awarded in cases where a spouse is enrolled or anticipates becoming enrolled in educational/vocational programs during and/or subsequent to the divorce proceedings. Although many trial judges have long-required a written rehabilitation plan, the new statute expressly requires a spouse to create a specific and defined written rehabilitation plan to submit to the Court for approval and incorporation into any Final Judgment.

Thus, if a spouse suddenly gets the urge to go to law school or the police academy during the dissolution proceedings, despite her training as a nurse for 15 years, he or she is now required to give a detailed “rehabilitation plan” in writing to be approved by the Court.

Rehabilitative alimony typically will be awarded for a brief duration pursuant to the rehabilitation plan, and is modifiable only upon: a) substantial change in circumstances; b) non-compliance by the spouse with the rehabilitation; and/or c) completion of rehabilitation plan. 

  • Permanent Alimony: Permanent alimony is available in all long-term and/or moderate-term marriages.  In short, if the parties’ marriage is greater than 17 years, then permanent alimony is the presumptive alimony flavor for the Court to award. 

Permanent alimony can be awarded in short-term marriages, but “only under exceptional circumstances.” However, the phrase “exceptional circumstances” is not defined by the new statute, and thus it should be interesting to see what creative lawyers come up with to constitute “exceptional circumstances,” warranting permanent alimony in a Short-Term marriages. Historically, exceptional circumstances have been deemed to exist in situations where one spouse is permanently injured and/or suffers from a disease or illness rendering the spouse unable to provide for themselves moving forward.

The new amendments should alleviate some of the recurring issues and uncertainty in alimony awards in dissolution proceedings. It will be interesting to see what new trends evolve and issues present themselves under the new statute; however, at least the legislature has taken a step in the right direction to provide further guidance in this rather amorphous area of family law.

The attorneys at Burman, Critton, Luttier & Coleman are experienced in handling alimony and martial law cases. Should you have questions regarding your rights, please do not hesitate to contact our office.

Electronics Leading to Pedestrian Injuries and Fatalities

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Electronics Leading to Pedestrian Injuries and Fatalities

Law Firm of Burman, Critton, Luttier & Coleman

As our society becomes increasingly obsessed with “state of the art” electronics, the number of occurrences of pedestrians getting struck by automobiles has increased drastically. Research has revealed that, on a national level, pedestrians are involved in 12% of traffic fatalities. Numerous states have recently attempted to deter driver texting. Numerous states are also taking steps to educate pedestrians on the dangers of texting or surfing the web while walking or running.

Research confirms that pedestrians wearing headphones in both ears while walking or jogging on a street, road, intersection or highway are equally at risk to become involved in accidents. A measure to limit the use of electronic devices is also expanding to runners, skaters and bicyclists. A recent proposal under consideration would permit pedestrians, runners and cyclists to only wear headphone in one ear.

These proposed restrictions come after safety advocates noticed the significant increase over the last several years in the number of pedestrian fatalities.

This trend is certainly a wakeup call and translates into a need to educate pedestrians, runners and cyclists to promote awareness of the dangers of inattentiveness.

One should take extra precautions and be extremely cautious when riding a bicycle, jogging or simply walking as a pedestrian while wearing headphones or using cell phones or any other electronic device.

At Burman, Critton, Luttier & Coleman, making a difference and keeping our communities safe is very important to us. Preoccupied pedestrians, bikers and runners can be just as dangerous and deadly as distracted drivers. Please be alert, listen and use common sense at all times.

Parking Lot Safety and Negligent Security

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Parking Lot Safety and Negligent Security

Burman, Critton, Luttier and Coleman LLP Blog

By Daniel Lustig

Poor lighting conditions, faulty or no security and instances of criminal activity are all dangerous components of unsafe parking lots that could lead to serious injuries and death. Learning to discern whether an area of a parking lot is a "safe" place to park your vehicle could save you, or your loved one, from sustaining incapacitating injuries as a result of a crime committed by a perpetrator hiding in dark areas of the lot.

Whenever traumatic injuries or a tragic death occurs as a result of a crime in a parking lot, we think in hindsight about how this terrible incident could have been avoided. Unfortunately, sometimes certain steps could have been taken by the victim to minimize his or her exposure to predators. It is important to remember that whether is daytime or night time, parking your vehicle near the entrance of the building you intend to visit minimizes the opportunity of a criminal to hurt you, as the criminal runs a higher risk of encountering opposition and facing security personnel. Parking near a light post is also extremely important. If the the sun sets, you want to ensure that you are parked in a well lit area near the building. Maintaining yourself visible to others as you walk towards your vehicle prevents your from becoming a target. Remember to keep your car keys in your hand and ready for easy access into your vehicle. If possible, do not walk to your vehicle alone. Whenever a security office is available, ask to be escorted to your vehicle.

Predators prowl dark parking lot areas, hide between vehicles and tend to strike near easy escape routes. Certainly, investigation often reveals that in most circumstances security measures could have been implemented by the owner of the parking lot to deter criminal activity. Owners and those who exercise control over unsafe parking lots may be held liable for damages to victims of tragic crimes occurring in their property.The law in Florida in negligent security cases places a duty on the owner and on the party in control of the parking lot where the crime occurred, to maintain the premises in a reasonable safe condition.

As a consumer and victim of a tragic crime, or as a family member of a murdered victim, you have the right to recover damages against the party who could have placed preventive measures in a parking lot to avoid a foreseeable crime. The attorneys at Burman, Critton, Luttier and Coleman are experienced in handling negligent security cases.  Should you have any questions about your rights, please do not hesitate to contact our office.

Tis’ the season – to be careful.

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Tis’ the season – to be careful.

Burman, Critton, Luttier and Coleman LLP Blog

By Benny Lebedeker

As we head out to the malls and stores to engage in our annual binge of holiday shopping, we are not the only ones excited by the advent of the season. As the still unsolved and tragic Bochicchio murders remind us, there are those unscrupulous (and worse) elements of society who view the holiday season as a time of opportunity, when busy schedules and open purses can mean a happy holiday for the criminals among us. Here are some tips to make your season safer and more enjoyable.

Parking lots – One of the areas where you are at your most vulnerable. It is virtually impossible to secure a large parking lot. Parking lots present open access to the public, the sheer size of many of these lots dilute the presence of whatever security officers may be working, large SUVs and other vehicles obscure the view of what is happening around, and the lighting is often less than ideal. To protect yourself remember these simple tips:

  • Park as close to the store as possible. Circling around a crowded parking lot looking for an open space is never fun, but a few minutes it costs you may save you a lifetime of misery.
  • If you have to park away from the entrance to the mall or store, look for an area which is well lit, where there is a security camera, or where there are passersby who can observe what is happening around your care. Never park behind a mall or store, or in areas where your vehicle is hidden or obscured from the public.
  • Travel in a group – especially at night.
  • Take your keys out of your purse or pocket when you leave the mall or store so that you aren’t fumbling for them when you reach your car.
  • If you have multiple packages to carry, ask a security guard to escort you to the car.

Inside the mall or store – Once inside the mall or store, the potential risks posed

by criminal activity do not disappear. While the interior spaces of a mall or store are better lit and often patrolled by security, keep these important tips in mind:

  • Crowds provide cover. Crowded areas allow criminals to blend in. Be aware of the person or persons who seem to follow you inside a store, bump into you, or stand too close. If the behavior of a particular person makes you uncomfortable or seems suspicious, alert security or store personnel.
  • Keep your purse closed and in hand. An open purse, or a purse dangling by a shoulder strap, can be a tempting target. If you’re a man, keep your wallet in a jacket pocket, or in the front pocket of your pants, not in your back pocket where it is easily accessible.
  • Watch the kids. The unfortunate reality is that children are often the target of criminal activity in today’s world. NEVER leave a child unattended, or use a video arcade or toy store as a baby sitter. Pedophiles and molesters frequently “case” areas where children congregate. An unattended child is a prime target.

Under Florida law a mall or store owes its patrons a duty to exercise reasonable

care for their safety. This is a non-delegable duty, which means that a the mall or store owner cannot avoid the consequences of failing to exercise reasonable care by asserting that it hired a security guard company or parking lot manager, and that the company or persons the mall or store owner hired was negligent. While prior criminal activity on a property will alert the property owner to the fact that criminal activity on the premises is foreseeable, the absence of such activity does not eliminate the mall or store owner’s duty to maintain a reasonably safe premises. Unfortunately, there is often a gulf between what the law requires and the security measures a particular mall or store implements. The best way to ensure your protection is to be proactive when it comes to your safety, and take those small steps which can make a happy season a safe.

Tips To Being An Effective Juror

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Tips To Being An Effective Juror

Burman, Critton, Luttier and Coleman LLP Blog

By Dean Xenick

Jury duty is an extremely important civic duty, as juries are essential for our court system to work effectively. If one knows what to expect and understands the great importance of jury duty, participating in the greatest court system in the world can become a rewarding experience.

Know what Judges and Attorneys expect from Jurors

Judges and attorneys have the utmost respect for jurors and the vital role they play in our court system. We know that you take time out of your busy lives to perform this essential role in justice. In order for the system to work effectively, jurors, attorneys, and judges must work together to administer justice. Thus, an effective juror must: (1) Be honest, forthcoming, and genuine; (2) Listen attentively and take good notes; (3) Ask questions if you do not understand; and (4) Listen to all the evidence prior to forming any conclusions about the case. Of course, these are general guidelines and you should always follow the rules of your specific jurisdiction, which will be explained to you by the judges and attorneys in your specific case.

Be honest, forthcoming, and genuine

I cannot stress enough how important it is to be honest and forthcoming with the judges and attorneys while performing jury duty. During Voir Dire (jury selection) you will be asked a series of questions by the attorneys and judge. Always answer honestly and disclose full answers to these questions. Failure to do so could cause a mistrial or appeal after the case has concluded. If you have a sensitive issue to discuss, ask the judge to speak privately about it, instead of sharing with the rest of the jury pool. The questions posed by the lawyers are not meant to embarrass or harass, they are asked to discover your thoughts on certain topics. Lastly, be genuine; don't try to give answers you think the attorneys or judge wants. There is no "right answer," other than what your true, honest feeling is. If you stay true to who are and give honest answers to the questions posed to you, you will do fine.

Listen attentively and take good notes

It is essential to listen to all of the evidence presented and take good notes (if allowed by the judge). Just like if you miss an important scene of a good movie, if you lose focus during essential testimony in a trial, it could completely change your take on the case. Get a good night's rest each night, so that you can listen to all of the evidence presented and don't fall asleep! If the judge allows it, take notes throughout the trial. We attorneys have countless notes that we use in preparation for and during trial, so we can't expect you to digest a 4 or 5 day trial without taking notes. Some jurisdictions also allow juror questions. If that is the case, write your questions down so you don't forget to ask.

Ask questions if you do not understand

There is no shame in asking questions. Sometimes as lawyers we get so caught up in our case that we fail to properly explain legal concepts or specific facts. If you are unsure about something, ask the judge, don't guess. As stated above, some jurisdictions allow juror questions to attorneys about the specific facts and evidence presented. Don't be afraid to use this opportunity to have testimony or evidence clarified, if you do not understand something. As attorneys, we want you to have a full understanding of the facts and evidence presented, as well as the law. So if you don't understand something, ask.

Listen to all the evidence prior to forming any conclusions about the case

In a mystery novel, at the beginning you may think one person "did it," but in the end, it is usually the person you never expected. Thus, until you get all of the information in your possession, you cannot make an informed decision. Similarly in a trial, your thoughts at the beginning of a case may make you feel one way, while at the end you may have different thoughts. Therefore, do not make any conclusions about the case until you begin your deliberations. During deliberations you can take all of the evidence together and make an informed decision. In a criminal trial, the prosecution goes first, and then the Defendant, while in a civil trial the Plaintiff goes first, again followed by the Defendant. If you have made up your mind by the end of the Prosecution/Plaintiff's case, then the Defendant is prejudiced since you have decided the case before they can present their evidence and testimony. So, listen to all of the evidence presented and do not form opinions until deliberations.

Halloween Safety Tips – Protect Your Children

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Halloween Safety Tips – Protect Your Children

Law Firm of Burman, Critton, Luttier & Coleman 

Even if your children are not trick-or-treating on "Elm Street," Halloween can be a safety "nightmare" for moms and dads.

Children are more than twice as likely to be killed by a vehicle while walking on Halloween than any other night of the year, according to Safe Kids USA. In an analysis of deaths from 2002 to 2006, the group found that an average of 2.2 children are killed in pedestrian accidents from 4 p.m. to 10 p.m. on Halloween, compared with one child every other evening at the same time. More than 540 kids under age 14 are killed in pedestrian accidents each year. According to the Centers for Disease Control, an average of four wrongful deaths per year occurred during Halloween hours amongst children ages 5-14 years.

How to Enjoy a Safe Halloween

  • When escorting kids around neighborhoods, be mindful to use cross walks and always avoid jaywalking – look left and right and left again and make eye contact with drivers.
  • Nearly 80 percent of pedestrian deaths occur between intersections, according to Safe Kids USA.
  • Dress kids’ costumes with reflectors and give them glow sticks. Adults should carry a flashlight both to illuminate walkways for children and to alert motorists that trick-or-treaters are in the vicinity.
  • Check with the local police department (in Palm Beach visit: http://www.pbso.org) to determine the safest areas to trick-or-treat, especially when going door to door in a new neighborhood.

Driver Safety Tips for Halloween Eve

Last year, 4,378 people were killed in pedestrian accidents. Halloween can be a dangerous time for young pedestrians. Often children are so excited that they dart out into traffic. 84% of pedestrian deaths among young pedestrians occur at non-intersection locations. Drivers need to be hyper-vigilant on Halloween. The following are some tips for drivers to insure that a pedestrian accident does not occur:

  • Don't use a cell phone while driving because being distracted can lead to an accident.
  • Watch for children darting across streets and from between parked cars.
  • Stay below the posted speed limit during trick-or-treating hours and in neighborhoods.
  • Do not attempt to pass stopped cars. They could be stopped for children crossing the street or to drop off children.
  • Stay alert at intersections.
  • Pay attention to children on sidewalks as they may suddenly run across a street.
  • Don't assume that a child approaching your car sees you; A mask or excitement might obscure their vision.
  • If you are dropping off a child, when you pull to the curb, turn on your hazard lights to alert other drivers.
  • If you attend a Halloween party, do not drive with a mask on.

At Burman, Critton, Luttier & Coleman making a difference and keeping our communities safe is very important to us. Please be alert and help keep all children safe this Halloween.

The Unexpected Danger of Picking Fruit: ELECTROCUTION!

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The Unexpected Danger of Picking Fruit: ELECTROCUTION!

Law Firm of Burman, Critton, Luttier & Coleman

Many Florida residents have an orange tree, grapefruit tree, avocado tree or mango tree in their yard, but fail to consider the potential danger associated with picking fruit from those trees: POWER LINES!! Many fruit trees can grow into and around overhead power lines, causing a danger to you and your family. Not only is there a risk of electrocution by coming in contact with a power line, but a power line that is touching a tree limb can also cause the tree to become energized. As a result, just touching a branch can result in serious injury or death.

In the last year alone, there have been at approximately 7 incidents in Florida in which a person was injured or killed while picking fruit. In the past, if you noticed a tree in contact with power lines, you could call the power company and they would send out someone to trim the trees. However, in an effort to cut down on costs, many power companies have changed their policies and only trim trees that present a danger of causing the power lines to snap. Otherwise, the trees will only be trimmed according to the planned cycle – typically once every 6 years. So what can you, as a concerned citizen or parent, do to protect against the potential dangers:

  • Be aware of power lines: prior to picking fruit, be sure to look up and see if there are any power lines in the area.
  • If there are power lines in contact with or even close to the tree, STAY AWAY from the tree and call your local power company, let them know of the problem and ask that they send someone to trim the tree. 
  • Do not use any sort of metal object as it can act as a conductor of electricity, creating a path for the electricity to flow from its source to you. This can result in serious injury or death. However, if there are power lines near the trees, remember to STAY AWAY from the tree and call your local power company.
  • Ladders, even non-metallic ladders, can act as a conductor of electricity, so avoid using ladders near trees if power lines are close to the tree.
  • In addition to picking fruit, activities such as tree trimming, climbing trees, building a tree house, working on roofs, removing/installing antennas or satellite dishes or any other activities that can put you closer to a power line can pose a danger of electrocution. Again, be aware of all power lines in the area; they can be deadly!

At Burman, Critton, Luttier & Coleman, LLP, we are experienced in handling cases involving injury or death resulting from contact with power lines. If you or someone you know has been injured or died as a result of contact with a power line, please call us at             561-842-2820       to schedule a meeting with one of our attorneys. 

Motorcycle Safety Is An Important Issue

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Motorcycle Safety Is An Important Issue

Burman, Critton, Luttier and Coleman LLP Blog

Motorcycle safety is extremely important. Experienced riders know that public roads are dangerous and precautions must be taken to ensure safety. Burman, Critton, Luttier and Coleman attorneys know all too well that motorcycle accidents happen; however, taking precautions can save your life and prevent injuries.    

Riders should always wear the appropriate motorcycle gear, which includes wearing a helmet, leathers, boots, a high-visibility vest and gloves. If you’re riding at night, slow down, wear reflective clothing, check all your lights, clean your visor or windshield, and be careful with your speed when in a rain storm. 

Riders should also consider taking a class which helps increase skills and awareness. Check and see if your state requires a motorcycle endorsement prior to highway riding and riding at night. These types of laws help promote safety, but do not guarantee it, which is why you should take a class to hone your road skills. It will allow you to be a better and more aware rider.  

Motorcycle accidents happen for several reasons – weather conditions, poor visibility, inexperience, and when motor vehicles fail to yield the right-of-way.  Under any of these circumstances, it could be a catastrophic for the biker and his passenger. Taking safety first will help to prevent serious injury.  

If you follow the above steps and precautions and achieve the goal of becoming a safe rider, it could be the difference between few scratches and serious road rash or injury. Learn better skills before you need to use them. 

If you are involved in a motorcycle accident, it is critical that you preserve all the evidence including, but not limited to, helmet, leathers, boots, vest and gloves. It is also critical that pictures be taken of the motorcycle and that a skilled investigator visit the scene to photograph same in an effort to help determine the cause of the accident. The attorneys at Burman, Critton, Luttier and Coleman know the tricks insurance companies play on the injured so it is important that you seek counsel immediately after the accident to preserve and maximize your claim for pain and suffering, medical bills, lost wages and other issues that may have been compromised due to the negligence of another. 

Motorcycle Resources:

Motorcycle Safety Foundation

Ride Smart Florida

ABATE of Florida

Texting While Driving: More Dangerous Than DUI?

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Texting While Driving: More Dangerous Than DUI?

Burman, Critton, Luttier and Coleman LLP Blog

By: Dean Xenick, Esq.

Burman, Critton, Luttier & Coleman encourages you to participate in the American Automobile Association (AAA), the Department of Transportation, and Seventeen magazine’s “Two-Second Turnoff Day” by taking two seconds to turn ioff your cell phone before driving. It could save a life.

It is common knowledge that drinking and driving is one of the most dangerous activities undertaken with a motor vehicle and should never be attempted; however, new studies are now suggesting that texting while driving could be even more dangerous than driving while under the influence of alcohol. 

In the August 2, 2010, edition of Seventeen magazine, “texting while driving is among the riskiest of common driving distractions. According to AAA, taking your eyes off of the road for two seconds doubles your risk of getting into a crash. Nearly 6,000 people died in 2008 in crashes involving a distracted or inattentive driver and more than a half million were injured, according to the National Highway Traffic Safety Administration.” 

Unfortunately, texting is on the rise, up from 9.8 billion messages a month in December 2005 to 110.4 billion in December 2008. And even though 84 percent of teen drivers know it’s dangerous, almost nine in 10 teenage drivers (86 percent) have driven while distracted.

Car and Driver magazine, in an effort to show the real world consequences of texting while driving, pitted texting while driving against drinking and driving in an “unofficial” test on a private, closed airport runway. First, a baseline reading of reaction time was taken, by mounting a light to the windshield of a test vehicle at eye level, meant to simulate a lead car’s brake lights. When the red light on the windshield lit up, the driver was instructed to hit the brakes.

First, they tested both drivers’ reaction times at 35 mph and 70 mph, while sober and without any distractions, to get the baseline readings. This procedure was repeated while the drivers read a text message on their phone aloud, which was then followed by a trial with the drivers typing the same message they had just received. All drivers were told to use their phones exactly as they would on a public road.

Once the baseline and texting tests were done, the test drivers then got out of the vehicle and drank beverages containing three ounces of alcohol. After each drink, the drivers blew into a breath-alcohol analyzer until they reached the impaired drunk driving limit of 0.08 percent blood-alcohol content. They then repeated the red light brake test without any texting distraction. The results showed that texting while driving resulted in worse driver reaction times than drunk driving. In some of the worst cases in the test, the amount of roadway needed to stop the vehicle while texting was up to 10 times longer, more than while impaired. For example, if while intoxicated it took a subject vehicle 31 feet to come to a stop, that number increased to 319 ft. while writing a text message.  Those are staggering numbers.

Since both texting and intoxication led to longer stopping distances, the folks at Car and Driver say, “the key element to driving safely is keeping your eyes and your mind on the road. Text messaging distracts any driver from that primary task. So the next time you’re tempted to text, tweet, e-mail, or otherwise type while driving, either ignore the urge or pull over.” 

Therefore, on September 17th, Seventeen magazine, AAA and the Department of Transportation are asking everyone to save a life and participate in the “Seventeen Two-Second Turnoff Day by taking two seconds to turn off their cell phone before driving. Instead of spending two seconds looking away from the road while driving distracted, use those two seconds to turn off your phone before you get behind the wheel.” Better yet, start this practice the next time you get into your vehicle. And, as always, never drink and drive.

Monitoring Children’s Cell Phones

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Monitoring Children's Cell Phones

Burman, Critton, Luttier and Coleman LLP Blog

“Is it legal for me to read or monitor my child’s text messages, Facebook, e-mails, cell-phone records, and other technology-based communications?”

Recently, this issue was raised between a father and mother. The mother saw absolutely nothing wrong with viewing the text messages, e-mails, and list of recent phone calls made and received on their 14 year old child’s cell phone. The father was concerned about the child’s privacy rights. Generally, a minor is a person under the age of 18 years.

In a short and over-simplified answer, the mother was right. A parent is within his or her legal right in reviewing a child’s cell-phone and computer communications, postings, and records. There is ample software available that allows a parent to do just that. The FBI website and other Law Enforcement websites will tell you that such monitoring is simply being a good parent. Such sites offer tips on how to address these issues with your child.

Interestingly, I posed this same question to a group of parents with children of varying ages. Their response was almost unanimous in stating that “you’re darn right, I monitor my child’s cell-phone and computer communications. It is simply being a good parent.” That being said, most parents agreed that the perimeters of what is appropriate and inappropriate in using a cell phone or computer should be openly discussed between the parents and child. Most found that open and frank discussions lead to responsible use of cell phones and computers. More often than not, it is the parent that pays for the cellphone and internet access. Most also agree that a cell-phone, computer or other forms of technology should not become an extension of the child’s personality. Use should be limited to when it is a necessity. – Mom. Can you pick me up from practice? I need to do research for a school paper. And so on.

Children, even when living under your roof, do have protected privacy rights in other matters. Most of these areas that are constitutionally protected are common sense and would be more appropriately discussed in another blog.

Use common sense. Create an atmosphere of trust with your child. Make sure they understand what is appropriate use of technology-based communication. Make sure they know there are consequences, sometimes heart-wrenchingly serious and/or legal consequences, to what is said in a text message or posted on Facebook. 

Commercial Arbitration Agreements…The Pitfalls & Practicalities

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Commercial Arbitration Agreements…The Pitfalls & Practicalities

Burman, Critton, Luttier and Coleman LLP Blog

By: Benny Lebedeker, Esq.

Due to the fact that they are so prevalent in the marketplace, understanding commercial arbitration contracts is necessary. Whether you are purchasing an appliance or shares of a corporation on the New York Stock exchange, the chances are that tucked away in the fine print of a contract or receipt is a provision which states that you have waived your right to file a lawsuit in the event of a dispute with the provider of the good or service you are purchasing, and that you agree to submit any such disputes to binding arbitration.

Arbitration, defined most simply, is the submission of a dispute to a private forum. Originating in large part from the organized labor movement, the original idea was to streamline the resolution of disputes by submitting them to a person or panel of persons who would act as a private judge. The rationale was that if the parties got to choose the decision makers, they could select a person who had knowledge of the subject matter. For instance, if the dispute involved a disagreement between a shop foreman and a manager who worked in a steel mill, an arbitrator who had past experience working in a similar mill could be selected. This person might have additional insight into the dispute based upon his own experiences and, the theory goes, be in a better position to resolve the dispute. Over time Courts began routinely enforcing such provisions, and the current state of the law is that arbitration provisions are not only enforceable, but that they are favored under the law.

Unfortunately, the nature and scope of arbitration agreements have radically changed over time. What began as a means of resolving disputes between experienced labor and management negotiators was soon being applied to securities transactions, commercial goods, and even nursing home contracts. The nature of the process and the nature of the arbitrators have changed over time too, and not for the better. Professional arbitration services, some good and some bad, have proliferated. In many instances these services are established to serve a specific constituency, sometimes with draconian results.

For instance in November of 2009 the attorney general of the State of Minnesota, Lori Swanson, announced that she had a settled a suit with several consumer credit card issuers, including JP Morgan Chase. According to the suit some thirty credit card had met in secret and agreed to require all card holders to submit to binding arbitration. The issuers then used almost exclusively an arbitration service named the National Arbitration Forum. Not surprisingly, the use of a captive arbitration service led to highly skewed results, with the card issuers winning almost all of the disputes submitted by consumers. The suit and evidence also reflected that the National Arbitration Forum misled consumers about their ties to the credit card issuers. Unfortunately, this firm has been involved in disputes with similarly unfair arbitration agreements, including arbitration services which prohibit a consumer's attorney from participating in parts of the dispute resolution process and permit an arbitrator to disqualify an attorney who engages in "unnecessary advocacy" on behalf of the client.

Consequently, consumers have to consider the following when they locate an arbitration provision in a contract which they are signing:

1. Do I want to give my right to a jury trial if a dispute arises? If not, can I obtain this good or service from another merchant who will not require arbitration?

2. What service and rules govern the arbitration process to which I am agreeing? Will I be treated fairly in the process, or does the agreement require me to arbitrate in a forum which favors the merchant?

Although there are legal defenses to the enforceability of arbitration agreements, they tend to be very narrow and litigating to avoid the effects of the agreement can be expensive. Often times the existence of the agreement is discovered by the consumer only after the product or service has caused considerable injury or loss to the consumer. The smart consumer therefore consults with an attorney before signing such agreements. If however you are in a situation where an accident or loss has already occurred and the person who caused the injury or loss is telling you that your rights are limited by an arbitration agreement, call your trusted advocates at Burman, Critton, Luttier & Coleman.

Slip and Fall…New Legislation

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Slip and Fall…New Legislation

Burman, Critton, Luttier and Coleman LLP Blog

This year, the legislature will meet in Tallahassee to discuss whether new guidelines and/or notice requirements will be required in slip and fall cases, which will affect the liability of supermarkets and other department stores relative to their negligence for failing to correct or warn customers of potential dangers in Florida stores. 

For instance, assume you slip and fall and seriously injure yourself due to the negligence of the store and/or its personnel.   Today, the store must prove it was not responsible for leaving the hazard on the floor.  During this year’s session, the legislature will discuss a bill that will put the burden back on you (the patron) to prove that the store was aware of the hazard and failed to cure it.  Obviously, this new burden is overreaching because it forces you (the patron) who is visiting that store as an invitee to prove the store had “notice” of the hazard before recovering anything for your injuries.  Seem fair?

Obviously, plaintiff lawyers around the state believe this is extremely unfair for patrons.  Assume, for a moment, that a close family member slips and falls in a store, thereby breaking her arm and injuring her neck because store personnel failed to do their jobs.  Obviously, your family member is not thinking about speaking to patrons, or interviewing store personnel to determine how long the dangerous condition was on the floor before she slipped and fell or whether the store had “notice” of the condition.  Instead, the person is thinking about obtaining medical services to treat their injuries.  This new legislation, if adopted, could affect your personal injury case.

The law firm of Burman, Critton, Luttier & Coleman respects your rights and remains informed of all pending legislation.  Despite whether this bill passes or not, we will assist you with protecting your rights.

If you have been injured in an accident, your trusted advocates at Burman, Critton Luttier & Coleman will assist you in obtaining the maximum recovery to compensate you for the losses.  If you or someone you know has been injured in a traffic accident or a slip and fall, or because of someone else’s negligence, please contact us at             (561) 842-2820       to schedule a consultation with one of our attorneys.

Tire Safety 101

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Tire Safety 101

Law Firm of Burman, Critton, Luttier & Coleman

When one thinks of tire safety or tire blowouts, the Ford Explorer/Firestone debacle often comes to mind. You may recall that in 2001, Firestone recalled approximately 6.5 million tires and agreed to replace an additional 13 million tires that were not part of the recall.  The recall was prompted by a defect that caused the tires to be more susceptible to tread separations (i.e. a tire blowout).

But a defective tire is not the only cause of a blowout. The internal structure of a tire can be weakened by driving on under-inflated tires, by exceeding the load limit for the vehicle or because of impacts to the tire from pot holes or curbs. All of the foregoing can make your tires more susceptible to tread separations or blowouts. The National Highway Traffic Safety Administration issued the following Safety Checklist and Safety Tips:

Safety Checklist

  • Check tire pressure regularly (at least once a month), including the spare.
  • Inspect tires for uneven wear patterns on the tread, cracks, foreign objects, or other signs of wear or trauma. Remove bits of glass and other foreign objects wedged in the tread. 
  • Make sure your tire valves have valve caps. 
  • Check tire pressure before going on a long trip. 
  • Do not overload your vehicle. Check the tire information placard or owner's manual for the maximum recommended load for the vehicle. 
  • If you are towing a trailer, remember that some of the weight of the loaded trailer is transferred to the towing vehicle.

Safety Tips

  • Slow down if you have to go over a pothole or other object in the road.
  • Do not run over curbs, and try not to strike the curb when parking.

Additional information on tire safety and vehicle safety can be found at www.nhtsa.gov.

If you have been injured in an accident, your trust advocates at Burman, Critton, Luttier & Coleman will assist you in obtaining the maximum recovery to compensate you for your losses. If you or someone you know has been injured in a traffic accident, or because of someone else’s negligence, please contact us at             561-842-2820       to schedule a consultation with one of our attorneys.  

Anatomy of An Insurance Policy

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Anatomy of An Insurance Policy

Law Firm of Burman, Critton, Luttier & Coleman

When a person buys insurance coverage, seldom do they take the time to thoroughly review the language within the policy including the important "definition section."

Over the years, multiple lawsuits have been filed based upon discrepancies or misunderstandings between an insurance company and its insured. From a lay person's standpoint, policies of insurance seem to be quite complex, hard to follow, and filled with convoluted language.

Insurance Companies for the most part, try to extend coverage when deemed to be appropriate. Unfortunately, when an insurance company denies coverage, it is important for the insured to understand the separate parts of the insurance policy puzzle.

The following five definitions will help you to more easily navigate your insurance policy:

1. Insuring Agreement: The insuring agreement explains in detail the type of coverage provided by the insurance company to its insured. Insuring agreements can provide a wide range of coverage and may be quite broad or specific, depending on the policy. Upon purchasing and obtaining insurance coverage, for any reason, the insured should very closely review and scrutinize the insuring agreement to determine exactly what the policy insures.

2. Declaration: This portion of the policy contains the specific coverage information, the name of the insured, dates the policy will be in effect, specific coverages and the amounts charged for premiums by the carrier. Generally, this declaration also contains endorsements or addendums for coverages.

3. Conditions: Once the insured reviews and understands the declaration page, to confirm what coverage they have purchased, the insured should go through the policy, with a fine tooth comb to ensure that the policy covers all relevant occurrences and perils. Specific attention should be given to exclusions and "non-covered" perils, which is the portion of the policy the insurance company utilizes to deny coverage. Particularly there are very standard conditions within every insurance policy which include: a requirement of the insured to comply with their responsibilities, including timely filing of new claims, notification of lawsuits against them, and generally cooperating with the insurance company during a claims process. This portion of the policy also contains provisions which discuss how an insured may institute a lawsuit against the insurance company.

4. Definitions: All insurance contracts contain definitions throughout the policy. These definitions are critical in determining whether coverage will be provided or denied. It is very important to understand the words within the insurance policy and how they relate to any particular situation. Upon receiving the insurance policy, it is vital to understand these definitions. If an insured has any doubt as to the definitions or the interpretation of particular words, they should immediately consult with their insurance agent to confirm they have received their desired insurance protection.

5. Exclusions: In the body of an insurance contract there are always exclusions. These exclusions detail occurrences and perils not covered by the insurance company. It is very important for the insured to understand these exclusions, to make sure they do not find themselves in a situation where coverage will not be afforded, through no fault of their own.

These basic definitions are intended to allow you to better understand an insurance policy and why it is written in a particular fashion.

If you believe that your insurance company has not treated you in good faith, please immediately contact the lawyers at Burman, Critton, Luttier and Coleman. We are your trusted advocates in the state of Florida and can help you with all of your legal needs.

Please contact us at             (561) 842-2820      .

To Send or Not to Send – What Are Proper Office and Business E-mails, or Text Messaging?

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To Send or Not to Send – What Are Proper Office and Business E-mails, or Text Messaging?

Burman, Critton, Luttier and Coleman LLP Blog

By Rita Budnyk, Attorney, Of Counsel

Some of us have what we considered an office or work e-mail address and a home or personal e-mail address.  That's good.  Others may have an e-mail address only through their work or place of employment.  At times, that's not so good.  This blog will discuss why it is important to keep business and personal e-mails separate from each other, with some common sense exceptions.  This discussion is equally applicable to text messaging and tweeting.

Over the years, various legal actions have given me the pleasure (or displeasure) of having to review literally thousands of what were supposed to be inter-office, corporate e-mails.  I was amazed at the number of personal e-mails that were mixed with the business related e-mails.  For example, in one civil action dealing with complex accounting issues, not only were there the appropriate e-mails discussing various spread sheets, there were also e-mails setting up personal dates (some with persons other than a spouse), even discussing details as to what type of wine to bring.  Other inappropriate e-mails included pornographic pictures and jokes.  Most of us, I believe would have the common sense not to send such e-mails using his or her office/business e-mail address; and most of us would not send such an e-mail using his or her personal e-mail address.  A good rule is to "keep business purely business."  Don't use the office e-mail system to discuss what you did last night or what your plans for the weekends might be.  Don't become a "blogger," giving your personal opinion on any e-mail that crosses your screen.  Use common sense too – there is nothing wrong with sending an office e-mail letting everyone know there are donuts in the kitchen, but mentioning that Bob ate six chocolate donuts probably isn't necessary.

Communicating with technology can be risky, but it is also very necessary in today's business.  It is so easy to type and click on "send" without even thinking about what you may have just written.  In the course of litigation, such technological communications can easily be taken out of context or used to embarrass a witness or party. Ironically, this is my first blog ever written – and hopefully, I have followed my own rule of sticking to topic and keeping it purely business.

Working For the Old School Guys

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Working For the Old School Guys

Burman, Critton, Luttier and Coleman LLP Blog

By: Benny Lebedeker, Esq.

It seems like this is the time of the year when, on top of the usual holiday depression, my spirits are further dampened by reports of members of my profession acting like criminals with brief cases, and not professionals sworn to respect and uphold the law. Last year we were bombarded with press about "mortgaged backed securities"; – securities dreamed up by Wall Street lawyers; securities which had received triple A ratings but which ultimately proved to be worthless. This year it's the law firm of Rothstein, Rosenfeld & Adler and Scott Rothstein's Ponzi scheme. These stories leave the public with the impression that attorneys are flashy self-promoters who make outrageous amounts of money by using their knowledge of the law for nefarious ends, hurting the public along the way.

My father was an old school lawyer here in Palm Beach County for over twenty years. My father was never a wealthy man and we lived very modestly. Yet to my knowledge my father never took a dime he did not earn, never advertised for cases, and avoided the publicity which other lawyers sought with such ferocity.  When I passed the bar exam, my father explained to me that being a lawyer was like being a superhero – you should always use your powers for good, and never use your powers for evil. Here are some other things that I learned from my father and other "old school lawyers" I've been fortunate enough to work for:

  1. Never be arrogant or disrespectful to witnesses or litigants. Juries hate arrogant lawyers and witnesses won't cooperate with a disrespectful attorney.
  2.  90% of the clients who come to you, hire you because they need help with a legal problem. These clients aren't interested in multi-million dollar verdicts, wrecking vengeance on the opposing party, or seeing your name in the paper discussing their cases. They just want their problem solved and at a reasonable price. 10% of clients who come to you do expect multi-million dollar verdicts, want to wreck vengeance on the opposing party, and can't wait to see their cases discussed in the press. Avoid that 10% like the plague.
  3. The legal system in this country is adversarial and you have to fight like hell for every client you represent, and there is no such thing as a small case. Every client's case is important to the client, no matter how much is at stake.

Many of the "old school" lawyers who provided me with this insight have moved on, and there are fewer and fewer of them around. However my firm does not advertise, we work hard for our clients, and we succeed without being arrogant, self-promoting, or sneaky. I get to go home at night with my self-respect intact, and tell my kids that I help people for a living. There's no school like the old school.

1-year-old Drowns in Apartment Complex Retention Pond

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1-year-old Drowns in Apartment Complex Retention Pond

Burman, Critton, Luttier and Coleman LLP Blog

Recently, a child tragically drowned in a retention pond behind an apartment complex in Jacksonville, Florida. In South Florida, there are literally hundreds of similar bodies of water. In fact, many of you live near these retention ponds. Last year, a similar incident occurred in Wellington, Florida when a child wandered away from home and drowned in a nearby body of water that was not protected by a fence or gate.

Did you know that Florida law requires swimming pool owners to have a fence or barrier around the pool in order to protect others – most importantly children? Florida Statute Section 515.29 requires the barrier around a pool to be at least 4 feet high.

Interestingly, Florida has never enacted a similar law requiring a barrier around retention ponds, or other unprotected bodies of water. The unprotected bodies of water result in numerous injuries and deaths to our children every year. Nevertheless, the law will impose a duty on a landowner to protect a body of water. Each injury or death is evaluated on a case-by-case basis. The relevant factors include, but are not limited to:

  • whether children are known to frequent the area;
  • whether there have been similar occurrences involving injury or a death in the past;
  • whether the body of water qualifies as an "Attractive Nuisance" under Florida law; and
  • whether the owner of the complex has knowledge that children frequent the area.

When a family loses a child as a result of drowning, the family needs an experienced law firm to handle this very unique type case. Most of the time, the family will face a large insurance company that will attempt to bully the victims.

At Burman, Critton, Luttier & Coleman, we will assist to maximize a recovery and protect your rights. Your trusted advocates at Burman, Critton, Luttier & Coleman are highly experienced courtroom attorneys who have handled claims identical to the ones outlined above. If you or someone you know has been injured as a result of someone else';s negligent act, please contact us at             561-842-2820       to schedule an appointment to meet with one of our attorneys.

Are television advertisements an indication of consumer behavior?

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Are television advertisements an indication of consumer behavior?

Law Firm of Burman, Critton, Luttier & Coleman

If television advertisements are any indication of consumer behavior, most people are not concerned with getting the best coverage; they are looking to save money on their car insurance. Did you know that the Insurance Research Council found that approximately 23% of drivers in Florida have no insurance? Florida ranks fifth in the country when it comes to the percentage of uninsured drivers. Thus, if you are involved in a car accident, there is roughly a one-in-four chance the other driver has absolutely no insurance. Even if the other driver is insured, he or she is not required to carry bodily injury coverage, that is, coverage to pay for any injuries you sustain as a result of his/her negligence.

So what can you do to protect yourself? The answer is simple: purchase uninsured motorist coverage, commonly known as "UM coverage." Below are two scenarios to illustrate how UM coverage works.

Scenario 1: You have an insurance policy with $10,000 in bodily injury coverage, no UM coverage and $10,000 in PIP (personal injury protection) coverage. You are t-boned by an uninsured driver who ran a red light and you sustain permanent injuries. Your injuries cause you to miss work and lose wages. Under this scenario, you only have $10,000 in PIP coverage to cover your medical expenses and lost wages. If the injuries are severe, the $10,000 can be exhausted in days.

Scenario 2: Same accident as described in Scenario 1, yet this time you have an insurance policy with $100,000 in bodily injury coverage, $100,000 in UM coverage and $10,000 in PIP coverage. Under this scenario, you have $110,000 ($100,000 uninsured motorist and $10,000 PIP) to cover your medical expenses and lost wages.

As you can see, UM coverage can greatly benefit you if you are involved in an accident with an uninsured or under-insured driver. Your trusted advocates at Burman, Critton, Luttier & Coleman are highly experienced personal injury attorneys who will fight to get you what you deserve from the insurance companies. If you or someone you know has been injured, please contact us at             561-842-2820       to schedule an appointment to meet with one of our professionals.