The recent case of Allen v. Montalvan, before Florida’s Fourth District Court of Appeal, shows what can happen when both sides – even when acting in good faith – fail to take this crucial step to ensure that a car accident settlement agreement is legally binding.

According to court records, plaintiffs – three minor children – were among six total people in a vehicle struck by defendant motorist (driving a vehicle owned by his wife, also a defendant). The person driving the vehicle was their grandmother. Their mother was also in the vehicle, as was an uncle. Tragically, the grandmother was killed in the crash. They, their mother and their uncle suffered varying degrees of injury.

Several days after the crash, the mother of the children sought legal advice and filed a claim for damages from the defendant driver’s insurer. The insurance company, rather than turn this into a long, protracted legal battle (as so often happens), agreed to tender the full policy limits.

The policy allowed for $25,000 per person and up to $50,000 per car accident. The mother, as representative of the grandmother’s estate, agreed to settle that claim for the per-person limit of $25,000. The remaining $25,000, as far as the insurance company understood, would go to settle all remaining claims for the other five people involved – including the three children. The insurer did not ask – and plaintiff attorney did not immediately stipulate – how much of that $25,000 was to go to the children. Neither did either side ensure the children’s interests were represented by a guardian ad litem, as required per F.S. 744.

Later, the attorney submitted notice to the insurer that the amount allocated to the children was $0, while the amount allocated to the mother and uncle was $25,000 total.

Mother later retained a different attorney who sought compensation for the children as a result of the crash.

Defendant’s auto insurance company intervened and argued the claims were barred as a result of the settlement, which was intended to resolve all pending claims. Plaintiff’s former attorney said his understanding was not that the settlement had settled all pending claims, but rather that it was a tendering of the full policy limits.

Mother argued this was a matter for a jury to decide. However, trial court determined the parties had a binding agreement and that the $50,000 settlement agreement resolved all claims.

Mother appealed and the 4th DCA reversed. In reaching this conclusion, the court pointed to F.S. 744.3025(1)(b), in which it is required that the court “shall appoint” a guardian ad litem to represent a minor’s interest before approval of a settlement of a minor’s claim in any case where the gross settlement amount meets or exceeds $50,000. Defendant insurer argued that the $25,000 allocated to the grandmother’s estate should not be included this $50,000 figure. That would mean the $25,000 earmarked for the remaining passengers wouldn’t meet the criteria necessary to ensure the interests of the children were furthered by an appointed guardian ad litem.

The appeals court disagreed.

Florida rules of evidence and prior case law supported the notion that in this instance, the gross settlement amount met the $50,000 threshold criteria.

The case has been remanded to the lower court for further proceeding.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Allen v. Montalvan, June 22, 2016, FL 4th DCA

More Blog Entries:

Tire Tread Blamed in Florida Car Accident That Killed Four Sisters, June 14, 2016, Miami Car Accident Lawyer Blog

The $5,000.00 “civil penalty” has been ruled unconstitutional in some jurisdictions, but not others.  Therefore, the issue is now before the 2^nd District Court of Appeal that will ultimately decide the issue.  It was thought a decision would be forthcoming soon, but the Court requested additional argument about the issues so it will probably be some time before the issue is ultimately decided.  In the meantime, you may need to preserve this issue so you may not have to pay that penalty if you plea to the charge or are found guilty at trial.

There are many defenses to Solicitation for Lewdness/Prostitution of cases such as:

• Is what the arrested person did actually a crime?
• Did the accused agree to a legal act such as a massage?
• Did the police conduct the investigation correctly?
• Did the officers preserve all the evidence?
• Did the police entrap the person into committing  acrime?

I have handled numerous cases originating from these sting operations in Polk County and argued that the $5,000.00 penalty is unconstitutional.  I have also tried these types of cases.  If you have been arrested in this sting, call a criminal attorney that has experience and knows how to defend you against these charges.

Call Now (727) 457-8660

Thomas C. Grajek
Attorney at Law
24140 State Road 54, Suite E

Lutz, FL 33559

(next to Ferman Chrysler Jeep)

While there, a person who was just arrested for DUI was trying to “waive” their right to a Formal Review and apply for a hardship license for the entire period of suspension.  In a breath test refusal case, this suspension is one (1) year.  In an unlawful breath (driver blew over 0.08 legal limit) case, the suspension is six (6) months.  This allows a 1^st time DUI driver to keep some form of a license during the entire DUI ordeal.  If you request a Formal Review, fight the suspension, and lose, there is a 90 day “hard” suspension in refusal cases and a 30 day “hard” suspension in unlawful breath cases.

In order to be eligible for the hardship license, you must waive your right to a Formal Review.  I have attached the form to this post for your convenience.  You also MUST enroll in DUI school.  PREVIOUSLY, a driver ONLY had to present proof that they paid for DUI school (receipt).

THIS HAS NOW CHANGED! 

YOU MUST NOW ACTUALLY SIT DOWN WITH A COUNSELOR AND GET YOUR DUI CLASS SCHEDULE AND PRESENT THAT TO THE DHSMV Bureau of Administrative Reviews at 2814 E. Hillsborough Ave., Tampa, FL 33610.

You must also pay an application fee of $25.00 and explain to a hearing officer why you are in need of a license.

FINALLY, ALL THIS MUST BE DONE WITHIN 10 DAYS!

If you have been arrested for DUI, call an experienced DUI attorney that is a member of DUIDLA and NCDD!

Thomas C. Grajek

POLK                                                 TAMPA                                             PASCO

206 Easton Dr. Suite 102                   1910 Orient Rd.                                  24140 State Road 54 Suite E

Lakeland FL 33803                            Tampa, FL 33610                                Lutz FL 33559

(863) 838-5549                                  (813) 789-6404                                   (727) 457-8660

DMV waiver of formal review hearing form

NCDD

http://www.flcrimedefense.com/2015/05/florida-couple-found-guilty-of-sex-on-the-beach-and-now-will-be-classified-as-sexual-offenders-and-face-prison-time/

Bay News 9 is reporting that the prosecutor is only seeking 2 1/2 years in prison for the male involved in the case.  If the judge agrees to mitigate Jose Caballero’s sentence to that prison sentence, it will be a hug break for him as he is facing a mandatory 15 years in prison.  The State can agree to mitigate the sentence which is one of the few ways to legally mitigate a Florida Mandatory Minimum penalty.  The Bay News 9 story can be found at:

http://www.baynews9.com/content/news/baynews9/news/article.html/content/news/articles/bn9/2015/7/6/state_seeks_2_1_2_ye.html

The 21 year old female, Elissa Alvarez, was sentence to time served.  anytime an individual is sentenced to “time-served” for a crime that person is “Adjudicated Guilty” which means they are convicted of the offense.  This makes Ms. Alvarez a convicted felon.  Both are now sex offenders and must register and face the onerous conditions placed on sex offenders in Florida or even another state if they move.  In addition, Ms. Alavarez is prevented from sealing or expunging any other criminal record due to the adjudication.  This charge, “lewd and lascivious battery in the presence of a minor” is not an offense that can be sealed under Florida law even if the judge “withheld adjudication”.

If you have been arrested for a sexual offense, call an experienced sex crimes attorney.

Thomas C. Grajek

POLK                                                 TAMPA                                             PASCO

206 Easton Dr. Suite 102                   1910 Orient Rd.                                  24140 State Road 54 Suite E

Lakeland FL 33803                            Tampa, FL 33610                                Lutz FL 33559

(863) 838-5549                                  (813) 789-6404                                   (727) 457-8660

Unfortunately, I get many calls months AFTER the individual pled out and now it’s too late to help them.  Today, someone called asking me how much I charge to expunge a record.  However, that person went to court with a Public Defender who did not handle the case correctly and the person was Adjudicated Guilty.  The Public Defender did not negotiate or argue for a Withhold of Adjudication.  Because of this very important part of the criminal sentencing, this person is NOT ELIGIBLE TO SEAL OR EXPUNGE ANY CRIMINAL RECORD!  Even though this defendant had never been in trouble before, he was convicted.  This is just one reason why you need an experienced criminal defense attorney to represent you.  This person is now having trouble finding a job because this arrest keeps coming up in background checks.  Public Defenders work hard, but they are often new, inexperienced attorneys that are learning on the job which means they are learning on your case!  Their mistakes can cause you a lifetime of problems.

What are some of the important things you need to know BEFORE you go to court?  Call now to discuss your case with me BEFORE you go to court!

CALL NOW AND SPEAK TO AN EXPERIENCED, AGGRESSIVE CRIMINAL DEFENSE LAWYER.

CALL AND SET YOUR FREE OFFICE CONSULTATION NOW! 

 THOMAS C. GRAJEK  

 POLK                                                 TAMPA                                             PASCO

206 Easton Dr. Suite 102                   1910 Orient Rd.                                  24140 State Road 54

Lakeland FL 33803                            Tampa, FL 33610                                Lutz FL 33559

(863) 838-5549                                  (813) 789-6404                                   (727) 457-8660

What are they?

Automatic restraining orders are a set of 4 orders that goes into place upon the filing and service of the initial Summons (on the back of the FL-110 Summons form), which is part of initial divorce filing paperwork at the beginning of divorce cases in California.

The word “automatic” is self-explanatory in the terms that none of the spouse has to actually seek these orders. When either one of the spouse goes into the family law court and files a divorce Petition, the temporary restraining orders automatically come into effect and bind the Petitioner. When the divorce notice is served to the other spouse (the Respondent), the orders bind that spouse as well.

These are basically a few measures that are meant to protect the children and the marital property from any kind of malicious action by either spouse. These can be referred to as orders that keep the status quo intact.

What are they for?

The 4 Automatic restraining orders:

·         Make sure that the children aren’t taken out of California

These temporary restraining orders clearly instruct the father and the mother to make sure that they don’t take, send or allow their children to leave the State of California. It also asks the parents to refrain from applying for or renewing for new passports of the child unless the matter is decided by the court.

·         Stop the parties from selling or disposing of community or separate property during the divorce

The order clearly tells both of the spouses that they are not allowed to in any way, transfer, encumber, conceal, dispose or hypothecate the property in any way regardless of whether it is real, personal, quasi community, community or separate until the court has ordered and allowed them on the matter.

·         Restrain some insurance-related actions

The courts are clear in making the spouses know of their inability under the law to cash, cancel, borrow or transfer or even change the beneficiary of any insurance policy or coverage unless the matter is not brought under the courts consideration and the court doesn’t act on it.  It also prevents a party from cancelling medical and other types of insurance coverage during the divorce.

Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.

The Social Security Disability Benefits Reform Act of 1984 (“DBRA 1984”) was passed by a unanimous, bipartisan vote in the House and Senate (99-0) in September 1984. President Reagan signed the law on October 9, 1984, when it became Pub. L. No. 98-460. One of the main provisions required “medical improvement” before benefits could be terminated where years prior SSA was arbitrarily terminating benefits under false medical assumptions, specifically of those claimant’s with mental disabilities.

The Medical Improvement Review Standard:

Under Section 2(a) of DBRA 1984 sets forth the medical improvement review standard (MIRS): SSA shall terminate disability benefits only if such finding is supported by substantial evidence which demonstrates that there has been any medical improvement in the individual’s impairment or combination of impairments (other than medical improvement which is not related to the individual’s ability to work), and the individual is now able to engage in substantial gainful activity. 42 USC sections 423(f)(1) and 1382c(a)(4)(A). ”Medical improvement” is any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. 20 CFR sections 404.1594 and 416.994. SSA will only consider the impairments that the individual had at the time of the last disability decision, and not those which have developed since that time. However, SSA will consider any new impairments when it assesses whether the person is now able to engage in substantial gainful activity (assuming medical improvement of prior impairment(s) is found) under the second prong of the statutory standard. SSA will find that there has been medical improvement if only one impairment has improved, even if another impairment(s) present at the time of the most recent favorable decision has worsened. There are exceptions such as fraud where SSA can immediately terminate benefits and where SSA finds and obvious error, such as the misapplication of the rules, missing evidence, etc., SSA may “reopen” the matter for further adjudication.

As a claimant who was awarded benefits it is important, not only for your personal well being to see your treating doctors regularly, but to understand that you will be reviewed via SSA. No medical treatment usually equals “medical improvement”. If a “cessation of benefits” does occur you should immediately seek an experienced attorney.

David W. Magann, Esq.

USMC Veteran

David W. Magann, P. A.  Attorneys at Law Phone: 813-657-9175    156 W. Robertson St., Brandon, FL  33511

www.DavidWMagann.com Lakeland Ph.: 863-802-8060

The post SSA is Ramping Up Disability Reviews in 2014 first appeared on SEONewsWire.net.]]> http://www.seonewswire.net/2014/03/lakeland-dui-attorney-thomas-c-grajek-attends-national-dui-seminar-focusing-on-forensic-evidence/ Thu, 27 Mar 2014 00:51:39 +0000 http://www.seonewswire.net/2014/03/lakeland-dui-attorney-thomas-c-grajek-attends-national-dui-seminar-focusing-on-forensic-evidence/ In order to insure that my clients receive the most aggressive defense to their DUI case, I recently attended a DUI seminar put on by the National College for DUI Defense in association with the Texas Criminal Defense Lawyers Association.…

In order to insure that my clients receive the most aggressive defense to their DUI case, I recently attended a DUI seminar put on by the National College for DUI Defense in association with the Texas Criminal Defense Lawyers Association.  This seminar focused on all aspects of DUI defense, the latest case law regarding DUI arrests, and DUI blood cases.  Knowing the latest information and problems associated with blood collection, analysis, and problems with the forensic  lab conducting the analysis is especially important in DUI with Serious Bodily Injury or DUI Manslaughter cases in Florida.

One of the most interesting parts of the seminar was a mock trial that was conducted from an actual case.  The jury deliberations were monitored by audio and video so that I could see exactly how a jury comes to their decision in a DUI case.  The insight gained from this part of the seminar was invaluable to a DUI. defense lawyer.

In addition to the mock trial, nationally and internationally known experts spoke on all phases of a DUI case.  Even A.W. Jones the leading researcher and expert in alcohol and its effects on the human body spoke at the DUI conference.

If you have been arrested for DUI, retain the only DUI attorney in Polk County, FL for your case that is a proud member of the National College for DUI Defense (NCDD).

Retain an DUI attorney who is experienced at handling DUI’s and located in Polk county in order to get the best defense and the best result to your driving under the influence case.

 DON‘T HESITATE!!!   PROTECT YOUR RIGHTS!!! 

CALL POLK COUNTY DUI ATTORNEY THOMAS C. GRAJEK NOW !!!

 863-838-5549 cell

 Because you only have 10 days to request a Formal Review or get a hardship license!

NCDD

 

The post Lakeland DUI attorney Thomas C. Grajek attends national DUI seminar focusing on forensic evidence. first appeared on SEONewsWire.net.]]>

On Monday, July 15, John Bourn was killed when his pickup truck slammed into the center of a tractor trailer. The truck, operated by transportation giant Werner Enterprises, was leaving a Citgo gas station at Hwy 27 and Penny Loop near Lake Wales, FL. As the truck attempted to cross the northbound lanes of Hwy 27, its trailer was completely blocking the northbound travel lanes, leaving Mr. Bourn without any reasonable way to avoid crashing into the trailer.

The initial crash caused a chain reaction pileup that ultimately involved 4 vehicles, including those driven by 61-year-old Emily Mills and 75-year-old Elizabeth Levy. It is unknown at this time if Ms. Mills or Ms. Levy were injured in the crash.

Mr. Bourn’s death, and the possible injuries of Ms. Mills and Ms. Levy, could have been avoided if the Werner drivers had heeded two important safety concerns. One, it is always the duty of a driver entering a roadway to give way to oncoming traffic, and to not enter into the travel lanes without ensuring that oncoming traffic is either not present, or that the oncoming traffic can stop in an assured clear distance if necessary. Too often it is the case that truck drivers simply swing their rigs out into traffic, blocking the roadway, and expecting that oncoming traffic will be able to yield in time.

Two, early reports show that the Werner truck drivers were a “tag team” of an experienced driver trainer, and an apprentice driver. While it is not known which driver was behind the wheel of the Werner rig at the time of the crash, chances are high that it was the apprentice driver, who didn’t have experience in piloting a fully loaded tractor trailer into a busy multi-lane highway. Fully loaded trucks simply don’t move as fast as one might expect, and it takes some getting used to the fact of having a 53 foot trailer behind your truck. Trucking concerns like Werner need to ensure that drivers are adequately trained prior to letting them get into situations like this.

The Lietz Law Firm has successfully litigated tractor trailer crashes where trucks have entered roadways into oncoming traffic, with their trailers blocking the road. We have also previously handled cases involving Werner Transportation.

If you are found guilty or plea guilty or “no contest” to the charge of DUI, you must complete DUI school in order to get a hardship license or reinstate your full driving privileges.  The majority of drivers who plea to a reduced charge of Reckless Driving with Alcohol as a Factor also have to complete DUI School as part of their sentence.

You may sign up for DUI School in the county you were arrested or the county you reside in if you live outside Polk County.  For those arrested for DUI that enroll in Polk, the DUI School is run by Tri-County Services.  Tri-County offers these services at the following locations:

• Lakeland – 5421 U.S. Highway 98, South, Highland City
• Winter Haven – 41 3rd Street S.W.
• Avon Park – 100 W. College Dr.
• Wauchula – 202 S. 9th Avenue

The fees are:

• Level I fee is $255.45 ($242.50 + $5.95 cc fee + $7.00 convenience fee for online enrollment).
• Level II fee is $377.50 ($377.50 + $5.95 cc fee + $7.00 convenience fee for online enrollment).

The majority of 1st time offenders will need to complete Level I DUI School.

In order to enroll, you will need the following documents:

• Readable Copy of the DUI Arrest Report/Probable Cause report – this can be obtained from the agency that arrested you or from your attorney. A crash report alone is not sufficient unless you were taken from the scene in an ambulance and received a DUI ticket later. If you were arrested by the Polk County Sheriff’s Office, please mention this when you call to set your appointment.
• Lifetime driving history. A Florida history can be obtained from any Florida Clerk of Court office (or the DUI office – $14.00) and must be obtained even if you have never had a Florida driver license (cannot be more than 30 days old when you come to complete registration). If you have held a license in another state, you may be asked to obtain a driving history from that state also.
• Court Order if you have completed the court process.
• Picture id.

Time is of the essence in a DUI case. 

You only have 10 days to request a Formal Review of the “Implied Consent” suspension of your license so call my cell now.

Aggressive Polk DUI attorney Thomas C. Grajek

863-838-5549 cell

Aggressive DUI attorney handling all DUI arrests in Florida and Polk County, including Bartow, Lakeland, Winter Haven, Mulberry, Haines City, Auburndale, and Lake Wales.

Below is information and links that you need for your Polk DUI arrest.

I was asked to explain what happens in the criminal  court system.  This was a really great class of students.  We covered the entire process from arrest through an appeal of a criminal conviction.  Some of the topics we covered are:

• What if the police do not read me my rights?
• Do I have to talk to the police?
• Why should I talk to a criminal defense attorney before I talk to the police?
• I’m guilty, is there anything a criminal lawyer can do for me?
• Do I have to take the breath test?
• What happens if I refuse the breath test or field sobriety tests?
• Should I consent to the police searching me? my car? or my house?
• What happens after I am arrested?
• What must be done immediately after I have been arrested?
• What is a Pre-Trial Release program?
• What does the “intake division” do at the prosecutor’s office? How does having an aggressive attorney help a defendant?
• Will I go to jail? Prison?
• What is a “diversion program”?  How do diversion programs work?
• What is an Arraignment?
• Does a defendant have to go to all the court dates?
• What is a Motion to Suppress?
• How do I get my police reports? What is a “Demand for Discovery”?
• How are pleas in criminal cases negotiated?
• What is a “Motion to Suppress”?  What is the procedure to file a motion?
• Why is jury selection so important in my criminal jury trial?  Does  having an experienced lawyer matter?
• How do you cross-examine a witness or a police officer?
• How does a lawyer prepare and make a persuasive closing argument?
• What do DUI videos look like?  What other types of evidence is there in criminal cases?
• What is an appeal? How do appeals work?
• What is the jurisdiction of Florida courts and what types of cases does each court handle?

These are common questions that most people have after they have been arrested.  If you want answers to these questions call me and set your free consultation.

CALL AN AGGRESSIVE POLK LAWYER THAT IS NOT AFRAID TO STAND UP IN COURT AND FIGHT FOR YOU

 Thomas C. Grajek  863-688-4606

Aggressive DUI, DRUG and SEX CRIME attorney representing all individuals arrested in Florida and Polk County, Florida.  Office – Lakeland, FL.

In this case, the suspect was walking home when the police asked for her license which she complied instead of walking away.  This made the initial encounter with police a “consensual encounter.”  She could have walked away and should have as the police officer had no reasonable suspicion or probable cause to detain the citizen.  The citizen told the police she was walking home and trying to avoid the crazy traffic which was a reasonable explanation for her behavior.  The cop took her license and ran a warrants check which came back clean.  However, the police officer DID NOT give the defendant her license back, but instead asked for consent to search her.  The appellate court ruled that under the circumstances of this case, by not returning the license to the citizen, that the stop became a seizure.  The officer also did not tell her she was free to leave.  This unlawful seizure resulted invalidated the defendant’s consent to the search.  Therefore, the 2nd DCA ruled that the consent was not freely and voluntarily given and the evidence should be suppressed.

What does that mean when the court grants a motion to suppress evidence?  That means that the sheriff, police, or law enforcement violated the defendant’s constitutional rights.  The police had no right to search.  So, any evidence seized or collected is thrown out of court.  In his case, that means the controlled substance seized from the defendant can not be used in court against her.  The prosecutor must prove that the accused possessed an illegal drug, but with no drug to present to a jury, the criminal charges must be dismissed.

If you have been arrested because the police stopped and searched you, you may have a defense to the charge.  The police may have violated your rights.  You may have a Motion to Suppress that could get your criminal charges dismissed!

Call Thomas C. Grajek, an experienced Polk County criminal defense lawyer who keeps up to date on the latest case law that can help you when facing a serious felony or misdemeanor criminal charge.

CALL AND SET YOUR FREE OFFICE CONSULTATION NOW! 

Office – Lakeland, FL

Thomas C. Grajek  863-688-4606

The legal limit has been lowered over the years. Initially, the DUI breath test limit was 0.15 in 1941. It was later reduced to 0.12, then 0.10, and now the 0.08 that is the law in Florida DUI cases. The 0.05 limit is used in Europe which is a much less car-centric society. As a DUI defense attorney, I rarely see cases where the driver has a breath test under 0.08. A person must be arrested for DUI before a breath test can be requested. The police do no “unarrest’ you if you blow under the legal limit and these DUI cases are still prosecuted in court. They are difficult DUI cases to prove obviously and many times are dismissed or reduced to lesser charges. Therefore, it is clear that this law would only affect social drinkers who are not a problem or hazard on the road. That’s why a driver is presumed to not be impaired by alcohol when they have such a low blood alcohol level.

DUI is a very serious crime and can have devastating outcomes when a person drives impaired and there is an accident. DUI Manslaughter or DUI causing Serious Bodily Injury can result in substantial prison terms. I do not think lowering the limit will dramatically cut down on alcohol impaired deaths. Even safety groups like Mothers Against Drunk Driving and AAA declined to endorse the NTSB’s call for a 0.05 threshold.

If you have been arrested for DUI, call and speak to an aggressive Polk County DUI defense attorney. Always make sure that the DUI lawyer you retain is actually located in Polk county and will go to court with you and not send an associate. Get someone working on your DUI case now because it can make a difference in the outcome of your criminal case!

DON’T HESITATE!!! CALL NOW!!!
PROTECT YOUR RIGHTS!!!

CALL THOMAS C. GRAJEK, POLK COUNTY DUI ATTORNEY

CALL NOW 863-838-5549 cell

Aggressive Polk DUI defense attorney handling all DUI arrests, DUI Manslaughter, and DUI with Serious Bodily Injury in Polk county, FL.