I disagree.  Yes, there are homes where there is confirmed sinkhole activity and the damage could be left alone, without the need for expensive, complicated sinkhole repairs.  I say “so what.”  When you buy property insurance coverage, you buy a product to protect you, not the home.  If this home burns down, you know you have money coming for the loss of the house.  No one, I suggest, would demand that someone reconstruct their house after a fire, and attempt to withhold the insurance payments to the homeowners.  As such, why should sinkhole damaged homes be any different?

It’s your home.  It’s your money.  In many situations, repairing sinkhole houses makes no sense.  The insurance company charged you a product, which, as a result of your loss, is paid to you.  Now, your house is worth considerably less as it has a sinkhole beneath it.  The mere fact that some homeowners are deciding, for themselves, what is best for their family does not make the claim a scam, especially when the engineering firm retained by the insurance company is the company that found the sinkhole activity.

If there are scams, it is where unqualified experts, or qualified experts who use their position in an inappropriate manner to create sinkholes where there are none.  If these licensed professionals need to be put on a pyre, then I say do it.  But, if an insurance company responds to a claim, and the insured has a sinkhole by their own admission, I hardly see where this is something where we need to find legislative solutions  to limit homeowners access to their insurance coverage.

If you have a situation requiring legal representation for a sinkhole damage claim, contact Corless Zinober FL personal injury lawyers at 866-969-2889.

Common Questions about Surrogacy Contracts

Can the surrogate change her mind, and keep our child?

No.  Florida recognizes the gestational couple as the presumed parents of the child, as long as one of the commissioning parents shares genetic material with the child (i.e. either dad’s sperm or mom’s egg).  Most of the reports in the press about gestational parents losing their rights usually involve situations where the gestational surrogate is actually carrying the child of the commissioning father and is also the natural mother.  In those situations, things can get very complicated and unpredictable.

Does the surrogate mother always get the right to visit or see the child after it is born?  We do not like this idea, as we would like our privacy protected.

This is a matter of discussion between the commissioning couple and the gestational surrogate.  The rights and duties of the parties are spelled out in the contract, and if you do not want this to occur, you should make sure to include it.  I would say that absent a provision to the contrary, the commissioning couple has as much of a right to preclude another person from having access to their child as they would any other person.  In short, after the child is born, the gestational surrogate has no additional rights to the child.

Can a same-sex couple use a gestational surrogate contract?

It is difficult for a gay couple to conduct a gestational surrogacy under traditional legal principles, but not impossible.  In order for there to be a binding surrogacy contract, the commissioning couple must be legally married.  As same sex couples cannot marry in Florida, same sex couples are not entitled to seek the protections of the applicable Florida statutes.

Does the commissioning couple have to pay for all medical expenses for the pregnancy, including the cost of the pregnancy?

Usually no, if the gestational surrogate has her own health insurance available to her.  You would want to look at the subject insurance policy, but most insurance policies provide for coverage for a female giving birth to a child, even if she intends to permit the child to be adopted at some point later.  There is no “intent” element to health insurance, which would require you to keep the child as your own.  Ultimately, the child does not legally become the child of the commissioning couple until after the birth, which is after the child has been born and the expenses incurred.  Of course, you want to inquire with her health insurance company to determine whether any such limitations exist.

Can the commissioning couple be present during the delivery of the child?

This is a decision to be made between the gestational surrogate and the surrogate.  Most surrogates understand the importance of being present at the birth, and will usually consent to this.  The entire process is very personal, from the initial interview to the adoption hearing at the end.  The selection of a gestational surrogate often turns on how compatible she is with the commissioning parents and includes considerations such as these.

Will be a public knowledge that my child was born in this manner?

Generally, yes, but the Courts often will permit the commissioning couple of seal their records, upon good cause shown.

Can a close relative be used as a gestational surrogate?

The only requirement for a gestational surrogate is that she be 18 years of age.  Otherwise, any female can serve within this capacity, regardless of whether she is related or not.

If you have a situation requiring legal representation for a surrogacy contract, get your no-obligation consultation by contacting Corless Zinober FL  at 866-969-2889.

Originally, the idea of surrogate pregnancy arose from the use of a sperm from a male, combined with the egg of the surrogate, to produce a child from which the genetic mother would seek no relationship.  Prior to the modern development of in vitro fertilization, most couples used some form of guided insemination to impregnate the surrogate mother.  There were obvious limits on such relationships, as these would only be effective in resolving female-factor barriers to pregnancy (e.g. infertile mother), and also created possible legal conflicts in the event the surrogate changed her mind.  These kinds of arrangements suffered primarily due to a lack of legal structure, as most states would not take affirmative action to protect the original intent of the parties.

 Gestational Surrogacy

 With the advances in artificial reproductive technology, labs can remove the eggs and sperm of the parents, which creates a wide variety of scientific solutions to the various biological barriers to pregnancy.  Additionally, if the interest of the intended parents is to parent a genetically related child, the resulting blastocyst or embryo can be inserted in any willing participant, even if not the original parent.  In most of these situations, a gestational surrogate is commissioned to carry the embryo of the commissioning parents or a donor.  It may be the egg of the commissioning mother, for example, who may be able to get pregnant but not carry the child.  It may also be the biological father and a donor, with the intention of the biological father and his spouse will adopt the child.  These methods of gestational surrogacy also open up opportunities for same-sex couples, which are limited by law in their ability to adopt children under most states’ laws.

If you have a situation requiring legal representation for a surrogacy contract, get your no-obligation consultation by contacting Corless Zinober FL  at 866-969-2889.

Answer:  If I were answering your question twenty years ago, I would say that your former employer had a very good chance of preventing you from working for your new company.  However, almost twenty years ago, the courts significantly liberated the law from the perspective of the employee, and made it significantly more difficult for employers to enforce these “non-compete” agreements, which, in general, are considered a contract in restraint of trade.

Restraint on Trade

There are certain circumstances in which an employer can enforce these non-compete agreements.  However, a critical requirement, now, is that the employer provides the court with a legitimate business interest that the employer is protecting.  For example, if you have been exposed to certain trade secrets, or valuable confidential information that is generally not available to the public, the employer will likely have a legitimate business interest in protecting that trade secret of confidential information. 

Specialized Knowledge or Training

Similarly, enforcement is possible if the employer provided you with specific marketing or specialized training, which may also qualify as a protectable business interest.  However, the former employer will only be able to enforce the contractual restraint of trade to the extent that it is reasonably necessary to protect the legitimate business interest.  Thus, if you did not receive any specialized or extraordinary training by the former employer, if you were privy to any trade secrets or confidential information, and did not have access to confidential customer lists (and pricing information) that is not generally available to the general public, and was developed by the employer through significant expense, there is a good likelihood that you will not be prevented from working for the new employer.  It should also be noted that, if the employer attempts to bring a claim for injunctive relief (to prevent you from working for the new employer) you may be able to recover attorney’s fees if you are successful in defending the claim. 

Our advice to clients is to move strategically, and prepare your actions in advance.  You want to be able to demonstrate to the Court that you took no actions constituting any effort to steal from or injure your employer.
If you have a situation requiring legal representation, get your no-obligation, free case evaluation or contact Corless Zinober, Florida Trial Lawyers, at 866-969-2889.

Employee Theft

Answer:  The scenario that you have described gives rise to two different, but related causes of action.  The first is called conversion,  it must be established, by a preponderance of the evidence, that there is a specific and identifiable piece of property, and an unauthorized act which deprives you of the money that you are entitled to.  By law, you should make a demand to return the money, or establish that making such a demand would be fruitless, which is likely the case, here.  Additionally, however, you very likely also have a claim for civil theft, pursuant to Florida law.  Under this statute, you would be entitled to an award of treble damages, plus reasonable attorneys fees and court costs.  In order to make a claim for civil theft, however, it is required that you provide a resuit  notice to the bookkeeper, placing her on notice of the claim if she does not return the money. 

Fidelity Bond

Another consideration is whether you have procured a fidelity bond, previously, to insure yourself against such theft.  You should check with your insurance agent to determine if you have purchased such a bond.  Additionally, there may be other insurance available, under the right circumstance, such as a fiduciary bond, if the person who took the money (or her supervisor) was in a fiduciary relationship with the person or entity for whom the money was held (for example, if she was a bookkeeper for a union, or something of that respect).  Often, depending upon the circumstance, there may be other people or entities who may also be responsible for catching the theft, from whom a civil recovery may be made.  Finally, assuming the bookkeeper is prosecuted, you likely will have recourse in the criminal court context for restitution, often which is a condition of probation.

If you have a situation requiring legal representation get your no-obligation, free case evaluation or contact Corless Zinober, Florida Trial Lawyers, at 866-969-2889.

Beware Who You Hire

Answer:  In law, there is a doctrine known as negligent hiring  and  negligent retention.   Even if the store had never had a problem with this clerk before, if they knew or should have known of the sordid past of this employee, it can be liable for the claim of  negligent hiring.   If, on the other hand, the clerk had been charged with assault while he was working for the store, or even if he hadn’t been charged, but the store had reason to know of the dangerous nature of this person, the store can be liable for  negligent retention.  The key to the claim is the issue of forseeability.

Foreseeable Result by Toxic Employee

If it was completely unforeseeable that the clerk would respond violently to being challenged, the store, likely, would not be liable.  However, if, on the other hand, it was reasonably forseeable that this clerk would respond violently when being confronted, or, even worse, if it can be demonstrated that the clerk provoked your friend in order to create a violent confrontation, then the store can be held liable under these circumstances.

The reason for this is simple.  Companies must retain responsible people who later are invited into people’s homes, cars, or into other spheres where they could act badly.  When you hire a company to conduct a service for you, you should be able to reasonably expect that the people they engage are going to act appropriately, and not cause injuries to you our your family.  Otherwise, inviting a pizza delivery person into your home could pose a risk to your family, if the company who hired the driver did not do their due diligence before sending him out into the public.

If you have a situation requiring legal representation for a personal injury claim, contact Corless Zinober FL personal injury lawyers at 866-969-2889.

Liability for Injuries due to Negligent Security

In the area of premises liability and negligent security, the bar very likely has responsibility.  When it is forseeable that a bar’s patrons will use a parking lot, or another off premises location, the bar has a responsibility to make sure that reasonable security is provided, even on the off premises location.  Thus, the duty of a property owner is expanded to locations off his or her own property when it is forseeable that patrons will use this location to patronize his or her business.  Like any other claim based upon negligent security, an analysis must be made as to whether or not the crime was forseeable, the security in the bar (or outside of it, if necessary) was adequate based upon the forseeability of the crime, and whether or not the crime was preventable with adequate security.

Foreseeability is Key to Liability

Based upon the fact pattern that is provided, it appears that the crime was forseeable, if, as mentioned, these individuals had caused problems before.  It would then be up to a security expert to opine whether or not the security was adequate, and whether or not the crime (i.e. the battery on your son) was preventable with adequate security.  Assuming forseeability of crime can be established, security was inadequate, and the crime was preventable, it appears very likely that this tavern owner has breached a duty of care to your son.

If you have a situation requiring legal representation for injuries due to the negligence of others, contact Corless Zinober FL personal injury lawyers at 866-969-2889.

No Bad Faith – Yes to Breach of Contract

It is important, however, to note that the mere fact you can not sue Citizens “can’t fight city hall” does not mean you cannot sue them for traditional breach of contract on a denied or underpaid insurance claim.  The reason for this is that bad faith is a “tort,” or “civil wrong,” unlike a disputed insurance claim, where the claim is associated with the breach of a contract.  You can, in breach of contract cases, sue them just as you would sue any other insurance carrier.  A lot of people seeking sinkhole information are asking us about this, given that they are dealing with denied sinkhole claims or underpaid losses.  This is not a problem and can be prosecuted as any other case against an insurance company.

Moving from Citizens to Other Carriers

 The reality is that Citizens would generally prefer to lighten its load, and often “sells” its policies to new companies, commonly referred to as “take out” companies.  These companies sign up with Citizens to assume responsibility for policies, so that the State of Florida is not obligated under the policy.  Regardless, you pay a premium to Citizens or the other companies, and then entitled to rely upon the terms of the policy as you would with any other insurance company.

If you have a situation requiring legal representation for an insurance claim, contact Corless Zinober FL personal injury lawyers at 866-969-2889

Before drafting the contract, the parties must also meet other requirements.  It must be determined by a physician licensed under Chapter 458 (relates to medical doctors) or Chapter 459 (osteopaths) that one of the findings can be made: (a) the commissioning mother cannot physically gestate a pregnancy to term; (b) the gestation will cause a risk to the physical health of the commissioning mother; or (c) the gestation will cause a risk to the health of the fetus.  Once this determination can be made, the parties fall within the scope of the surrogacy laws.

When entering into the actual contract between the commissioning couple and the gestational surrogate, there is a broad spectrum of issues to be addressed, many of which are driven by the desires, interests, and beliefs of the parties involved.  Regardless, however, the following components must be included, or potentially face the unenforceability of the contract:

(a)  The commissioning couple agrees that the gestational surrogate shall be the sole source of consent with respect to clinical intervention and management of the pregnancy.

(b)  The gestational surrogate agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health.

(c)  Except as provided in paragraph (e), the gestational surrogate agrees to relinquish any parental rights upon the child’s birth and to proceed with the judicial proceedings prescribed under s. 742.16.

(d)  Except as provided in paragraph (e), the commissioning couple agrees to accept custody of and to assume full parental rights and responsibilities for the child immediately upon the child’s birth, regardless of any impairment of the child.

(e)  The gestational surrogate agrees to assume parental rights and responsibilities for the child born to her if it is determined that neither member of the commissioning couple is the genetic parent of the child.

Importantly, as part of the contract, the commissioning couple may agree to pay only reasonable living, legal, medical, psychological, and psychiatric expenses of the gestational surrogate that are directly related to prenatal, intrapartal, and postpartal periods.  In essence, this provision precludes families from “buying” a child born from a gestational surrogacy, and will only allow them to pay the actual expenses incurred by the gestational surrogate.

For example, a homeowner buys a house on January 1st and is insured with Insurance Company A until July 1st when the homeowner decides to switch to Insurance Company B.  If the homeowners policy with Company A was an occurrence policy, damage the homeowner noticed in May but for which he did not decide to file a claim until August would still be covered under Company A’s policy. 

It is important that the homeowner is aware of the types of policies they hold and have held in order to avail themselves of the protections and coverages those policies provide.  It is not uncommon for the insurance companies to dispute coverage based upon timing of the loss.  The homeowner must be able to assert when the damage was first noticed.  After the homeowner is able to make this determination, the question then becomes which insurance policy was in effect at the time of the loss.  Provided the insured hasn’t run afoul of any time limitations contained within the contract for making a claim, once the claim is made, the burden then shifts to the insurance company to assert that some exclusion within the policy applies before they may deny the claim.

If you have a situation requiring legal representation for an insurance claim, contact Corless Zinober FL personal injury lawyers at 866-969-2889