Irma? We’re not done with Matthew!

Hurricane Irma is now a Cat 5 Hurricane. Meanwhile, nearly a year later, we are still intaking Hurricane Matthew claims from insureds who held out hope that their insurance company would do right by them. My recommendation is and will always be to have representation immediately. There is no reason why an insured should go unrepresented in the claims process. Look at it this way, the insurance company has its team of adjusters and engineers. Why should an insured not be on the same level playing field as the insurance company? In my experience, I have never handled a claim where the insurance company found all the covered damage and immediately paid an appropriate amount to restore a property to its pre-loss condition. After a claim, an insured should immediately seek legal representation to properly preserve and prepare the claim, which includes proper documentation (including differentiating conditions which existed pre v. post loss), analysis (including expert retention) and valuation (utilizing qualified experts) of the loss.

Contact us today if you have any questions.

Mismatched Shingles & Roof Tiles, Granular Loss and Blue Tarps…

My wife and I took a drive up A1A to one of our favorite places, St. Augustine. The drive along the coast is a great way to wind down after a long work week. While this is a regular excursion for us, we had not been to St. Augustine since Hurricane Matthew until recently. During the drive, I could not stop pointing out all the mismatched shingles & roof tiles, granular loss and blue tarps.

Understandably, my wife wanted me to turn off “work mode”. That was the point of the drive, right? However, I could not help to wonder how many homeowners were taken advantage of not knowing that a policyholder may be entitled, under Florida law, to matching shingle/tile replacement. In many instances, in the event a matching replacement cannot be located, the insurance company must pay for entire roof replacement per Florida law. What is meant by granular loss? Simply, look at a shingle roof. If you can see a pattern in the shingles that was not there before the hurricane, then you may have granular loss. It may be more defined now, several months later, as dirt accumulates differently depending on the amount of granules on a shingle. As for tarps, why are there so many tarps still? Are roofing companies that backlogged or are insurance companies failing to pay insurance benefits?

TO SIGN OR NOT TO SIGN

The frequency of shady contractors swindling homeowners in insurance claims has dramatically increased since Hurricane Matthew devastated the area. The contractors’ method of deception is forcing a homeowner to sign an Assignment of Benefits (AOB). While most insurance policies allow for a homeowner to assign benefits to a third party, such an assignment is not required or mandated in order to receive benefits. Many contractors approach the homeowner with an AOB form and suggest that it must be signed before they can proceed with providing a repair estimate.

If you sign an AOB you can no longer deal directly with the insurance carrier to resolve your claim. The claims adjuster can only legally negotiate with the contractor and payments will be made directly to the contractor. Unfortunately, some contractors cash claims checks without making any repairs to the insured’s home.

There is currently pending before the 2017 Florida Legislature a bill that will greatly reduce the ability for contractors to defraud homeowners with AOBs. If passed, under the new law an AOB will not be valid unless it is signed by all persons insured under the policy and includes a seven-day period in which the insured may cancel or void the assignment without penalty. Most importantly, the AOB must contain a written, itemized, per-unit cost estimate of the work to be performed.

Until new legislation is passed, however, your rights as a policyholder and claimant could be compromised if you sign an AOB. If a contractor asks you to sign a contract, estimate or other document, contact our office and allow one of our attorneys to review the document with you and assure your interests are protected.

THREE THINGS TO CONSIDER BEFORE YOU DECIDE AN APPEAL OF YOUR DIVORCE IS YOUR NEXT CHOICE OR EVEN THE RIGHT CHOICE

After you received a Final Judgment dissolving your marriage, you probably felt a multitude of feelings ranging from relief to sadness, which are all normal feelings after a divorce. You may also feel that the Final Judgment did not fairly divide your marital assets or debts, or sufficiently provide for your support in terms of the amount or length of alimony. On the other hand, you may be the spouse who is ordered to pay alimony or portions of other spouse’s attorneys’ fees, and feel that the judge did not properly consider all the facts in your case. In either case, if you feel that the Final Judgment is grossly inequitable, here are THREE things to consider before you take the step to file an appeal .

First , the time constraints on when you can file an appeal is important. While you have fifteen (15) days from the filing of the Final Judgment to request that the judge re-hear your case, this does not necessarily mean that the time to file an appeal of the Final Judgment will be tolled or suspended. You need to make sure that you are seeking a re-hearing from a Final Judgment that is “final in nature.” Normally, you have thirty (30) days from the rendition of the Final Judgment to file a Notice to the appellate court of your intent to appeal and pay the filing fee.

You may decide that because of the time constraints you want to forego seeking a re-hearing and simply seek an appeal of the Final Judgment. One caveat to doing this is that where your appeal is based on the judge failing to find specific facts supporting the Final Judgment, it has been established that the appellate court will not reverse the Final Judgment unless a re-hearing is first entertained and rejected. But, where your appeal is based on the argument that there is a lack of sufficient evidence supporting the Final Judgment a motion for re-hearing is not required.

Second , it is best to consider the type of “standard of review” the appellate court will apply to your appeal. In most appeals of a Final Judgments dissolving a marriage, the appellate court will utilize an abuse of discretion standard. An abuse of discretion standard is a low standard that requires the appellate court to reverse portions or all of the Final Judgment award, including alimony , child support, attorneys’ fees, or equitable distribution award only if it finds that the trial court abused its discretion. However, where the judge incorrectly applied the law to the facts of your case or interpretation of the law, then the appellate court can review your Final Judgment de novo or as if, the appellate court was retrying your case.

Third , an appeal process takes time, on average, a year to two years. This is because after a notice to the appellate court is filed, you have seventy (70) days to file a brief detailing your arguments, then your ex-spouse has twenty (20) days to file an answer to your brief, and finally, you have twenty (20) days to file a reply to your ex-spouse’s answer brief. Each side can also seek extensions of time to file their briefs, which extends the appeals process even further. Also, either side can request that the parties be given a chance to orally argue their side before a three panel judge.

Whether an appeal should be your next choice, or the right choice, requires consideration of many things including the time, expense and the overall outcome you wish from an appeal. Contact our offices at (386) 253-1111 for more guidance and advice on whether you should seek an appeal and what to expect from your appeal.

Does Homeowners Insurance Cover Lightning Strikes?

With the 2016 Hurricane season over and 2017 season soon to be on us, it is a good idea to review your homeowner’s policy for coverage exclusions. Your insurance agent has probably let you know whether you live in a flood zone and whether additional flood insurance was mandatory and highly advised. But, what about lightning?

Typically lightning strikes, as well as fire caused by lightning, are covered as perils in almost all homeowner’s insurance policies. But, there may be exclusions. Read the fine print. For example, your policy may not cover damage from an electrical surge that occurs when lightning strikes the power line that runs to your home.

A lightning strike can create a fire inside or outside your home, ruin sensitive appliances, electronics and wiring inside the walls, and even shock and injure occupants.

If a lightning strike happens, the most important thing is to safeguard your family and yourself.

•Make sure your house is equipped with smoke and fire detectors. Lightning is so hot that fires caused by direct strikes are instantaneous. If you smell smoke or feel heat during a storm, evacuate the building immediately.

•Make sure all of your appliances are plugged into grounded outlets that offer surge protection. This will not protect against a direct strike, but it may help if there is an electrical surge in a storm. For maximum safety, unplug computers, televisions, microwaves and other electric appliances during storms.

•If you live in a high strike area, consult professionals about installing lightning rods or whole house surge protection.

Even with such precautions, it only takes one direct lightning strike for your home to be damaged.

Contact us to discuss your coverage and to file a claim for damages incurred by a lightning strike.

Holding Title to Assets in a Living Trust

The primary purpose of having your assets in a living trust is to avoid the expense and delay of the probate process. Keep in mind that anything that you own which is not jointly held or in a revocable living trust at the time of your death will go through probate . Therefore, if you have created a revocable living trust by executing a trust agreement, the objective is to transfer the ownership of suitable assets into the name of the trustee of your living trust, so that these assets will not be involved in the probate process.

Your living trust can’t have any beneficial effects, if it is unfunded (empty). The trust can’t deal with property that it does not own. So, it is an essential step in making your trust effective to transfer ownership (title) of property to the trust’s name.

Most of your assets should go into your living trust. Any assets which are solely in your name, outside of your trust will be subject to the probate process. Transferring assets into your trust is usually very simple. Basically, there are two types of property that are transferred into a trust – property with ownership (title) documents and those without such title documents. Each type of property is treated differently when it comes to transferring it to your trust.

1. Property Without Ownership (Title) Documents

Many types of property don’t have title documents, including all kinds of household possessions and furnishings, clothing, jewelry, furs, tools, farm equipment, antiques, electronic and computer equipment, art works, bearer bonds, cash, precious metals, and collectibles. Some estate planners suggest that you can transfer these items to the trust simply by listing them on a trust schedule and that no other action is needed. However, we recommend that such items be listed on a schedule attached to a transfer document such as a Bill Of Sale, which simply and legally formalizes the transfer. Enclosed is a Bill of Sale for you to sign when you come in to sign the deed to your house.

2. Property With Ownership (Title) Documents

After your trust agreement has been signed, witnessed, and notarized, it is essential that you formally re-register the ownership of all items of property, that you want to transfer into your trust, which have ownership documents (title papers). Here is a list of some of the types of property which must have the title documents re-registered, if you want such property transferred into your trust:

(i) Bank Accounts

(ii) Business Interests

(iii) Motor Vehicles

(iv) Real Estate (Real Property)

(v) Stocks, Bonds, & Mutual Funds

Your trust won’t be effective for any property with an ownership document which is not re-registered in the trust’s name. The new document of title must show that the trustee – not you, the grantor – is the legal owner of the property. If the trustee isn’t the legal owner of the property, the trustee (and successor trustee) has no legal authority to deal with the property for the benefit of the beneficiaries and no authority to transfer that property to the beneficiaries as your trust directs.

If the title to property listed on the trust schedule remains in your name (you fail to re-register it to your trust), that property will pass under the terms of your will. Since it’s not usually specifically listed in your will, it will go to the residuary beneficiary, who, of course, may not be the person who you intended to receive it. Even if your residuary beneficiary in your will is your trust, that property will have to pass through the probate process. If you have no will, any property not transferred to your trust will be left under the terms of the state’s intestate succession law. In either case, it will be subject to all the expense and delay of the probate process – the very things you are trying to avoid.

Our firm can discuss how a living trust will help you make distribution of your assets after your death without going through probate, and can discuss how to fund the trust to make it effective. Contact us and arrange an appointment to discuss this important subject.

THE TEN (REALLY ELEVEN) COMMANDMENTS TO FOLLOW WHEN APPEARING FOR A DEPOSITION OR SWORN STATEMENT

Whether you are pursuing a personal injury or insurance claim, or are a debtor in bankruptcy, or a plaintiff or defendant in a lawsuit, you will likely be required to answer questions under oath. On those occasions, remember that the person asking you the questions is, in all probability, not on your side. It is in your best interest to have an attorney represent your interests when you are subpoenaed for a deposition or requested to provide a sworn statement.

Your attorney will be able to object to irrelevant lines of questioning, redirect the deposition into appropriate areas, and prevent the questioner from putting you on Trial through a simple sworn statement.

Your attorney will walk you through the deposition process and help you understand the following guidelines:

1. Do not volunteer information; answer only the question asked. No matter how much you want to help the case, avoid the temptation to expand your answer beyond the question asked.

2. Listen to the question asked. Never interrupt a question with an answer.

3. Do not answer any question unless you understand the question and the information requested by the question. If you do not understand a question, you should request that the question be repeated or clarified.

4. Do not guess when answering a question. All that you are required to provide is your best recollection. If you do not know or remember the answer to a particular question, say so. Just because you are asked a question does not mean that the question has an answer and that you must have an answer.

5. Do not bring any documents to the deposition/sworn statement unless there is a written request specifying the documents you are to have with you, or unless your lawyer so advises. When presented with documents or exhibits during the deposition/sworn statement, take time to review the materials to be sure that they are genuine and take time to think about what the document represents.

6. Listen, concentrate and focus on the questions asked. A deposition/sworn statement is not the time to engage in small talk or jokes. If you get too comfortable with the person asking the questions, you may not realize what you have answered.

7. Be polite and never become angry or hostile. By becoming angry or hostile you restrict your capacity to listen and concentrate on the questions asked.

8. When faced with a leading question, that is a question that suggests the answer, or a hypothetical question, that is a question that assumes facts, be sure that the entire substance of the question is accurate before answering “yes.” If any part of these kinds of questions is inaccurate, then either correct the inaccuracy before answering or simply answer “no.”

9. Do not hesitate to correct errors you may make during the course of the deposition/sworn statement. Everyone miss-speaks and forgets things.

10. Respond to each question; but at the same time make the question mean what you want it to mean and answer the question the way you want to answer the question.

11. TELL THE TRUTH! Do not lie, exaggerate, or overstate what you know.

Remember that it is in your best interest to have an attorney represent your interests when you are going to give a deposition or sworn statement.

If you have received a subpoena, contact us today to look out for your best interest.

2017 Alimony Reform Legislation

The regular session of the Florida Legislature convened on March 7, 2017. Once again, alimony reform is high on the list of bills to be considered by both the House and Senate.

Two alimony reform bills, House Bill 283 and Senate Bill 412, have been referred to committee. The focus of the proposed legislation is to attempt to create predictability in the outcome of cases based on the parties’ income, assets, needs, ability to pay and standard of living. Presently, the courts enjoy broad discretion in setting the length of alimony payments and the amount of those payments.

Many forms of alimony exist as a matter of state statute and case law. They include permanent periodic alimony, durational alimony, rehabilitative alimony, bridge-the-gap alimony and nominal alimony. Generally, permanent periodic alimony continues until the recipient spouse either remarries, dies or engages in a supportive relationship. Decades ago this type of alimony made sense because societal pressures were such that a spouse, if divorced, would remarry. Societal norms have dramatically changed. Now couples not only routinely live together, unmarried but they, in many cases, have children while in an unmarried status.

The proposed bills presently pending in the Florida legislature would remove permanent periodic alimony as an option for the courts and replace it with durational alimony. Durational alimony is to be paid over a set period of time, such as: one year, five years or ten years. The proposed legislation would create a formula that would calculate a range of options based on the length of the marriage. A long-term marriage would result in a lengthy duration of payments.

The amount of alimony would also be the subject of a formula based on the payor spouse’s income as compared to the payee spouse’s income. The disparity between the two incomes would be applied to a mathematical formula which would create a narrowed range of payments for the court to consider. Essentially, durational alimony would be the only form of alimony remaining, should the present legislation be passed. Rehabilitative alimony, bridge-the-gap alimony and nominal alimony would no longer exist.

In past years, similar bills to the ones now pending have been passed by both the Senate and House of Representatives only to be vetoed by the governor. This occurred on two prior occasions. The lack of guidance under the present law breeds litigation and tremendous disparity in judicial rulings under the same facts and circumstances driven by a particular judge’s ideology and personal experiences. In order for justice, equity and equality to prevail, the alimony statutes in Chapter 61 must be reformed to reflect the societal norms of our times.

Learn more about how Doran Sims Wolfe & Ciochetti can help you with Alimony .

Why you should consult with a Property Insurance Attorney for EVERY Property Insurance Claim.

The insurance adjuster works for the insurance company, not the insured. During the months since Hurricane Matthew, I have heard countless people naively say “their” adjuster when referring to the insurance company’s adjuster. This misconception allows the insurance company to – as a routine business practice – underpay claims. We have all heard the old adage: Get three estimates when hiring a contractor. If this is wise advice, then why accept the insurance company estimate at face value?

My experience is that, on average, there is a 20-50% difference between the insurance adjuster estimate versus an independently-hired contractor or estimator. In short, you should always consult an experienced first party property insurance attorney in the following scenarios:

  • Denial of insurance coverage
  • Reservation of Rights letter
  • Delays in payment of claims
  • Bad faith by the insurance company

However, more often than not, the insurance company routinely relies on “underpayment of claims” in order to boost its bottom line. An experienced first party property insurance attorney knows how to maximize your claim. Most importantly, all cases are accepted on a contingency fee basis for the additional payments obtained, meaning there is no fee if we do not recover additional funds from the insurance company. In addition, the insurance company may be liable for attorney’s fees and costs under Florida law.

Please call our office for an appointment to discuss your Claim.

GETTING YOUR “LEGAL AFFAIRS” IN ORDER

When working with the family of the recently deceased, the most common complaint we hear is that they are overwhelmed by paperwork after the decedent’s death. We recommend that you consider spending some time getting your “legal affairs” in order. This will make life easier in the long run for your heirs.

Our specific recommendation is that you write a letter to your potential Personal Representative (what Florida calls your Executor) explaining to your Personal Representative all aspects of your affairs and providing to your Personal Representative all of the information which you think he or she needs to know. In many cases, you are the only one with the “big picture”, and are best prepared to organize the information which your Personal Representative will need at your death. This will greatly simplify and streamline the transfer of your assets.

We suggest that you keep the originals of your important papers in a safe deposit box. This should include your original Will, Durable Power of Attorney, Living Will, Medical Surrogate Appointment, stock certificates, bonds, insurance policies, marriage and death certificates, and other similar papers, and almost as important in this internet age, of a list of websites you frequently access with updated passwords. Copies of those papers should be in separate files in a file cabinet which has a key and which is located in your home. The information which will be extremely helpful to your future personal representative includes the following:

1. Safe Deposit Box location and key.

2. A copy of your current Last Will and Testament and the location of the original.

3. Original Living Will with another original to be held in your safe deposit box.

4. Burial instructions and arrangements made, including prepayments and rights to which you are due.

5. A copy of any Trust Agreements which you have established or for which you are the beneficiary. The originals should be in your safe deposit box.

6. Social Security records for you and your spouse.

7. Copy of your Marriage Certificate with the original being held in your safe deposit box.

8. Copy of Pre-Nuptial or Post-Nuptial Agreements with location of originals noted.

9. Divorce/Separation Agreement.

10. Passports for you and your spouse.

11. Real Estate Information. For each property owned by address:

(a) Copy of most recent tax bill for each parcel owned.

(b) Where your file is containing your Deed, Title Insurance Policy, Mortgage information, and other information regarding the property.

(c) Copy of your Mortgage Payment Coupon indicating the name, address and telephone number of the Lender and the Mortgage Loan Number.

12. Automobile Title or Lease Agreement, and Boat Title, and location of each.

13. List of all credit cards held including names of creditors, addresses, telephone numbers and account numbers. A copy of a statement regarding each credit card held would be helpful.

14. Banking information, including name and location of each bank in which you have an account, and account numbers.

15. Recent Brokerage and Mutual Fund Statements – copy of one statement for each account.

16. Retirement Asset Statements, IRA, Keogh, Company Pension Plan Asset Statements.

17. Partnership Agreements, Leases or other contracts to which you are bound.

18. Copies of last year’s Federal and State Income Tax Returns.

19. Notes Receivable, Notes Payable and other loan agreements.

20. Life Insurance Policies (with master list of each policy).

21. List of the name, address and telephone number of your lawyer, accountant, financial planner, stockbroker, insurance agent, including fax numbers of those individuals.

Putting all this information together may seem like a lot of trouble to you, but at least you know where everything is. Think of how much trouble it will be for someone who follows you who has no idea where these things are or even if they exist. By so doing, you will enable your Personal Representative and family members to carry out your wishes quickly, efficiently and with as little burden as possible.

Please call our office for an appointment to discuss and have prepared the documents you will need during your life (Powers of appointment, Medical Surrogate appointments, etc.) and after (Last Will and Testament, Revocable Trusts) to make handling your affairs straight forward and as uncomplicated as possible.