Scott and Fenderson Law Blog

The Law Explained

Go HERE for some great and extertaining explanations of legal concepts like contingency fees and other questions about the law you may have.

Who's Who in America

Kathryn Fenderson Scott has been named in Marquis' Who's Who in America - 63rd Edition for 2009. 

Old Lawyers don't retire, they just lose their

Appeal, Briefs, Judgment, or you fill in the blank.

We're not planning on retiring for a long, long time.  In fact, we just attended a seminar with Atticus on how to build our practice - so after 11 years, we still consider ourselves to be a growing firm.  If you are lawyer who is thinking of retiring, go sign up for this seminar with Atticus's Mark Powers.  (And if you are a retiring lawyer in St. Pete and want to phase yourself out or sell your client base or rent some space in a great law office on Central Avenue, let us know).  Here is the seminar information: 

Dates:           Friday and Saturday, June 6 & 7, 2008

Times:           Friday:        8:30 AM - 6:00 PM
                      Saturday:     8:30 AM - 12:30 PM

Location:      Orlando, Florida

Costs:           $1,495, second partner $995

Guarantee:   100% money-back within 30 days of attending the program if you are not satisfied.

If you are a solo practitioner or a shareholder in a law firm and want to make a great exit, then register for the Atticus Exit Strategies Workshop: For Solos & Small Firm Practitioners. Click here to register now. Not sure if this is the time to act? Call Lauren House at 1-888-644-0022 or 352-383-0490 to determine if this seminar is right for you.

Teamwork & My Staff's Email Addresses

Celebrating the power of a team and a dream:  "No leader ever won a battle single-handed.  No company ever produced a first-class product without first-class people and providers.  Amercian astronauts may have walked solo on the moon, but 220 milllion American citizens flew them there." This is the intro by Dan Zadra to a book I love which is titled "Together We Can."  He goes on to say "The truth is, our world has become too fast and complicated for any one person to know everything or do everything. ... The role of today's leader is to help create a shared vision, and to establish an atmosphere of trust, freedom and mutual respect."  Here's the author's favorite two quotes:  "Ask your team - they know the answer." and "Hire the best.  Pay them fairly.  Communicate frequently.  Provide meaningful challenges and rewards.  Believe in them.  Trust them.  Get out of their way - they'll knock your socks off." 

I have always given and continue to give personal attention to each of my cases and  I keep my case number at a level where I know what is going on with each and every one of m y cases.  Yet, I have found, over the years, that even so, I can't do it alone and that I need help.  I need an excellent staff.  Luckily, I've got a one and I like them and trust them and I know that they can knock your socks off!  Here they are:  Kimberly, Lindsey, Kelly, and Julie:

My legal assistant Kimberly has been with me for four years now.  She started as a receptionist and has been promoted from within because of her excellent performance.  Her role here is much like that of an emergency room nurse in the hospital.  She knows whats going on with all of the cases and what needs to be done right away.  She knows how to get things done quickly and correctly.  She also manages our other staff Julie and Lindsey.  Kim knows the law but is not able to give legal advice; she is the best person, however, to answer day to day questions about medical records, medical bills, health insurance or Medicare and Medicaid liens, and property damage claims.  Kim's email address is kimatscottandfenderson@gmail.com.

Kelly also assists me in the personal injury cases.  Kelly is a graduate of Stetson Law School and she is awaiting her bar exam results.  Kelly is also an excellent resource for clients but is also not able to give legal advice (yet).  You can contact Kelly at kellyatscottandfenderson@gmail.com.

I love my staff and I couldn't do my job without them, I am so thankful for my team.  I hope that you will find my staff to be friendly and knowledgable and that they give you an excellent level of service.  Please feel free to email me personally at fenderlaw@aol.com with any comments you may have about my staff, I love hearing from you and I want to ensure that we continue in our dedication to excellence. 

UM Coverage in Florida

I recommend buying UM (uninsured or underinsured motorist coverage).  The following is the statute but if you'd like to know why it is so important - just call me, Kathryn Fenderson Scott, at 727-321-0099 or email me at fenderlaw@aol.com and I'll be happy to explain all of this to you:

 

627.727  Motor vehicle insurance; uninsured and underinsured vehicle coverage; insolvent insurer protection.--

(1)  No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section is not applicable when, or to the extent that, an insured named in the policy makes a written rejection of the coverage on behalf of all insureds under the policy. When a motor vehicle is leased for a period of 1 year or longer and the lessor of such vehicle, by the terms of the lease contract, provides liability coverage on the leased vehicle, the lessee of such vehicle shall have the sole privilege to reject uninsured motorist coverage or to select lower limits than the bodily injury liability limits, regardless of whether the lessor is qualified as a self-insurer pursuant to s. 324.171. Unless an insured, or lessee having the privilege of rejecting uninsured motorist coverage, requests such coverage or requests higher uninsured motorist limits in writing, the coverage or such higher uninsured motorist limits need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces an existing policy with the same bodily injury liability limits when an insured or lessee had rejected the coverage. When an insured or lessee has initially selected limits of uninsured motorist coverage lower than her or his bodily injury liability limits, higher limits of uninsured motorist coverage need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces an existing policy with the same bodily injury liability limits unless an insured requests higher uninsured motorist coverage in writing. The rejection or selection of lower limits shall be made on a form approved by the office. The form shall fully advise the applicant of the nature of the coverage and shall state that the coverage is equal to bodily injury liability limits unless lower limits are requested or the coverage is rejected. The heading of the form shall be in 12-point bold type and shall state: "You are electing not to purchase certain valuable coverage which protects you and your family or you are purchasing uninsured motorist limits less than your bodily injury liability limits when you sign this form. Please read carefully." If this form is signed by a named insured, it will be conclusively presumed that there was an informed, knowing rejection of coverage or election of lower limits on behalf of all insureds. The insurer shall notify the named insured at least annually of her or his options as to the coverage required by this section. Such notice shall be part of, and attached to, the notice of premium, shall provide for a means to allow the insured to request such coverage, and shall be given in a manner approved by the office. Receipt of this notice does not constitute an affirmative waiver of the insured's right to uninsured motorist coverage where the insured has not signed a selection or rejection form. The coverage described under this section shall be over and above, but shall not duplicate, the benefits available to an insured under any workers' compensation law, personal injury protection benefits, disability benefits law, or similar law; under any automobile medical expense coverage; under any motor vehicle liability insurance coverage; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident; and such coverage shall cover the difference, if any, between the sum of such benefits and the damages sustained, up to the maximum amount of such coverage provided under this section. The amount of coverage available under this section shall not be reduced by a setoff against any coverage, including liability insurance. Such coverage shall not inure directly or indirectly to the benefit of any workers' compensation or disability benefits carrier or any person or organization qualifying as a self-insurer under any workers' compensation or disability benefits law or similar law.

(2)  The limits of uninsured motorist coverage shall be not less than the limits of bodily injury liability insurance purchased by the named insured, or such lower limit complying with the rating plan of the company as may be selected by the named insured. The limits set forth in this subsection, and the provisions of subsection (1) which require uninsured motorist coverage to be provided in every motor vehicle policy delivered or issued for delivery in this state, do not apply to any policy which does not provide primary liability insurance that includes coverage for liabilities arising from the maintenance, operation, or use of a specifically insured motor vehicle. However, an insurer issuing such a policy shall make available as a part of the application for such policy, and at the written request of an insured, limits up to the bodily injury liability limits contained in such policy or $1 million, whichever is less.

(3)  For the purpose of this coverage, the term "uninsured motor vehicle" shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:

(a)  Is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency;

(b)  Has provided limits of bodily injury liability for its insured which are less than the total damages sustained by the person legally entitled to recover damages; or

(c)  Excludes liability coverage to a nonfamily member whose operation of an insured vehicle results in injuries to the named insured or to a relative of the named insured who is a member of the named insured's household.

(4)  An insurer's insolvency protection shall be applicable only to accidents occurring during a policy period in which its insured's uninsured motorist coverage is in effect when the liability insurer of the tortfeasor becomes insolvent within 4 years after such an accident. Nothing herein contained shall be construed to prevent any insurer from affording insolvency protection under terms and conditions more favorable to its insureds than is provided hereunder.

(5)  Any person having a claim against an insolvent insurer as defined in s. 631.54(6) under the provisions of this section shall present such claim for payment to the Florida Insurance Guaranty Association only. In the event of a payment to any person in settlement of a claim arising under the provisions of this section, the association is not subrogated or entitled to any recovery against the claimant's insurer. The association, however, has the rights of recovery as set forth in chapter 631 in the proceeds recoverable from the assets of the insolvent insurer.

(6)(a)  If an injured person or, in the case of death, the personal representative agrees to settle a claim with a liability insurer and its insured, and such settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an underinsured motorist claim, then written notice of the proposed settlement must be submitted by certified or registered mail to all underinsured motorist insurers that provide coverage. The underinsured motorist insurer then has a period of 30 days after receipt thereof to consider authorization of the settlement or retention of subrogation rights. If an underinsured motorist insurer authorizes settlement or fails to respond as required by paragraph (b) to the settlement request within the 30-day period, the injured party may proceed to execute a full release in favor of the underinsured motorist's liability insurer and its insured and finalize the proposed settlement without prejudice to any underinsured motorist claim.

(b)  If an underinsured motorist insurer chooses to preserve its subrogation rights by refusing permission to settle, the underinsured motorist insurer must, within 30 days after receipt of the notice of the proposed settlement, pay to the injured party the amount of the written offer from the underinsured motorist's liability insurer. Thereafter, upon final resolution of the underinsured motorist claim, the underinsured motorist insurer is entitled to seek subrogation against the underinsured motorist and the liability insurer for the amounts paid to the injured party.

(c)  The underinsured motorist insurer is entitled to a credit against total damages in the amount of the limits of the underinsured motorist's liability policy in all cases to which this subsection applies, even if the settlement with the underinsured motorist under paragraph (a) or the payment by the underinsured motorist insurer under paragraph (b) is for less than the underinsured motorist's full liability policy limits. The term "total damages" as used in this section means the full amount of damages determined to have been sustained by the injured party, regardless of the amount of underinsured motorist coverage. Nothing in this subsection, including any payment or credit under this subsection, reduces or affects the total amount of underinsured motorist coverage available to the injured party.

(7)  The legal liability of an uninsured motorist coverage insurer does not include damages in tort for pain, suffering, mental anguish, and inconvenience unless the injury or disease is described in one or more of paragraphs (a)-(d) of s. 627.737(2).

(8)  The provisions of s. 627.428 do not apply to any action brought pursuant to this section against the uninsured motorist insurer unless there is a dispute over whether the policy provides coverage for an uninsured motorist proven to be liable for the accident.

(9)  Insurers may offer policies of uninsured motorist coverage containing policy provisions, in language approved by the office, establishing that if the insured accepts this offer:

(a)  The coverage provided as to two or more motor vehicles shall not be added together to determine the limit of insurance coverage available to an injured person for any one accident, except as provided in paragraph (c).

(b)  If at the time of the accident the injured person is occupying a motor vehicle, the uninsured motorist coverage available to her or him is the coverage available as to that motor vehicle.

(c)  If the injured person is occupying a motor vehicle which is not owned by her or him or by a family member residing with her or him, the injured person is entitled to the highest limits of uninsured motorist coverage afforded for any one vehicle as to which she or he is a named insured or insured family member. Such coverage shall be excess over the coverage on the vehicle the injured person is occupying.

(d)  The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.

(e)  If, at the time of the accident the injured person is not occupying a motor vehicle, she or he is entitled to select any one limit of uninsured motorist coverage for any one vehicle afforded by a policy under which she or he is insured as a named insured or as an insured resident of the named insured's household.

In connection with the offer authorized by this subsection, insurers shall inform the named insured, applicant, or lessee, on a form approved by the office, of the limitations imposed under this subsection and that such coverage is an alternative to coverage without such limitations. If this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations. When the named insured, applicant, or lessee has initially accepted such limitations, such acceptance shall apply to any policy which renews, extends, changes, supersedes, or replaces an existing policy unless the named insured requests deletion of such limitations and pays the appropriate premium for such coverage. Any insurer who provides coverage which includes the limitations provided in this subsection shall file revised premium rates with the office for such uninsured motorist coverage to take effect prior to initially providing such coverage. The revised rates shall reflect the anticipated reduction in loss costs attributable to such limitations but shall in any event reflect a reduction in the uninsured motorist coverage premium of at least 20 percent for policies with such limitations. Such filing shall not increase the rates for coverage which does not contain the limitations authorized by this subsection, and such rates shall remain in effect until the insurer demonstrates the need for a change in uninsured motorist rates pursuant to s. 627.0651.

(10)  The damages recoverable from an uninsured motorist carrier in an action brought under s. 624.155 shall include the total amount of the claimant's damages, including the amount in excess of the policy limits, any interest on unpaid benefits, reasonable attorney's fees and costs, and any damages caused by a violation of a law of this state. The total amount of the claimant's damages is recoverable whether caused by an insurer or by a third-party tortfeasor.

The Bruce Murakami Story

Founder of Safe Teen Driver:  Bruce Murakami’s Story

On November 16, 1998, I lost my beautiful wife, Cindy, and precious daughter, Chelsea, in a horrific car crash. The crash occurred when my wife pulled out of a grocery store parking lot in Tampa and was broadsided by a teenager who was street racing down a major city road.

As I was leaving our home, I noticed the smoke from the wreck billowing above the houses in my neighborhood, so I decided to drive by and see what had happened. Actually, something inside pulled me there. When I came upon the crash and realized it was my family trapped inside the van, I was devastated. I literally blacked out, and when I came to, I was numb. For months after that, I went the through the motions of each day in a zombie-like state not caring much about life.

However, there was one thing I did care about, and that was clearing Cindy’s name and bringing justice to the person who had killed her and Chelsea. Later, I learned that the driver who had caused the crash was a 19-year-old named Justin Cabezas.

For many agonizing months, I dealt with all the legal issues of the crash and with the excruciating pain of the loss of my family. During that time, I read voraciously and sought counsel with my pastor. I wanted to know what I could do to move on. Finally, I realized that the only way I could really move on was to forgive Justin.

Once the idea of forgiveness flowed into my mind and heart, I started thinking how I could turn something so negative into something positive. Then, this seemingly crazy idea came into my head—an idea so crazy that I couldn’t even believe it at first. I started thinking about what might happen if Justin and I talked to teenagers together about driving and responsibility. I started thinking that maybe we could we teach them about responsibility behind the wheel of a car and in life.

So, in an emotional and painful meeting, I talked with Justin. It was just the two of us face-to-face for the first time. And when Justin apologized, I realized he was in as much pain as I was, and I knew my idea wasn’t so crazy. So Safe Teen Driver was born.

Safe Teen Driver Links

HELPING OUR TEENS DRIVE SAFELY

Link for National Safety Council Safe Teen Drivers

http://www.nsc.org/issues/teendriving/

Link for Bruce Murakami's - Safe Teen Drivers Organization

http://www.safeteendriver.org/aboutus.htm

Safe Teen Driver

Florida DUI Facts and Information:

DUI Facts and Information:

The discussion presented on this page is informational only, and does not constitute legal advice. Only a qualified attorney can advise you on the law, and this page is not intended to replace the advice of an attorney. Laws vary from state to state, this general information may not apply in every state.

I. Criminally Charged: DUI is a criminal offense and not simply a traffic ticket. Criminal charges will stay on your record for life, unlike traffic tickets which may drop off your record after several years. Therefore you should seek immediate representation by a qualified DUI defense lawyer.

II. Definition of DUI, DWI, or Drunk Driving In most states DUI, DWI, or Drunk Driving is defined as follows:

1. Operating or in actual physical control of a motor vehicle, and
2. Having consumed alcohol or controlled substances, and
3. Your normal faculties are impaired, or
4. Your blood alcohol level is above .08

Note ? laws will vary from state to state and the above definition may not apply in every state. Operating or in actual physical control normally means either driving the vehicle or being behind the wheel with the keys to an operable vehicle, whether of not the motor is running. Normal faculties are your ability to walk, talk, and perform daily activities of life.

III. Implied Consent Many states have implied consent laws which require drivers to submit to sobriety tests. Implied consent laws normally dictate that by driving on the roads within that state, you are consenting to a blood, breath, or urine test to determine alcohol content or the presence of controlled substances. Refusal of such tests usually results in a suspension of your license for up to eighteen months or longer, and in some states a refusal is itself a separate criminal offense.

IV. Administrative Suspension If you refuse a blood, breath, or urine test upon request by law enforcement, your license may be suspended under the implied consent law. In many states you may request a formal or informal hearing before the DMV (division of motor vehicles) to contest the suspension. Failure to act in a timely manner may result in loss of your right to this hearing, and loss of your license. Many states require that you request an administrative review hearing within ten days, therefore it is essential that you contact a DUI Defense Lawyer quickly.

V. Court Proceedings You will have to appear in court to answer to the charges of DUI, DWI, or Drunk Driving. Normally your first appearance is at the time of your arrest, and is called an advisory hearing. You may have bonded out prior to your advisory hearing. The second court appearance is normally called an arraignment, where you must enter a plea of guilty or not guilty. Following the arraignment there may be several pretrial hearings, or dispositional hearings, and finally a trial date. You should have a competent DUI Defense Lawyer with you for each of these court dates.

VI. Evidence in a DUI, DWI, or Drunk Driving Case The evidence in a DUI, DWI, or Drunk Driving Case consists of more than the DUI traffic citation you may have been given. There is normally a lengthy narrative written by law enforcement, a video tape of field sobriety tests, breath test results, certification of the breath testing equipment, supplemental reports by other officers at the scene, accident reports, and other documentation. This evidence should be obtained and reviewed by a competent DUI, DWI, or Drunk Driving defense lawyer for possible weaknesses in the state?s case against you, and possible defenses you could raise. A defense lawyer will file a demand for discovery to obtain copies of the evidence from the state attorneys office and review the evidence prior to your court dates.

VII. Business License and Hardship license The charge of DUI, DWI, or Drunk Driving will normally result in suspension of your drivers license. Some states allow you to obtain a restricted license for business purposes, or to drive for necessary purposes such as to the grocery store. There is normally an application process which may require that you show proof of completing a DUI driving school, or other requirements.

VIII. Driving without a license In most states driving on a suspended or revoked license (DWLSR) is a criminal offense, and will result in your being arrested. Anyone charged with DUI, DWI, or Drunk Driving should NOT drive unless you have obtained a business license, hardship license, or other permit. Some states may not offer a business or hardship license, and some states only allow such a permit on a first offense. Someone charged for the second time may not be able to obtain a permit. The offense of driving on a suspended or revoked license is not a traffic citation, rather it is a criminal charge which can carry substantial penalties.

IX. Options to Resolve a DUI, DWI, or Drunk Driving Charge.

You have the option of pleading guilty or no contest to the charge, or maintaining your innocence and proceeding to trial. At trial, the State Attorney has the burden of proving the elements of the charge. If you choose to plead guilty or no contest, you should retain an attorney to negotiate the best possible sentence for you.

Sometimes it may be possible to have the charges reduced to reckless driving depending upon the laws in your state. The decision to reduce charges is normally up the State Attorney (prosecutor) and will require that your attorney present valid reasons why the charge should be reduced.

If you choose to take the case to trial, you should retain a qualified DUI Defense Lawyer to prepare your defense and present your case.

Florida Family Law Financial Affidavits

Florida Family Law Financial Affidavits

PREPARATION OF THE FINANCIAL AFFIDAVIT

The financial affidavit prepared in connection with a dissolution of marriage case often presents difficult questions. Since the Court will rely heavily on the affidavit in awarding child support, alimony and other monetary relief, careful attention must be devoted to it. It must be signed under oath, which means the penalties for perjury will lie for any knowing false statement.

All of the figures set out in your affidavit should be based on reliable data. In order to convince the Court and opposing counsel of your income, assets, liabilities, expenses and needs, we will have to point to an established financial history to the extent possible. Cancelled checks and receipts present the best evident of past expenses. Thus, during the pendency of the case you should accumulate as many receipt as possible in the interest of presenting a more detailed financial affidavit.

This initial financial affidavit is used primarily for determining temporary alimony, child support, and attorney fees early in the case. This financial affidavit should reflect income and deductions as they are at present. Well before trial, another financial affidavit will be prepared reflecting the increased income taxes expected to be paid by a single person. This affidavit will address questions of income necessary to define permanent relief.

In order to arrive at income figures, look to pay stubs, tax returns, and other records for accurate information. If pay varies by season or for some other reason, determine the gross income for the past six months or year to reach a monthly average. Deductions should be averaged as well.

The affidavit seeks information on a monthly basis. Each month contains 4.3 weeks. Some bills, such as credit cards, usually are paid on a monthly basis and present no problem. Others, life food, are paid on a weekly or occasional basis. Care should be taken to multiply all weekly expenses by 4.3 in order to arrive at a monthly total.

Doubling of expenses must be avoided. For example, if clothes are purchased with a credit card, the same amounts should not be reflected under "affiant's clothing". In that case, the amount set out for your clothing should be nothing if all of those expenses are also incurred under payments to creditors.

Assets and liabilities give rise to somewhat different questions. To some extent, the affidavit requires a determination of which party is entitled to assets or liable for debts. Generally speaking, Florida Law provides that marital assets and liabilities consist of those acquired during the marriage, regardless of whether the asset or liability is titled in one party's name only. For example, a car acquired during the term of the marriage and titled in the name of the husband is a joint asset and, if some amount is owed on it, a joint liability as well. Thus, the affidavit should reflect the fair market value of the car divided equally between husband and wife while any debt  owned on it should be allocated the same way.

Please note any asset or liability which was acquired before the marriage or under circumstances which suggest to your that it is not joint. We should discuss these assets and liabilities in detail to insure that the financial affidavit correctly reflects our legal position.

Please complete a rough draft of the affidavit in pencil. Take as much time as necessary to complete an accurate and detailed financial affidavit. Discuss it with your CPA. This is very important document in your divorce. We must be accurate and complete in its preparation. If you have any questions we can discuss them before the affidavit is prepared in its final form.