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New Cosby-Related Court Ruling May Help Victims Of Sex Abuse With Compensation

New Cosby-Related Court Ruling May Help Victims Of Sex Abuse With Compensation

A federal Appeals Court in Massachusetts recently handed down a ruling that may provide a way for victims of sex abuse to receive compensation – but probably not in the way that the victims originally envisioned. By now, most Americans are probably aware that a large number of women have come forward and publicly accused entertainer Bill Cosby of sexually abusing them. Many of them claim that Cosby drugged them before taking advantage of them sexually. Several of the women (and mostly those from states that have the generous Statutes of Limitation laws concerning sexual abuse cases) filed suit against Mr. Cosby seeking money damages. Apparently, Mr. Cosby had personal/homeowner’s insurance coverage with AIG Insurance at the time of several of the alleged incidents of abuse, so he turned over the claims of the women to AIG and asked the company to defend him and to settle the ladies’ claims or pay any judgment that might be entered against him. This is the essence of any insurance contract, after all.  Insurance won’t cover everything that bad that happens, obviously, but you don’t know unless you ask. Insurance is often a critical issue in sexual abuse cases. In our experience handling cases for victims of sexual abuse of all ages over the past 25 years, it is commonplace for individual perpetrators/sexual abusers/predators to be people of very modest means, and therefore little or no ability to pay money damages to a victim of sex abuse, and very, very rarely an amount commensurate with the damage that has been inflicted.   Many, many times we find ourselves turning down very meritorious cases...

(Most) Florida Personal Injury Cases Deserve More Than A Paint-By-Numbers Approach

This may come as a surprise to many of our readers, but we believe that there ARE actually some Florida personal injury cases that do NOT require the personal or creative touch that an experienced personal injury attorney or law firm can provide.  The reality is that is SOME personal injury cases (but not many), a paint-by-numbers may be just fine. I have been thinking about this lately as I have recently been hearing advertisements on the radio, and reading stories in the media, about how LegalZoom, Avvo, and some of the other corporate players in the legal space are beginning to market their forms to personal injury victims.  Not only that, but these corporate giants are apparently also considering starting to sell some kind of limited, pay-up-front, lawyer services to help people with personal injury cases. Contingency Fee Allows Clients To Afford Excellent Attorneys The reality is, using pre-prepared forms, or having a lawyer give minimal advice, may be perfectly acceptable in some Florida personal injury cases.  This kind of arrangement obviously contrasts with the traditional way that personal injury cases have been handled – on a contingency fee basis.   On a contingency fee case, there is no up-front expense or out-of-pocket cost to the injured person in order to hire an attorney and have the attorney handle the case from start to finish.  In a contingency fee case, the client pays the attorneys’ fees and costs at the end of the case, and ONLY if the lawyer has generated a settlement, jury verdict, or judgment in favor of his or her client. We are firm believers in the...

What Is A Motion To Approve Settlement In A Florida Personal Injury Or Wrongful Death Case?

In many of our cases, our clients are surprised when we tell them that they do not have the final say regarding settling their Florida personal injury or wrongful death cases, and that we need to file a Motion To Approve Settlement and seek a judge’s approval of the settlement. A Motion to Approve Settlement is typically required in a case where there is a substitute person (a Personal Representative or Guardian, typically ) representing the interests of someone who has died, or a child, or someone who is incapacitated and cannot act on their own behalf. Under Florida law, any person who elects to act in the capacity of Personal Representative of an Estate, or as Guardian of a minor or incapacitated person owes a fiduciary duty to act in the very best interests of the decedent’s Estate or the person who cannot represent themselves.  Sometimes this duty may even require the Representative or Guardian to act against their own, selfish, interests in order to perform their sworn duty as a Representative or Guardian. Who Hears A Motion To Approve Settlement? Even if the person owing the fiduciary duty does an exemplary job, Florida law requires that any settlement reached by such a Representative or Guardian be analyzed and scrutinized by a Circuit Court judge. The judge is typically looking to make sure the settlement makes sense, and really does serve the best interests of the Estate or the incapacitated person.  For example, a judge might look suspiciously at a proposed wrongful death settlement where the Personal Representative is supposed to receive all of the settlement money, to...

Video Of Fatal Uber Crash Shows Challenges In Nighttime Car Versus Pedestrian Crash Cases

Most of the folks who read our blog will have already heard about the recent nighttime car versus pedestrian crash that occurred in Tempe, Arizona involving an Uber car that was operating in autonomous or self-driving mode. However, many people will not have seen the on-board video from the Uber car: Most of the commentary that I have read about the video seems focused on blaming the pedestrian and emphasizing that this crash — which killed the pedestrian — was unavoidable. Video Evidence Might Not Be Most Reliable In Nighttime Crash However, as a lawyer who has handled thousands of car crash cases over the past 25 years, and probably hundreds of cases involving pedestrians that were hit by cars, it seems to me that the video does not present the kind of “open and shut case” that many commenters think it does.  I think the video raises several unanswered questions — and these are the same kinds of questions that seem to arise in every nighttime car versus pedestrian crash we handle. Unresolved Issues Here are some of the issues that I think remain unanswered by the video (and probably ought to be explored by the victim’s surviving family): **  Lighting.  I am just not sure how reliable the video is in terms of judging the actual amount of light available in the area where the crash happened.  It is easy to see that there are street lights on either side of the road just a few feet away from where the pedestrian was crossing.  In a real-life situation, one would expect that the street lights would create...
Traumatic Brain Injury Might Not Be Obvious Even When Holding Injured Brain In Your Hands

Traumatic Brain Injury Might Not Be Obvious Even When Holding Injured Brain In Your Hands

“Every significant blow to a human being’s head leaves some measure of traumatic brain injury,” says Dr. Bennet Omalu, an internationally-recognized medical examiner, and subject of the recent feature film, “Concussion,” starring Will Smith.   Bob and I had the pleasure of hearing Dr. Omalu present at the recent Florida Justice Association Workhorse Seminar.  Dr. Omalu talked about how fate intervened in his life and placed him in a position of responsibility for conducting the autopsy of the late Pittsburgh Steeler Hall of Fame football player, Mike Webster.   Dr. Omalu said he really didn’t have any idea who Mike Webster was (he grew up in Nigeria, and never became an American football fan), but had recently seen several news stories about Mr. Webster and the problems that he had had in his life since retiring from football.  Mr. Webster suffered from a rapidly declining memory, significant confusion, and other symptoms of traumatic brain injury.  One story focused on how Mr. Webster would often have to sleep in his truck on the side of the road because he couldn’t remember how to get home. Dr. Omalu knew from his medical training that these are all signs of traumatic brain injury.   When Dr. Omalu autopsied Mr. Webster’s brain, he said he was shocked to find no visible injury or brain damage.  So he preserved Mr. Webster’s brain, and performed a microscopic examination.  What Dr. Omalu found was significant damage to the microscopic structures of Mr. Webster’s brain.  We now know this damage as chronic traumatic encephalopathy (CTE), a diagnosis coined by Dr. Omalu.   If You Can’t See A...
Pedestrian Killed By Autonomous Uber Vehicle Should Give Florida Cause For Pause

Pedestrian Killed By Autonomous Uber Vehicle Should Give Florida Cause For Pause

A pedestrian was killed by an autonomous Uber vehicle in Phoenix, Arizona this past Sunday night.  Such a tragic loss of life should cause us to consider some important issues here in Florida, as we prepare for the seeming inevitability of self-driving cars someday dominating our own roads and highways.   To their credit, Uber and the other large companies that are feverishly manufacturing and testing autonomous or self-driving vehicles (including semi tractor-trailers) around the country, have agreed to “pause” their self-driving vehicles while the Phoenix crash is being investigated.  I, for one, am hoping that this pause lasts awhile.   While an investigation of the crash is ongoing, it appears that the female pedestrian was crossing a 45 mph road, walking her bicycle across the street, at 10PM on Sunday night.  It is currently unknown whether the pedestrian had a headlight on her bike, or was wearing any other safety lighting, or even whether she was wearing reflective clothing.  A preliminary investigation suggests that the vehicle did not brake or take any evasive action before the crash.  I have seen social media post suggesting the the woman “darted out” in front of the vehicle (this is a common defense when a driver wants to escape responsibly for hitting a pedestrian), but I am unaware of any evidence to support this. CONCERNS HERE IN FLORIDA   As a Florida car accident attorney who frequently represents pedestrians who have been hit by cars, what sticks out to me is the information suggesting no evasive action was taken by the Uber vehicle.  One of the main sales points for autonomous vehicles...
Traffic Report Arising Out Of Fatal Crash On Orange Avenue In Winter Park Due This Week

Traffic Report Arising Out Of Fatal Crash On Orange Avenue In Winter Park Due This Week

A fatal crash that killed two young women on Orange Avenue in Winter Park was the impetus for an investigation by the City of Winter Park and the Florida Department of Transportation.  The investigators’ finding are due to be reported at a City Council meeting later this week.   The tragic crash occurred on New Year’s Eve 2017.  The driver of a BMW was reportedly going 128 mph down Orange Avenue in Winter Park when he collided with a car backing out of one of the homes along Orange Avenue.  The crash took the lives of two 28-year old women.  The posted speed along Orange Avenue in Winter Park is 35 mph. Speed Is An Issue On Orange Avenue   Although 128 mph is obviously a ridiculous speed, for those of us who travel that stretch of road frequently, we know that it is not uncommon for drivers to exceed the 35 mph speed limit.  The section of road that runs through Orwin Manor is relatively straight, with no traffic controls, so people seem to think they can speed there.   According the material issued by the City of Winter Park, there have been 11 crashes on Orange Avenue, west of Highway 17-92, in the past two years.  This is not altogether surprising.  Heading west, vehicles often abruptly slow in order to make right hand turns on to Westchester Avenue – a convenient cut-through to I-4.  I have also seen several near-misses with cars pulling out of Westchester Avenue, attempting to turn left on eastbound Orange Avenue.   Leading up to the release of the investigation Report, some people...
Provision In New York Bill Should Be Included In Florida’s Child Sex Abuse Statute of Limitations

Provision In New York Bill Should Be Included In Florida’s Child Sex Abuse Statute of Limitations

State government in New York is currently wrangling over a Bill that includes a provision that the Florida Legislature should seriously consider including in the Florida Child Sex Abuse Statute of Limitations law. The Bill (called the Child Victims Act) would extend the Statute of Limitations for criminal charges arising from child sexual abuse, and essentially eliminate the Statute of Limitations for civil cases.  These provisions are very similar to the laws we currently have on the books here in Florida. However, the proposed New York law also has a grandfathering provision that would allow a one-year window for abuse victims who had previously been time-barred from coming forward to bring civil claims.  Florida Can Do Better This grandfathering provision is not something we have here in Florida, but it is a great idea.  After all, why should perpetrators of some of the most heinous and disgusting abuse imaginable be protected by an arbitrary period of time? We regularly receive calls from people who were abused as children.  Very frequently, their lives have been permanently wrecked and ravaged by the physical and emotional abuse they suffered as children.  It breaks our hearts (and their’s) when we have to tell them that there is absolutely nothing we can do for them under Florida law. The New York Bill has not become law yet, however.  The Catholic Church and Boy Scouts of America are lobbying hard in the New York State Senate against the Bill.  It seems that these organizations may be more concerned with protecting themselves than seeing that the child that they served (or failed to serve) receive any...
Military Service May Extend Florida Sex Abuse Statute of Limitations

Military Service May Extend Florida Sex Abuse Statute of Limitations

Many victims of child sexual abuse already know that the Florida Legislature abolished the Statute of Limitations for child sexual abuse cases in the summer of 2010, but most people do not realize that – for victims of sexual abuse prior to 2010 – military service may extend their ability to bring their claims. We frequently receive calls in our office from people in their 30’s and 40’s who have finally decided to come forward, and are attempting to secure some measure of justice against their abusers. Because of Statute of Limitations laws that existed before 2010, most of those calls end with us informing the callers that, because of the passage of so much time, there is little or nothing that we can do to help them. However, the existence of military service – whether by the abuse victim, or one of the parents of the abuse victim – may extend (or really, toll) the Statute of Limitations, and provide the victim with additional time to bring a legal claim. (I have to give credit to one of my colleagues in South Florida for coming up with this legal strategy. I have not seen a reported case addressing this issue in Florida, so it is important for any reader of this post to know that this strategy does not currently reflect the “law of the land”.  However, I have also not seen this argument or strategy officially rejected in any reported Florida case, either.) Servicemembers Civil Relief Act May Actually Provide Some Relief   The effort here is to utilize a federal law called the Servicemembers Civil Relief...
Did Baldwin Park Day Care Do Enough To Stop Child Sexual Abuse?

Did Baldwin Park Day Care Do Enough To Stop Child Sexual Abuse?

The entire Baldwin Park community has been rocked by news that the community’s prominent day care facility, Bright Horizons, has fired an employee over child sexual abuse allegations.  This news hits particularly close to home for us at Cullen & Hemphill, PLC, as several of our employees live in the Baldwin Park community. The Clickorlando.com (local Channel 6) website is reporting that the Florida Dept. of Children and Families came to the facility to make them aware that a child had come forward complaining of being sexually abused.  (The parents of this child should be commended.  This is the very first piece of advice we give to parents when they find out that their child has been sexually abused.  To learn more about this, watch this short video.)  In addition to the child that initially came forward, DCF has apparently interviewed two other children.  This is not surprising, as – in our experience handling Florida child sexual abuse cases — it is unusual for pedophiles or child sex abusers to have only one victim. Warning? Apparently, Bright Horizons has recently been warned by the State of Florida about not checking the background of its employees every five years.  Interestingly, Channel 6’s reporter, Troy Campbell, was able to research the accused perpetrator and found that he or she (the accused perpetrator’s name has not been released) has a criminal record in Virginia from as recently as 2013. It will be interesting to find out more about this child care worker, and why this worker was hired — even though the crime from Virginia, admittedly, does not seem to involve child...

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