One the of things I have learned over my years as a prosecutor and a criminal defense attorney is that good people often find themselves on the wrong side of the law. Sometimes out of desperation, sometimes out of a momentary lapse in judgment.

A prime example is the case of Captain Scott Sciple, USMC. Capt. Sciple served four tours of duty in Iraq and Afghanistan, earning three Purple Hearts and a Bronze Star. While back in the states recovering from an injury – and awaiting to return for a fifth tour – Capt. Sciple suffered a massive lapse in judgment which led to the death of Pedro Rivera.

Capt. Sciple has been formally charged with DUI Manslaughter in the death of Mr. Rivera. According to a report by the St. Petersburg Times, Capt. Sciple drove his car the wrong way on I-275 and caused a head-on crash with Rivera’s car. Blood tests taken by law enforcement showed a blood alcohol level of .255 – more than three times the legal limit of .08.

While Capt. Sciple has served his country admirably, and most likely had no intention of harming anyone that morning, his actions have led to a horrific and tragic result.

Labels: Accident, blood alcohol, car, DUI, law enforcement, Manslaughter

John Hemenway on August 16, 2010 in Business Law | Comments Off

A recent Florida Supreme Court ruling in the case Olmstead v. Federal Trade Commission, SC08-1009 (Fla. June 24, 2010), has significantly changed the asset protection afforded to single member limited liability companies under Florida law.  Previously, a judgment creditor was limited by Fla. Stat. 608.433(4), which provided that a judgment creditor may charge the LLC membership interest of the debtor, but that the creditor would have only the rights of an assignee.  Essentially, the creditor would be entitled to receive distributions but not participate in management.  As the creditor could not compel a distribution, the debtor controlling a single member LLC could engage the creditor in a waiting game, particularly where non-liquid, long term assets were held by the LLC.  For this reason, LLCs have been used as asset protection vehicles.  Olmstead, however, now provides that, with respect to a single member LLC, a judgment creditor may levy on a membership interest under the general execution statute (Fla. Stat. 56.061) and obtain full title to the interest, including the full rights of membership.

The Court’s reasoning, and a lengthy dissent, are set forth in the 46-page opinion.  In short, the majority reasoned that Fla. Stat. 608.433(4) did not provide for an exclusive remedy preventing execution under Fla. Stat. 56.061.  This is contrary to the popular view among commentators and academics that the charging order is intended to be the sole remedy in the context of LLCs, just as it is in the body of partnership law which has influenced the LLC statutes.  It should be noted that Olmstead is not the first case where a court reached beyond the economic interest; a prior decision in the bankruptcy context similarly resulted in the creditor obtaining governance rights despite the applicable state statute (In re Albright, 291 B.R. 538 (D. Colo. 2003)).  It is also important to understand that Olmstead on its face applies only to single member LLCs, although, as pointed out by the dissenting Justices, it could arguably apply to multi-member LLCs.

From a legal perspective, Olmstead stands to influence rulings in other states, and is certain to be a topic of discussion during the future drafting meetings of the Florida Bar Business Law Section’s LLC Drafting Task Force, which has been preparing proposed revisions to Florida’s LLC statutes.  As a practical matter, if Olmstead is to be undone it will be by amendment to the LLC statutes.

For businesses operating as a single member LLC, Olmstead may not necessitate a change in structure.  Often the business assets will be subject to liens in favor of trade creditors or business lenders, leaving minimal unencumbered assets, and Olmstead does not broaden the ability of a creditor to “pierce the veil” and reach the individual assets of an LLC member.  However, for those utilizing a single member LLC with the goal of protecting assets placed into the LLC, that strategy must now be re-evaluated.  Contact a Florida business law attorney if you have questions about the impact of Olmstead to your LLC.

Under Florida Law every owner or registrant of a motor vehicle is required to have automobile insurance.  There are many different types of coverage options for Florida drivers and few people really understand the insurance coverage that they are paying for.

The first major type of coverage is liability.  Liability insurance protects you in the event that you cause an accident and are at fault.  There are two types of liability coverage, bodily injury (BI) and property damage.  BI covers the personal injuries to the other driver and/or passengers in their car.  Your BI does not cover your injuries.  BI covers claims against you for medical bills, lost wages, and even pain and suffering.  And just as the name suggests, property damage covers damage to another persons property.

The second major type of coverage is personal injury protection or PIP. PIP insurance is required in the State of Florida and covers you for personal injuries you may suffer in a car accident.  PIP insurance will cover your medical bills up to $10,000 no matter who was at fault for the accident.

The third major type of coverage is known as uninsured/underinsured or UM.  Although auto insurance is required by law, let’s face it, not everyone follows the law.  Sometimes the person who causes an accident does not have insurance or their policy limits are too low to cover the medical bills and damages caused by the accident.  If that happens, your UM coverage will kick in and and cover your damages.  However, UM coverage is not mandatory so not everyone carries UM.

There are several other types of insurance coverage available to Florida drivers.  Do you know what kind of coverage and limits you have?  If you have questions about your policy, we would be happy to review your policy and explain your coverages and limits.  This is a service we provide for free!  Call us today to schedule an appointment to get a complete and full understanding of your car insurance policy.

Since January 1, 2008, insurance companies providing personal injury protection benefits (PIP) have been able to utilize a permission fee schedule to reduce payments to medical providers. The fee schedule is largely based on 200% of the Medicare Part B Participating Physicians Fee Schedule.

The Medicare Fee Schedule is typically updated at least annually. This year, however, there were several anomalies that affected both insurers and medical providers. The fee schedule was not updated in January of 2010. Instead, a retroactive update was issued in May, and applied to all services provided from January 1, 2010 to May 31, 2010. Another retroactive update was passed in June, effective for dates of service June 1, 2010 through November 31, 2010.

This created payment problems for the PIP insurers who based reimbursement on Medicare. Most did not update their payment files quickly, and refused to reprocess prior claims. As a result, many medical providers have not been paid the proper amount on PIP claims. While the individual amounts may be small, they do add up over the course of a claim – and certainly with numerous claims. Medical providers are encouraged to review their PIP payments to ensure that their services were properly compensated.

http://www.thelawlerfirm.com

Labels: Claims, Compensation, Fee Schedules, FLORIDA, Medicare, PIP

Motorists across North America may have noticed an increased number of law enforcement officers on the roadways during the week-long Operation Safe Driver campaign that took place October 17 through 23. The campaign targeted drivers of both commercial and passenger vehicles in an effort to draw awareness to dangerous driving habits, like car drivers speeding around big rigs and causing truck accidents, and to issue citations when necessary.

This year’s campaign was the fourth annual Operation Safe Driver, founded by the Commercial Vehicle Safety Alliance and the Federal Motor Carrier Safety Administration. The safety campaign was created to address the dangerous driving behaviors that occur in or around commercial vehicles. The campaign also hopes to initiate educational and enforcement strategies for dealing with the dangerous behaviors on the road.

“Everyone who gets behind the wheel of a car or truck must commit, unfailingly, to do two things: always obey the traffic laws, and never allow yourself to become distracted,” explained FMCSA Administrator Anne S. Ferro.

Over 5,000 officers participated at 1,971 locations across the U.S. and Canada. Almost 53,000 drivers were pulled over throughout the week. The three most commonly issued citations were for speeding, failure to obey traffic devices and failure to wear a seat belt.

21,555 drivers of commercial motor vehicles were pulled over and 8,724 citations were issued. Speeding accounted for 13.7 percent of the citations, 4.6 percent were for failing to obey traffic devices and 10 percent were for failing to wear a seat belt.

12,926 drivers of passenger vehicles were pulled over and 7,700 citations were issued. Speeding accounted for 51.6 percent of the citations, 1.5 percent were for failing to obey traffic devices and 8 percent were for failing to wear a seat belt.

Also as a result of Operation Safe Driver, 64 commercial trucking and motor carrier companies were targeted for compliance reviews. The targeted companies were those who statistically employ the “worst of the worst” in commercial drivers. The compliance reviews resulted in 53 companies receiving a safety rating and 13 of those ratings being a Conditional Safety Rating.

Source: CVSA: 4-wheelers speeding at alarming rates around big rigs

Posted  under News and Press.
Tags: brandon bankruptcy attorney, brandon bankruptcy attorneys, brandon bankruptcy lawyer, brandon bankruptcy lawyers, tampa bankruptcy attorney, tampa bankruptcy attorneys, tampa bankruptcy lawyer, tampa bankruptcy lawyers

John Hemenway on  Real Estate Law