Elder law: When you die are your “digital assets” accessible?

Your bank accounts are on line.  So are your photos, your credit card charge accounts, your e-mail and social media.

But when you die, or become incapacitated, will the people responsible for looking after your estate be able to locate and access all these “digital assets”?  Lawyers are concerned not only about  identifying all one’s “digital assets”, but also making sure that once they’ve identified them, and have the passwords, that the people responsible for your estate can access them lawfully.  In one case, a family was tied up in court with Yahoo for years to obtain access to a deceased’s e-mail.

A model law adopted in Delaware will come before the Florida Legislature in May, when Florida is expected to enact  the Uniform Fiduciary Access to Digital Assets Act (UFADAA).  In the meantime, common sense dictates that one list all one’s electronic accounts, along with their passwords, user names and so forth, and put away somewhere people will know to look.

3 things every woman (and man) needs to know about cyberstalking

It’s a crime and a court can intervene to stop someone from harassing you through “cyberstalking.”  What’s cyberstalking?

  • The use of e-mail or other electronic communication (like Facebook) to communicate images or language,
  • Directed to you,
  • Causing you substantial emotional distress, and
  • Serving no legitimate purpose

Some examples of conduct that may entitle you to an injunction include:

  • Prior threats, harassment or physical abuse;
  • Threats to harm you, your relatives or associates;
  • Killing or injuring a family pet;
  • Threats to use a weapon such as a gun or knife;
  • Destruction of your personal property such as your cell phone or clothing

When these occur, a judge can order the offender to stop, and set terms and conditions that the judge thinks may be necessary for your protection, including giving orders and directions to police.  Violation of the judge’s order can result in arrest and jail for the offender.

Not all electronic mischief rises to the level of cyberstalking.  When a wife changed her husband’s password, took his e-mail’s, and used them against him in a divorce, that was not cyberstalking, because there was no threat of imminent violence, merely “uncivil behavior that can cause distress or annoyance.”

The death of PIP?


      PIP–personal injury protection, or no fault insurance, the controversial coverage that all car owners must purchase–now represents a “billion dollar” tax on Floridians, according to Gov. Scott, who has made PIP reform priority #1 in the Legislature with TV ads, and a public relations campaign featuring a website blaming lawyers and others for widespread insurance fraud.   

     Today, Florida statutes require that owners of motor vehicles buy “no fault coverage”, which pays up to $10-thousand in benefits to cover medical expenses and lost wages after a motor vehicle crash.  It doesn’t matter whether the accident was your fault or the other person’s.  Your no- fault policy is supposed to cover your medical bills, or at least the first $10,000.00 of them. 

     The system, originally enacted in 1974 to cut down


lawsuits, has been abused and exploited over the years. 

     And today, television ads for chiro clinics blare out solicitations to accident victims, because each injured person potentially represents $10,000.00 in billings to the clinic.

     Lobbying is furious, and the shape of the new PIP won’t be known for awhile.  But this much is sure: It is changing, and the changes could be substantial.

What if I’m injured in an Uber?

Uber states that while the vehicle is on a trip (starting when the driver accepts a trip), Uber provides $1-million in coverage for liability to its riders, and $1-million of uninsured motorists coverage if another motorist causes the accident but doesn’t have adequate insurance.

For passengers, this level of financial responsibility compares favorably with the $100.000.00 of liability insurance that Florida statutes require taxi cabs to maintain.

The level of insurance which Uber provides is different when the vehicle is not on a trip, but just on the Uber platform. In that instance, Uber states it provides liability of coverage of $50,000.00 per person and $100,000.00 per occurrence.

If the vehicle is neither on a trip nor on the Uber platform, the individual owner/operator’s insurance is the coverage that applies.

Like Uber, the “cab company”–such as “Yellow Cab”–does not own or operate the taxis. It is well established that the “cab company” acts only a dispatcher of independent owner/operators. As such, the “cab company” is rarely if ever liable for the carelessness of the owner/driver of the taxi.

Unfortunately, some taxi cabs in Miami-Dade are controlled by owners who pass the vehicles around to unqualified drivers, effectively evading financial responsibility. In one scenario, the cab is owned by a shell corporation, and insured as required by state statute. But if the vehicle is being operated by a driver who is not named on the policy, coverage will be denied. And the shell corporation that owns the taxi has no assets. Under these circumstances, chances of finding a financially responsible party capable of paying for the damages caused to an injured passenger can be slim to none.

As in any other type of case, accidents involving taxi cabs and ride sharing services require careful investigation to identify not only the culpable parties, but also where the money can be found to pay for the injuries and damages.

From our firms offices in North Miami, we have handled hundreds of motor vehicle accidents of all kinds throughout South Florida, including car crashes, bus accidents, bicycle accidents, pedestrian accidents and motorcycle accidents. Every client and each case is different and unique. If you are injured any kind of a car crash, we are available to consult with you at our offices in North Miami or in your home or hospital. For more, check out our website, and check out “How much is my case worth?” on YouTube.

Our Latest: Getting her the surgery she needed

Our latest: Getting her the surgery she needed

     Our mission is to help injury victims and their familiesCar-accident recover fair compensation from others who were at fault in causing the injuries.  We do this through investigation, counseling and advocacy.  Sometimes, counseling can be the most important part.

     Such was the case for my client Stephanie, a single working mother who suffered a broken ankle requiring surgery in a car crash.  Unfortunately, Stephanie’s PIP insurance, which would have paid much of her medical bills, had lapsed.

     We usually do not “refer” a client to a doctor.  For one thing, it looks bad.  For another, each case and client is different, and there is no “one size that fits all.”  The selection of a physician is a personal thing that varies depending on each individual’s circumstances: Do they have PIP insurance, health insurance, an HMO, Medicare, Medicaid or worker’s compensation?  Do they have a relationship with a physician?  Did the hospital recommend a doctor?  What is the nature of the injury and what kind of specialist does the client need?  Where does the client live?  Working with each client, we often develop a list of options so that the client can choose the best option for themselves.

     In Stephanie’s case, we had developed a relationship over the years with an excellent group of orthopedists in the community that agreed to treat Stephanie under a “letter of protection,” providing that the doctor’s bill would be paid from the proceeds of any recovery made against the car that hit her.  The surgery was successful, Stephanie’s ankle healed and her case was settled.  The doctor’s bill was paid and Stephanie received a settlement check just in time for the holidays.

Casey Anthony: Did the system work too well?

Casey Anthony: Did the system work too well?

      Casey-Anthony-VerdictThe mother of a slain  toddler who never reports the child missing, and then lies to police during investigation surely looks guilty. 

     But in a murder trial, the jury is sworn to follow the law, and return a not guilty verdict if there is a reasonable doubt.  No proof exists of when, how or why the killing occurred.  And in the face of worldwide opinion to the contrary, 6 folks in Orlando returned a not-guilty verdict. 

      I was surprised too when I heard the verdict, and surprized again when one legal expert stated that justice is not the system’s goal.  Prof. Alan Dershowitz explained the system is based on the premise that it is “better that 10 guility people should go free than one innocent person be convicted.”

    But to me, the system is supposed to be about justice, and if not, what are we here for?  The problem comes when you “know” someone is guilty, but no conclusive evidence establishes that guilt. 

     For gourmet reading on this year’s “case of the century,” check out the piece by Frank Bruni of The New York Times on the “sordid cast” in this case.  It’s an eye opener.


On the Road: Car accident with rental car?

 personnelhandingoverkeystodriver     Rental car companies are no longer liable for negligence by rental drivers.  So if you’re injured in a car accident caused by a careless driver behind the wheel of a rental car, you may not be able to recover from the rental car company.   This is a big change in the law of personal injury.  

      A new federal law called the Graves Amendment supercedes Florida state statutes, the Florida Supreme Court has held.  Now the rental car companies shall no longer be the deep pocket in crashes involving rental vehicles–unless they were at fault in renting the car in the first place.     As a personal injury lawyer, representing individuals who have experienced a personal injury following a car accident,  we recognize that this signifies a large change in how we work towards achieving justice for our clients injured in rental car accidents.

Med Mal Update: Florida Legislature continues crackdown against med mal claims

      Legislature-FlahouseofRepUnder bills headed to the Governor’s desk:
     Keeping experts out of court: Out-of-state doctors must apply for a certificate to testify as an expert witness in Florida trials.  Doctors who are found to have offered “deceptive” or “fraudulent” testimony could be disciplined by the State.  Comment: With so many Florida doctors unwilling to testify against other Florida doctors, many expert witnesses come from outside the state.  This reform is not intended to guard against fraud, but to inhibit and intimidate physicians from testifying about malpractice.
     More recovery limits: “Sovereign immunity” –which limits the amount of money that can be awarded against an agency of state government–has now been extended to non-profit teaching hospitals such as University of Miami/Jackson Memorial Medical Center, Mount Sinai Medical Center in Miami Beach and Shands Healthcare at the University of Florida.  Any judgment for medical malpractice claims against these institutions now shall not exceed $200,000.00 per person.  And, attorney’s fees are limited to no more than 25%, so as to disincentive/discourage attorneys from pursuing such claims.
     Medicaid will now be in the form of privatized managed care.  All Medicaid is being privatized into managed care by HMOs.  This includes Medicaid beneficiaries such as low income recipients, disabled, nursing home residents, developmentally disabled and others.  Malpractice claims against Medicaid doctors would be capped at $300,000.00 for pain and suffering.

Our Top Five Websites for the 411 on Your Case

      The Internet has revolutionized litigation.  Needed information that used to take a lot of time and labor to get is now available at your fingertips.  Of course, we use several proprietary databases for much of our research and investigation.  But much information is available to anyone, for free.  So here are our “Top 5” go to web sites for info on your case or controversy, listed Letterman-style, from bottom to top:   


     Who is the client’s doctor?  What’s their correct name and address?  Are they board certified, and if so, in what specialty? Where did they train?  Do they have liability insurance or prior medical malpractice claims?  This data base not only includes medical doctors, but every kind of licensed health professional in Florida including dentists, chiropractors, psychologists, physical therapists, nurses and more.


     This is the popular version of the PDR–Physicians’ Desk Reference–containing detailed specifications concerning all pharmaceutical medications.  If the client taking medication at the time of his or her accident, what are the side effects and adverse reactions to the medication?  Could they have played a role in causing the accident?  If prescribed for treatment for the injury, to what extent can the side effects and possible adverse reactions cause complications that increase the injuries and damages?


     If the accident took place on private property–residential or business–who owns the property?  This database from the Miami-Dade Property Appraiser provides names and addresses of the taxpayers on the property, dates of purchase, purchase price, zoning, assessed values and an aerial photo.


     If you have a dispute with a company, this is the Florida Department of State’s Division of Corporations main data base for corporate information.  What is the company’s true name and address?  Who are its officers and directors?  Who is its registered agent for service of process?  Is the company doing business under a fictitious name, and if so, what is the fictitious name?  What other companies, if any, does an officer or director serve on?  Even the company’s employer identification number (EIN) can be found here.


     If someone’s been involved in legal proceedings of almost any kind–a lawsuit, big or small, a divorce, an estate, criminal prosecution, foreclosure or a traffic ticket–many case details are available at the Clerk’s Public Access page, including the lawyers involved, the court’s docket, the case’s resolution, pleas entered and more.  (Juvenile and mental health cases do not appear.)
     Honorable mentions and runner-ups: Florida Statutes, the Florida Administration Code, the National Highway Safety Transportation Administration Office of Defect Investigation for complaints about auto defects; Municode on line for local city codes; The Florida Office of Insurance Regulation directory of insurance companies; the Florida Building Code on line and Google Earth to visit an accident scene virtually.

Beware fatal hazard in baby’s cribs

Crib safety is in the news again in the wake of the latest of 20 recalls involving millions of cribs by the U.S. Consumer Product Safety Commission. Numerous infants have died mostly because of defects in drop-side cribs.

The drop-sided crib allows caregivers to remove children without having to reach over a high railing. But because the plastic hardware can break or deform, a gap between the drop-side and mattress can form, trapping a baby and resulting in suffocation. Consumers are urged to use particular care in following manufacturer’s instruction in assembling or re-assembling cribs.

If you need help or have a direct question about a personal injury involving crib safety or any product liability case, click here or call 305-891-3316 or 305-893-LAWS (5297).

© 2010 Mark Wolin | All rights reserved.Toobular