Changes in the Law 2010

July 19th, 2010

Habitual Traffic Offender Amnesty Period

House Bill 795 established an amnesty period for Habitual Traffic
Offenders whose revocation results from a third driving while license suspended violation that occurred prior to July 1, 2010. The amnesty period begins October 1, 2010 and ends June 30, 2011.

The intent of the legislation was to allow these drivers to provide
proof of compliance for the underlying sanction, which would result in the removal of the HTO status.

Changes to Child Support Calculation Formula

A new statute has been signed by the Florida Governor, Charlie Crist – making significant changes to the child support system in Florida. Florida child support is based on a mathematical calculation.

The main factor that goes into that calculation is the Gross Income of both parents. In the old system, child support ended when each child reached the age of 18 (or 19 if still in high school). But there was a big problem that came up when the minor children reached 18. The old statute was set up to require parents file a petition, return to court and to seek an order ending child support. If there were multiple children, the law required a parent to seek an order recalculating the amount of child support each and every time one of the children reached adulthood. The effect of the old support statute was to create a huge financial hardship for parents.

Frequently, parents had to go back to court multiple times as each child became an adult. Human nature caused an additional problem: parents facing a required return visit to court always seem to want changes in parenting time. The end result was a series of court fights throughout the life of both parents. The new statute provides a solution to this long standing problem.

Beginning on October 12st, 2010 (certain provisions start on January 1st, 2011) (as of this writing), child support orders must be written differently. Any new child support order shall list the date the support will self-terminate. Normally, that date would be the 18th birthday of the child – or an alternate date based on extenuating circumstances. If there are multiple children, the order must contain a breakout of support amounts for each child, and a schedule of dates showing when the support for each child terminates.

The bottom line: parents will not be required to return to court when their child becomes an adult. The other big change affects the amount of child support – and how that amount is customized for each parenting situation. In the old system, child support was calculated by a standard formula for most situations.

But when the non-majority parent (non-custodial parent) had a certain amount of overnights with the child – the support calculation used a different formula. This alternate formula resulted in a drastically lower support number. The amount of overnights needed to trigger the alternate formula was 146. This resulted in continous battles between parents. While one parent fought for overnight parenting time exceeding 146 nights, the other parent fought back trying to stay below that number. The real fight in everyone’s mind was over money.

The new statute changes the trigger point from 146 overnights to 73 overnights. Because most non-custodial parents enjoy at least 73 overnights of parenting time – most situations will qualify for the alternate support calculation. That alternate calculation is called “Substantial Time Sharing.”

And once the alternate calculation is triggered, child support will vary according to the exact amount of overnight parenting time each parent is responsible for. At The Divorce Center, we believe the new statute will lessen fighting over money and direct the attention of parents to where it belongs: on their children.

Posted in Changes in the Law, July 2010 | Comments Off

Recent Case Law Updates

June 3rd, 2010

Recently, several changes have been made to laws that effect your legal rights. At Albaugh Law, we believe it’s important to share these updates with you because we’re on your side.

Collateral Source

Ingenix v. Ham
Case No. 2D09-2211 (Fla. 2d DCA May 5, 2010)

Section 768.76(4), Fla. Stat., limits a collateral source provider’s right of reimbursement from a claimant’s recovery from a tortfeasor. It provides that the collateral source provider’s recovery: shall be limited to the actual amount of collateral sources recovered by the claimant from a tortfeasor, minus its pro rata share of costs and attorney’s fees incurred by the claimant in recovering such collateral sources from the tortfeasor. In determining the provider’s pro rata share of those costs and attorney’s fees, the provider shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement or settlement which is for costs and attorney’s fees.

The Second DCA holds that this provision controls over any provision to the contrary in a health insurance policy.

The health insurer was not entitled to reimbursement of the full amount of medical bills it had paid, even though the policy stated that it was. The insurer’s reimbursement had to be reduced by its pro rata share of costs and attorney’s fees.

Compulsory Medical Examination

Prince v. Mallari
2010 WL 1626522 (Fla. 5th DCA April 23, 2010)

Gaskins v. Canty
29 So.3d 432 (Fla. 2d DCA 2010)

In two recent decisions, the Fifth and Second Districts have clarified some of the parameters for compulsory medical examinations. While these examinations commonly arise under Florida Rule of Civil Procedure 1.360, they also occur in other situations, for example, at the behest of an insurance company in a PIP case, or in a worker’s comp case pursuant to 440.25(7), Fla. Stat. The Supreme Court has applied the same analysis to all of these contexts. See U.S. Security Ins. Co. v. Cimino, 754 So.2d 697 (Fla. 2000) (holding that the person examined has the right to have their own attorney and a video camera or court reporter present). The Court has also recognized that the examining doctor is not “independent” and that the term “compulsory examination” may be more realistic. See Allstate Ins. Co. v. Boecher, 733 So.2d 993, 995 n.4 (Fla. 1999) (noting that Rule 1.360 “specifically provides that the witness ‘shall not be identified as being appointed by the court.’”)

In Gaskins, following the Court’s “liberal view” in Cimino, the court stated that the party being examined is generally entitled to have their attorney, videographer or court reporter present unless the other party establishes a case-specific reason why such attendance would disrupt it, and that no other examiner in the area woud conduct an examination with a third party present. The Gaskins court, like the Cimino court, quashed an order prohibiting the plaintiff from having their attorney or videographer at the examination.

In Prince, the court held that the defendant could not have its own videographer at the CME. It pointed out that the examination is “‘adversarial’and the plaintiff is entitled to protection.” The plaintiff is generally unsophisticated and is “placed in the awkward position of being physically examined by someone not of his or her choosing, who has no interest in the plaintiff’s well-being and not for medical treatment.”

The examining physician is an expert witness for the opposing party. The plaintiff must be protected from improper questioning about liability issues by the defendant’s doctor, and the plaintiff’s privacy must be protected. “The defendant has no such right and needs no such protection.”
The defendant’s attorney is not allowed to attend the examination, see Chavez v. J&L Drywall, 858 So.2d 1266 Fla. 1st DCA 2003), and, the court held in Prince, is not permitted to attend by proxy through a videographer. “If the examination is recorded by her own attorney, she has control of it. To allow a stranger into the examining room to record the examination on behalf of one’s opponent, to be viewed and used as the opponent sees fit, is completely outside the operation of the rule.”

Finally, the court in Prince held that the video is entitled to work product protection unless the plaintiff decides to use it at trial.

Posted in Case Law Updates, July 2010 | Comments Off