Florida Personal Injury Lawyers Blog

August 23, 2019

Hundreds of Assisted Living Facilities in Florida Still Don’t Meet Post-Irma Requirements

by Whittel & Melton, LLC

More than a year ago, a new state law went into effect requiring nursing homes and assisted living centers to have emergency power plans, backup generators and enough fuel in place to run those generators for four days.

A News 6 investigation has uncovered modifications to the law that are allowing facilities to keep smaller amounts of fuel onsite in case of an emergency.

According to a spokesperson for the Florida Agency for Health Care Administration, the rules state all facilities must have a plan to acquire a minimum of 96 hours of fuel in the event of an emergency situation, but they do not have to have that much on site.

The rules now state a nursing home must store a minimum of 72 hours of fuel onsite.

As for assisted living facilities, a facility with a licensed capacity of 16 beds or fewer must store 48 hours of fuel on site whereas a facility with a licensed capacity of 17 or more beds must store 72 hours of fuel onsite.

In November 2017 when ACHA and DOEA filed new proposed rules with the Department of State to create permanent nursing home and ALF rules. In December 2017, these rules were sent to the Legislature for ratification. Manderfield states the emergency rules were then extended/renewed while the two agencies awaited ratification by the Legislature, and both rules were ratified by the Legislature and approved by the governor on March 26, 2018 .

The new emergency power plan law went into effect after Hurricane Irma, when a dozen nursing home residents died in Hollywood Hills.

The nursing home they were staying in lost power for days following the September 2017 storm, creating hot temperatures and dangerous conditions inside the facility.

But despite the urgency presented by then-Gov. Rick Scott, who demanded the creation of safer conditions for the state’s most vulnerable residents, News 6 has found that there are some Central Florida facilities that still do not have backup generators or other crucial power equipment in place, despite having more than a year to do so.

News 6 visited three of the more than 3,000 assisted living facilities currently licensed in the state to see which ones had their emergency power plans and equipment in place. Only one of them did: Alabama Oaks of Winter Park.

In April, News 6 visited Oasis National Assisted Living Facility in Apopka and was shown the facility’s written emergency power plan and new generator that was recently installed in the backyard. But the staff admitted they were still waiting for a transfer switch to go in. Recent calls to check if the transfer switch has been installed have gone unanswered.

That same month, News 6 also checked with the administrator at Excellence Senior Living in Orlando, who confirmed the 185-bed facility was still missing the permanent backup generator administrators had ordered, but has been approved for an extension. So that means even though the generator is not in place, the facility is not violating state law.

According to AHCA, 100% of the state’s nursing homes and almost 98% of the state’s assisted living facilities are in compliance with the new state law, but that just means they submitted an emergency power plan or extension, not that they have all the equipment in place. Some facilities have even received two or more extensions.

According to Florida law, there is no limit regarding variance requests or duration. The agency is evaluating extension requests on a case-by-case basis to ensure appropriate timelines for compliance and safety measures are in place.

There are currently 248 nursing homes and 2,328 assisted living facilities that have reported fully implemented generators.

The plan implementation and verification at facilities is ongoing, with 284 surveyors making onsite visits and inspections across the state.

As facilities implement their power plan initiatives, their information can be found on FloridaHealthFinder.gov.

According to News 6, Orange County’s Office of Emergency Management and the agency confirms it has approved plans for 82 assisted living facilities in its jurisdiction, and requested 11 ALFs to resubmit their plans. A county spokesperson confirms six ALFs have not submitted plans and the agency has notified AHCA. Orange County Emergency Management personnel are required to approve the emergency power plans, but the submission of approval letter to AHCA is the responsibility of the provider.

It is up to the state to confirm facilities are following their plan and AHCA is ultimately responsible for licensing the facilities.

So, what can you do to make sure your loved one is safe and that their facility has a plan and proper equipment in place?

Visit the facility in person unannounced.
Ask to see the emergency power plan booklet; it should be in an easy-to-access location.
Ask to see where the generator and fuel source are stored.
Ask staff if they have been trained on the power plans and how to use the equipment.
Check the AHCA website for a list of nursing homes in which facilities have been approved for an extension or multiple extensions.

A good facility will have no problem providing family members with their emergency plan and power plan safety measures. If you run across a facility that does, that is a big red flag that something is askew.

Nursing homes and assisted living facilities are legally obligated to properly care for every patient/resident in their care 24/7. This means that even during a hurricane they must provide appropriate medical care. If the facility is not prepared for severe weather like a hurricane or tropical storm, residents can suffer serious personal injuries and even wrongful death. Any residents or family members of loved ones who have suffered injuries in a nursing home or assisted living facility have the right to take legal action against a facility who acted negligently by not being prepared. Our Florida Nursing Home Negligence Attorneys at Whittel & Melton can investigate the nursing home or assisted living facility in question to determine if they are liable for any wrongful actions.

We are happy to help injured nursing home and assisted living facility residents, as well as surviving family members, recover financial compensation to cover damages such as medical expenses, therapy, rehabilitative care, and even wrongful death expenses. We will first launch an investigation into the nursing home or assisted living facility’s policies and practices to determine if negligence caused a resident to suffer harm. Once we conclude our investigation we can possibly take further action through a personal injury or wrongful death lawsuit.

August 22, 2019

New Florida Bill Aims to Outlaw All Forms of Distracted Driving

by Whittel & Melton, LLC

A new bill in Florida could ban drivers from putting on makeup, holding a cellphone, reading or performing other distracting activities.

This falls under a new bill unanimously approved by a Senate committee Wednesday.

The Senate Innovation, Industry and Technology Committee approved the measure after heart-wrenching testimony from parents whose children have been killed in accidents caused by distracted drivers.

Republican Sen. Wilton Simpson said distracted driving has become an epidemic in Florida, and not just involving cars hitting other cars.

“Bike riding, hiking, jogging — all of those things — we’ve had record numbers of deaths in this state by distracted driving,” Simpson said.

As it stands now, it is illegal to text and drive in Florida, but drivers can only be ticketed if they are first pulled over for another reason. Simpson’s bill would make distracted driving a primary offense, meaning law enforcement wouldn’t need another reason to ticket a driver. If enacted, Florida would ease into the law by creating a three-month period where law enforcement would only give warnings. After Dec. 1, police would be able to issue tickets.

Hands-free cell phone use would be allowed, and drivers would be able to check their phones as long as their cars aren’t moving, such as at a stop light or while idling in a parking lot.

Law enforcement officers would also have to record the race and ethnicity of ticketed drivers and an annual report would have to be given to the governor, House speaker and Senate president. Democratic Sen. Randolph Bracy asked for that provision to be included due to concerns that a distracted driving ban could be used for racial profiling.

Several parents who lost children in accidents urged the committee to approve the bill.

The Senate bill has been unanimously approved in its first two of four committee stops. A similar House bill hasn’t been heard in committee yet, but House sponsor Rep. Jackie Toledo said House Speaker Jose Oliva has promised it will get a hearing.

It is really no exaggeration to say that distracted driving is an epidemic, and not just in Florida, but throughout the U.S. With advancements in technology, we have seen an exponential increase in the number of drivers distracted by talking, texting or surfing the Internet while operating a car or truck. If you or a loved one has been injured in a distracted driving accident, our Florida Auto Accident Attorneys at Whittel & Melton can help.

Distracted driving kills. Distracted driving resulted in 3,166 deaths in 2017, according to the National Highway Traffic Safety Administration (NHTSA). Despite these alarming statistics, people throughout the state and country, especially the youngest and most inexperienced drivers, continue to endanger themselves, their passengers and other drivers sharing the roads by talking or texting while driving.

As car accident attorneys in Florida, we have seen far too many cases of serious injuries and death caused by distracted drivers. We are more than familiar with how to pursue claims for these injuries and deaths. We fight aggressively against negligent drivers and insurance companies that refuse to offer fair compensation for damages. While we strive to settle these cases through skilled negotiations, we are not afraid to take your case to trial if necessary.

Distracted driving is defined as any action that can take a person’s attention away from the primary task of driving. Text messaging is known as the most dangerous distraction, but there are others, such as:

Talking on a cell phone

Eating and drinking
Interacting with passengers
Personal grooming, like applying makeup
Reading, including maps
Watching videos
Adjusting a radio or other audio player
Using a navigation system

August 12, 2019

Nationwide Sexual Abuse Lawsuit Against Boy Scouts Uncovers New Allegations

by Whittel & Melton, LLC

Attorneys that have brought a lawsuit against the Boy Scouts of America have released statements that they have turned up allegations of sexual abuse against more than 350 people not previously identified in files released by the organization.

Lawyers with the Abused in Scouting group filed a lawsuit Monday in Philadelphia Common Pleas Court, alleging a one-time scout leader sexually abused a minor identified only by initials.

The suit claims that the abuse of the then-12- or 13-year-old victim by an assistant scout leader started around 1974 or 1975 and continued until about 1980.

It also alleges that the lawyers received other accusations of abuse from their clients against more than 350 people involved with the scouts who had not previously been named.

The Irving, Texas-based scouts compiled so-called ineligible volunteer files for years on people considered to pose a risk of abuse, and about 5,000 of these files have been made public as a result of court action.

Monday’s suit is claiming that the lawyers now have hundreds of names that were not in those public files. It does not list the names.

The lawsuit states that the Boy Scouts Defendants are attempting to hide the true nature of their cover-up and the long running pedophilia epidemic within their organizations.

The lawsuit comes as states have begun changing their statutes of limitations to make it easier for long-ago victims of sexual assault can seek damages in court.

The Boy Scouts have said previously that when any volunteer is added to the database for suspected abuse, “they are reported to law enforcement, removed entirely from any Scouting and prohibited from rejoining anywhere.”

The sexual abuse settlements have begun to strain the Boy Scouts’ finances to the point where the organization has said it’s exploring “all available options,” including Chapter 11 bankruptcy.

The Boy Scouts of America are one of the largest organizations for youth across the United States. The Boy Scouts have nearly 2.1 million youth participants as well as 1 million adults who support the programming by offering their time as volunteers.

The Boy Scouts of America is supposed to be a safe place for youth to learn, play and socialize, but leaders and mentors are not always the trusted mentors they are supposed to be. As this lawsuit points out, sadly, not all adults affiliated with the Boy Scouts have acted in a lawful and appropriate manner. Allegations of abuse run rampant among this association and has wreaked havoc on the lives of young boys throughout the United States. When sexual abuse occurs, a civil lawsuit can help victims and their families heal while providing the resources to get the help that may be needed.

When it comes to allegations of sexual abuse of a young boy in the Boy Scouts, the abuser is not the only person that can be held accountable in a civil lawsuit. The Boy Scouts as an organization will have to bear responsibility when it comes to injuries and damages suffered by a child in the Boy Scouts at the hands of an adult who is affiliated with the organization. Due to the fact that The Boy Scouts of America is a legal entity that has a responsibility to take all reasonable steps to keep the youth in their charge safe, if a child is sexually abused by adults associated with its programming, they are technically legally liable.

When sexual misconduct occurs, they are breaching their recognized responsibility, so both the abuser and the organization itself can be sued in a civil lawsuit to recover financial compensation for injuries, damages, and losses suffered by the young victim of sexual abuse.

When it comes to protecting you or your child’s rights after sexual abuse has occurred with the Boy Scouts, the first step is to schedule an initial consultation with our Florida Sexual Abuse Injury Attorneys at Whittel & Melton. We are available 24/7, every single day of the year.

Our team of knowledgeable, dedicated and compassionate lawyers will do everything in our power to help survivors of childhood sexual abuse. If you or your loved one has been the victim of sexual abuse within the Boy Scouts of America, we urge you to contact us today so that we can launch an immediate investigation into your case and get you the full and fair financial compensation that you deserve.

August 3, 2019

Walmart and Ford Partnering to Explore Self-Driving Grocery Delivery in Miami

by Whittel & Melton, LLC

Walmart offers grocery pickup, but they are not stopping there.

Walmart is now teaming up with Ford to explore autonomous car delivery in what it’s calling a pilot effort.

This is part of Walmart’s strategy to innovate when it comes to serving customers, according to a blog post written by Tom Ward, Walmart U.S. senior vice president, digital operations.

“Retail is changing at a rapid pace, and what’s ‘easy’ in 2018 might feel old-fashioned in 2028. In fact, Walmart is already offering grocery delivery in nearly 100 metro areas and is continuing to innovate to find new ways to serve customers — better, faster and easier,” wrote Ward.

Walmart, he noted, just conducted a small pilot with Waymo to determine how customers will want to use self-driving vehicles when it comes to grocery shopping. The Ford pilot is taking place in Florida’s Miami-Dade County. The chain currently partners with Postmates for Miami customer delivery. Postmates is already connected to the Ford digital platform, the blog noted.

“Walmart and Ford agree autonomous vehicles have an important role to play as we consider the future of delivery. Before self-driving cars can go mainstream, we must get a better sense of how people want to interact with them. Together, we will gather crucial data to learn the best way to bring items to customers,” wrote Ward.

As with all new technological advancements, there have been a number of safety concerns regarding driverless cars. Autonomous cars are passenger vehicles equipped with various sensors, cameras, and other technologies that allow them to detect, navigate and respond to a driving environment without constant human input. The impacts that self-driving cars will have on roadway safety have yet to be seen at this point. Many companies testing out these vehicles have learned there are many flaws that must be figured out before these cars can operate safely on roads and highways. Some of these companies that are developing and testing driverless cars, like Google’s Waymo, Tesla, Argo, Cruise, and Uber, have pumped the brakes on getting these vehicles on the roads by this year as they are learning that making autonomous vehicles is harder, slower and costlier than they initially thought.

Even though autonomous cars are programmed to respond to a variety of circumstances, they are not yet up to speed on eliciting the proper response from other motorists sharing the roads. IN 2009 during a Waymo test drive, the autonomous car stopped for a passing pedestrian, but was then rear-ended by a motorist following it. This erupted some concern that blending autonomous vehicles into a world of unpredictable drivers would present more challenges.

Moreover, the sensors, radar systems and other technology in self-driving cars can be very effective at detecting the conditions surrounding a vehicle, but only when conditions are good. So if there is any inclement weather like rain, snow or sleet, the technology can be far less effective at adapting to the driving environment. On that same note, poor road conditions like faded paint dividing lanes of traffic or potholes, etc. can trip up the technology in autonomous vehicles, which could easily lead to miscalculations, errors and possibly even accidents.

There are still very few regulations in place regarding the technology, safety testing and implementation of self-driving cars. There is also little to no legal framework regarding liability for any accidents caused by autonomous vehicles. Federal and state officials are still working to get regulations in place before self-driving cars share the roadways with the rest of the driving public. Our Florida Auto Accident Injury Attorneys at Whittel & Melton are following the evolution of driverless cars very closely. While we fully support any technology that can decrease the number of injuries and fatalities that result from car accidents, we want these test vehicles to be glitch free before they are mixed in with the rest of the driving population. As auto defect lawyers, we will be closely watching the evolution of driverless cars. While this technology might be inevitable, we strongly believe that these test vehicles should not be put out on the roadway until all glitches are ironed out. While it is said that nearly 94 percent of traffic crashes are caused by some form of human error, and that driverless cars will prevent car accidents, reduce injuries and save lives, it is safe to say at this point driverless cars are not there yet. Despite this groundbreaking technology, we don’t think it should come at the cost of driver safety and human lives.

August 1, 2019

Self-Driving Cars Not Likely in the Near Future, Despite High Hopes

by Whittel & Melton, LLC

Just one year ago, Detroit and Silicon Valley had visions of putting thousands of self-driving taxis on the road by 2019, thus filling may of Americans minds with thoughts of soon to be driverless cars.

Now, these vehicles have yet to arrive and it will likely be another few years before they do.

Several carmakers and technology companies have concluded that making autonomous vehicles is going to be harder, slower and costlier than they thought.

“We overestimated the arrival of autonomous vehicles,” Ford’s chief executive, Jim Hackett, said at the Detroit Economic Club in April.

In more recent news, Ford and Volkswagen said Friday that they were teaming up to tackle the self-driving challenge.

The two automakers plan to use autonomous-vehicle technology from a Pittsburgh start-up, Argo AI, in ride-sharing services in a few urban zones as early as 2021. But Argo’s chief executive, Bryan Salesky, said the industry’s bigger promise of creating driverless cars that could go anywhere was “way in the future.”

Why the delay? Human behavior.

Researchers at Argo say the cars they are testing in Pittsburgh and Miami have to navigate unexpected situations every day. Recently, one of the company’s cars encountered a bicyclist riding the wrong way down a busy street between other vehicles. Another Argo test car came across a street sweeper that suddenly turned a giant circle in an intersection, touching all four corners and crossing lanes of traffic that had the green light.

“You see all kinds of crazy things on the road, and it turns out they’re not all that infrequent, but you have to be able to handle all of them,” Salesky said. “With radar and high-resolution cameras and all the computing power we have, we can detect and identify the objects on a street. The hard part is anticipating what they’re going to do next.”

Salesky said Argo and many competitors had developed about 80 percent of the technology needed to put self-driving cars into routine use — the radar, cameras and other sensors that can identify objects far down roads and highways. But the remaining 20 percent, including developing software that can reliably anticipate what other drivers, pedestrians and cyclists are going to do, will be much more difficult, he said.

A year ago, many industry executives exuded much greater certainty. They thought that their engineers had solved the most vexing technical problems and promised that self-driving cars would be shuttling people around town in at least several cities by sometime this year.

Waymo, which is owned by Google’s parent company, Alphabet, announced that it would buy up to 62,000 Chrysler minivans and 20,000 Jaguar electric cars for its ride service, which operates in the Phoenix suburbs. General Motors announced that it would also start a taxi service by the end of this year with vehicles, developed by its Cruise division, that have no steering wheels or pedals.

Honda and the Japanese tech giant SoftBank invested in Cruise. Amazon, which hopes to deliver goods to its shoppers by driverless vehicles, invested in Aurora, another start-up in this area.

Everyone was overly optimistic about self-driving cars. Companies believed all that had to be done was to throw in some sensors and artificial intelligence.

The industry’s confidence was quickly dented when a self-driving car being tested by Uber hit and killed a woman walking a bicycle across a street last year in Tempe, Ariz. A safe driver was at the wheel of the vehicle, but was watching a TV show on her phone just before the crash, according to the Tempe Police Department.

Since that fatality, expectations were reeled back in.

Elsewhere in the United States, three Tesla drivers have died in crashes that occurred while the company’s Autopilot driver-assistance system was engaged and both it and the drivers failed to detect and react to hazards.

Companies like Waymo and G.M. now say they still expect to roll out thousands of self-driving cars, but they are much more reluctant to say when that will happen.

Waymo operates a fleet of 600 test vehicles, which is the same number it had on the road a year ago. A portion of them are the first set of vehicles it will be buying through the agreements with Chrysler and Jaguar. The company said it expected to increase purchases as it expanded its ride service.

China, which has the world’s largest auto market and is investing heavily in electric vehicles, is trailing in development of self-driving cars, analysts say. The country allows automakers to test such cars on public roads in only a handful of cities. One leading Chinese company working on autonomous technology, Baidu, is doing much of its research at a lab in Silicon Valley.

Tesla and its chief executive, Elon Musk, are nearly alone in predicting widespread use of self-driving cars within the next year. In April, Musk said Tesla would have as many as a million autonomous “robo taxis” by the end of 2020.

Tesla believes its new self-driving system, based on a computer chip it designed, and the data it gathers from Tesla cars now on the road will enable the company to start offering fully autonomous driving next year.

But many experts are very skeptical that Tesla can pull that off.

Some companies argue that the way to get more self-driving vehicles on the road is by using them in controlled settings and situations. May Mobility operates autonomous shuttles in Detroit, Providence, R.I., and Columbus, Ohio. These are not minivans or full-size cars, but six-passenger golf carts. They travel short, defined routes at no more than 25 miles per hour. In many cases they provide public transportation where none is available.

The company has been running six shuttles between the Providence train station and Olneyville, a growing neighborhood a few miles away, since May. The trial is backed by the Rhode Island Department of Transportation, which is paying May Mobility $800,000 for the first year of service. The company expects to take its service to Grand Rapids, Mich., this year, in a partnership led by the city. Based in Ann Arbor, Mich., May Mobility has raised $33 million from investors, including a $10 million round led by Toyota and BMW.

Also this year, a Boston start-up, Optimus Ride, plans to begin operating driverless shuttles at the Brooklyn Navy Yard that also travel at 25 m.p.h. or less.

At Whittel & Melton, our Florida Auto Accident Attorneys are obvious advocates for roadway safety because we see the devastating impact of serious accidents each and every day. The hope for autonomous vehicles was, and still is just possibly in the more distant future, to dramatically decrease in motor vehicle accidents. Should those hopes and visions be achieved, many innocent loves will be saved.

In recent years, car accident fatalities have been on the rise. According to data gathered by the National Safety Council, there were approximately 40,000 traffic accident fatalities in the United States in 2016. This is the highest number of deaths since 2007, when motor vehicle safety features were nowhere near as advanced as they are today.

The financial impact of personal injuries and wrongful deaths from auto accidents are huge. Motor vehicle accidents cost the U.S. well over $800 billion every year. Experts have concluded that 9 out 10 car accidents are caused by human error, so if and when autonomous vehicles are up to speed to take on all these human foibles, they just may indeed make the roadways safer.

July 31, 2019

Florida Lawyer for Victims of Crime : Florida Jury Awards $700 Million to Murder Victims Parents in Wrongful Death Lawsuit

by Whittel & Melton, LLC

A jury has awarded $700 million to the parents of a Florida man who died after being beaten unconscious and then set on fire while still alive.

The jury reached its verdict earlier this month in the wrongful death lawsuit filed by the parents of the deceased, who was killed in June 2012 in Highlands County.

The verdict was against the two men who were convicted of their son’s murder in 2015.

Investigators said the men were at a party when one of the men punched the victim. The other man then beat the victim unconscious. The men set him on fire hours later when the victim was unconscious but still alive.

Collecting the award might be difficult as both men are serving two life sentences each on kidnapping and murder convictions.

While a typical wrongful death claim arises from negligence, or someone else’s failure to exercise appropriate care in a specific situation, it is possible for a claim to arise from an intentional act, such as murder. While the state of Florida will bring criminal charges against a person accused of murder for breaking the law, the victim’s family or a representative of the victim’s estate can file civil charges for wrongful death.

Under Florida’s Wrongful Death Act, an individual may bring a wrongful death claim if they are related to the deceased as a:

spouse
child
parent
dependent blood relatives
children born outside of wedlock of the mother or father

In addition, Florida law mandates when wrongful death lawsuits must be filed by, which is called the statute of limitations. That time in Florida is two years from the date of death. In certain very specific cases, this time can be postponed. After the statute of limitations has expired, a suit can no longer be filed and all legal rights with respect to the filing of a wrongful death suit are extinguished.

In a wrongful death lawsuit, the family of the victim, also known as the plaintiff, must prove that the defendant, the person accused of being responsible for the death in the lawsuit, actually caused the death in question through negligence or an intentional act. In this specific case, murder is the intentional act. Murder is defined as the intentional killing of another human being, so it does satisfy the legal definition of an “intentional tort.” The burden of proof for establishing responsibility for a wrongful death is much lower than what is required for proving guilt beyond a reasonable doubt for a murder charge. So it is safe to assume that if a prosecutor successfuly convicts a person of murder, then the plaintiff in a subsequent wrongful death claim will have little to no trouble establishing the burden of proof in a civil wrongful death lawsuit.

The types of losses for which financial compensation is typically sought in a wrongful death lawsuit arising from a murder include loss of companionship, loss of income or support, and loss of consortium. Other types of losses for which compensation is awarded in a wrongful death case stemming from a murder include medical bills as well as funeral and burial expenses. A family member may also be able to obtain monetary compensation for mental anguish and emotional distress from the murder of a family member.

However, if a person is headed to prison, or already behind bars, they may not have the financial means to be able to pay the money owed that results from a wrongful death lawsuit. So, unless they have enough assets before entering prison, a wrongful death suit may not result in the financial compensation you deserve. When it comes to a wrongful death suit after such a heinous act as murder, most families are not as concerned with the money aspect of the ruling, but rather the message it sends to the resposible party (parties).

July 30, 2019

Florida Driver Suing Tesla for Autopilot Full Speed Crash on Highway

by Whittel & Melton, LLC

Tesla’s driver assistance tools are being challenged yet again in court.

This time, a Florida driver is suing the electric car maker for negligence and breach of duty after a collision with a disabled vehicle on Florida’s Turnpike that destroyed the front end of his Tesla Model S.

The man says the collision, which happened while he was doing around 80mph on Autopilot, left him with “severe permanent injuries.” He is seeking unspecified monetary damages.

In addition, the lawsuit also claims that Tesla is misleading consumers into believing its Autopilot system can safely transport passengers at highway speeds.

When you engage Tesla’s Autopilot at over 50 mph it has trouble finding stationary objects and parked cars.

In May of this year, Tesla settled a class action lawsuit from drivers who had bought cars with Autopilot 2.0, a feature that cost an extra $5,000 per vehicle, and which the drivers said was dangerous and unusable. In the settlement, Tesla put $5 million in a fund for legal fees and to compensate buyers of the enhanced Autopilot package from 2016 and 2017 with payments of $20 to $280.

While Autopilot’s enhanced features are Tesla’s incremental steps towards developing a fully self-driving car, these vehicles are not self-driving yet.

While Tesla’s Autopilot system can handle a range of driving conditions, it’s not designed to stop for parked cars or other stationary objects when traveling at highway speeds.

Tesla released a major Autopilot software update last week. Tesla’s new ‘Navigate’ feature on Autopilot “guides a car from a highway’s on-ramp to off-ramp, including suggesting and making lane changes, navigating highway interchanges, and taking exits.” However this warning is also added: “Until truly driverless cars are validated and approved by regulators, drivers are responsible for and must remain in control of their car at all times.”

A closer look into the autopilot issue could reveal that the problem is how these cars are being marketed. The driver in this lawsuit claims that a Tesla sales representative reassured him he only had to “occasionally place his hand on the steering wheel and that the vehicle would ‘do everything else.’”

In September, a driver from Utah lodged a similar complaint after her Tesla hit a stationary fire truck at a red light while on Autopilot. The woman said Tesla sales people told her she only had to occasionally touch the steering wheel of the Model S while using the Autopilot mode.

In response to the Florida lawsuit, a Tesla spokesperson said that they are unable to review the vehicle’s data from the accident because “the car was incapable of transmitting log data to our servers.” The spokesperson went on to say, “However, we have no reason to believe that Autopilot malfunctioned or operated other than as designed.”

Tesla also stressed that driver vigilance remains paramount. “When using Autopilot, it is the driver’s responsibility to remain attentive to their surroundings and in control of the vehicle at all times. Tesla has always been clear that Autopilot doesn’t make the car impervious to all accidents, and Tesla goes to great lengths to provide clear instructions about what Autopilot is and is not.”

Tesla has the following information available on their website regarding Autopilot:

Autopilot is an advanced driver assistance system that enhances safety and convenience behind the wheel. When used properly, Autopilot reduces your overall workload as a driver. 8 external cameras, a radar, 12 ultrasonic sensors and a powerful onboard computer provide an additional layer of safety to guide you on your journey.

Autopilot is intended for use with a fully attentive driver, who has their hands on the wheel and is prepared to take over at any time. While Autopilot is designed to become more capable over time, in its current form, it is not a self-driving system. There are five levels of automation and Autopilot is currently classified as a Level 2 automated system according to SAE J3016, which is endorsed by the National Highway Traffic Safety Administration.

Tesla’s Autopilot program is clearly not infallible. Just like other machines, the system is susceptible to defects. While these vehicles equipped with Autopilot features are advertised as being able to prevent or avoid accidents, this case shows that that is clearly not always the case.

In personal injury claims stemming from auto accidents, the main aspect of the lawsuit is proving who is to blame. This can be a heated and complicated debate. In normal car accident claims, the careless or negligent driver who caused the accident is usually found to be liable for damages. However, when a self-driving car is involved in a collision, there is no driver to hold accountable. This presents the issue of product liability because a piece of machinery and a computer is involved. The only way to hold a computer accountable is to sue the entity or company that designed or programmed the computer. There are other legal issues involved as well, which can further complicate personal injury or wrongful death claims.

July 8, 2019

The Future Looks Bleak for U.S. Nursing Home Costs

by Whittel & Melton, LLC

The results of a six-year study by Georgetown University Medical Center revealed that nursing home costs are increasing across America, and quite rapidly. The future does not look so bright as far as nursing homes are concerned.

Dr. Sean Huang, the study’s lead author, said the brutal dynamic governing long-term care in the U.S.—where many nursing home residents must spend down the bulk of their life savings before qualifying for federal assistance—is intensifying. California, Florida, New York and Texas all saw increases that far outstripped the 11.6% rise in inflation from 2005 to 2010, the period reviewed by Georgetown’s analysis of eight states. Additional data show the upward trend has continued in the years since.

The baby boomers are not the only ones who should worry. Generation X, millennials and Generation Z might face an even darker old age. Rising wage pressure on a sector in need of workers is driving up costs, and unless Washington comes up with a fix, be it a version of “Medicare for All” or something less ambitious, the funding for some programs is projected to start running out in the next decade.

People with disabilities, dementia, Parkinson’s disease, etc., will use all of their wealth until it runs out because Medicare does not cover that.

The study suggests that we will not see any improvements in these trends, and if anything, things will probably get worse.

Many Americans have no idea how Medicare works, including those approaching retirement. Eligibility for the program, a sort-of government health insurance policy largely for older Americans, generally begins at age 65, covering some of the costs of routine and emergency medical care. What it doesn’t cover are most aspects of long-term “custodial” care—as in nursing homes, where a large portion of Americans can expect to spend the last years of their lives.

That’s where Medicaid—state-administered coverage for Americans whose assets fall below a certain level—comes in. For those who qualify for nursing home admission, Medicaid generally requires that they exhaust most of their assets before qualifying for coverage. Without expensive long-term care insurance, which most people don’t have, an increasing number of older Americans are doing this.

And their nest eggs are being depleted more quickly than ever. Huang’s study found nursing home price rises over the period measured generally outpaced increases in overall medical care (20.2%) and consumer prices (11.7%). For example, in California from 2002 to 2011, the median out-of-pocket cost for nursing home care increased 56.7%.

Huang and three co-authors began looking into the matter in 2013. With no central database, they had to collect information from each state as well as from individual nursing homes. Some states only had data through 2010, he said. In the end, they managed to crunch data from an average of 3,900 nursing homes for each of the years measured, representing approximately 27% of free-standing U.S. facilities.

Nursing homes in New York during the period reviewed had the highest average daily price, at $302, while Texas had the lowest average daily price, at $121. Additional information has shown that nursing home costs have continued to increase at a much higher rate than inflation, albeit slightly slower than during the study period.

In 2010 the average price per day for nursing home care in California was $217, up more than 30% (with Florida close behind) from 2005. In a more recent analysis, Huang calculated that from 2010 to 2015, nursing home prices in California rose more slowly, by roughly 19.6%, to $258 per day. However, inflation from 2010 to 2015 increased only 8.7%, he noted, adding that his research doesn’t point to any improvement going forward.

The median daily price for a private room in a California nursing home just last year was $323, while the national median was $275 per day, according to life insurance company Genworth. Looking at the issue from an annual perspective, the median cost in the U.S. for a private room in a nursing home was $100,375. Oklahoma provided the cheapest annual median cost, at $63,510, while Alaska was the most expensive at $330,873, Genworth data showed.

Nursing homes have long been a financial drain on most who need them, constituting one of the greatest risks retirees face when it comes to managing retirement funds, a report from the U.S. Department of Health and Human Services showed. Unfortunately, the annual costs for nursing home care will continue to grow at a rate much faster than inflation, according to Urban Institute Senior Fellow Richard W. Johnson.

More elderly Americans means more demand for nursing home care, and more demand for nursing home employees. Wages go up, and the cost is passed along to consumers.

In an industry that requires significant hands-on attention, technology can’t eliminate many jobs. And just when the labor market for nursing homes is already tight, uncertainty over U.S. immigration policies may further reduce the number of available workers, he said. In 2017 immigrants made up 23.5% of formal and nonformal long-term care sector workers, according to Health Affairs.

Home health aides and personal-care aides are ranked as the third- and fourth-fastest growing occupations and are expected to increase 47% and 39%, respectively, from 2016 to 2026, according to the Bureau of Labor Statistics.

Another trend that may be driving up costs is tied to Wall Street. Four out of the 10 largest for-profit nursing home chains were purchased by private equity firms from 2003 to 2008, according to a case study analyzing a private equity takeover.

Research on the impact of private equity has yielded mixed conclusions, though one study revealed how a nursing home chain that was taken over by a private equity firm showed a general reinforcement of profit-seeking strategies already in place, while adding some strategies aimed at improving efficiency. Other reports, however, have detailed darker results.

Some states have started taking matters into their own hands. Washington state passed a bill in April that would implement a 0.58% payroll tax that would give residents up to $36,500 to pay for long-term care services. Payroll tax will begin collecting in 2022, while residents can start withdrawing in 2025. But that’s just one state, and the problem, Huang and Johnson note, is national in scope.

The only way they see nursing home quality to improve is if there would be a higher reimbursement rate, either by Medicaid or Medicare, but that is unlikely to happen in the near future.

Paying for a Nursing Home Stay

There are essentially four main ways to pay for a nursing home stay:

Cash out of your pocket
Medicaid
Private Long Term Care Insurance
Medicare

What Does Medicaid Cover?

Medicaid is a joint federal and state government program that helps people with low income and little assets pay for their nursing home costs. As discussed in the article above, to be eligible for Medicaid, your income and asset levels can’t exceed levels set forth in your state. Medicaid officials will review your financial information over a certain number of years to determine if you have been getting rid of “wealth” in order to receive Medicaid. If you have assets over the allowable level, you are allowed to “spend down” or decrease your assets before you receive Medicaid. Typical spend down costs include medical expenses, mortgages and other debts, and funeral expenses. Also, your house and car are generally not counted against you for qualification purposes.

You should also keep in mind that not all nursing homes accept Medicaid, so you’ll need to ask about a particular nursing home’s policy. You can find nursing homes that accept Medicaid by clicking here.

What is private long term care insurance?

Private long term care insurance is an insurance policy that’s purchased separate from your primary medical insurance, sort of like buying life insurance. In simpler terms, the insurance coverage that covers your doctor’s appointments and prescriptions won’t cover nursing home stays. If you want a nursing home cost covered, you’ll have to purchase long term care coverage. Long term care insurance can be very costly and not all policies are the same, so it is important to thoroughly evaluate all policy information before purchasing it. You can find out more about this type of insurance by clicking here.

What does Medicare cover for nursing home stays?

Medicare helps pay for short stays of no more than 100 days in a nursing home for a few reasons:

You were hospitalized recently for at least 3 days.
You were admitted to a Medicare-certified nursing home within 30 days of your prior hospital stay.
You need skilled nursing services.

The earlier you begin planning for the cost of nursing home care, the better chance you have of being able to afford it without causing you or your family a major financial hardship. No one wants to think about this kind of thing, but the reality is that the matter is getting worse, not better. We must think about these costs and plan, so that we can all have a better future with better nursing home care, if and when needed.

July 3, 2019

Miami and 14 Other Cities Will Track Scooters To Get A Handle On Regulation

by Whittel & Melton, LLC

On Tuesday, 15 cities, including New York, Los Angeles, Chicago, Miami, San Francisco, and Bogota, Colombia, said they have created a nonprofit called the Open Mobility Foundation, devoted to collecting, maintaining, and standardizing information about where shared vehicles, including cars, scooters, jet packs, and bicycles are parked.

The foundation will take control of the Mobility Data Specification, a digital tool created by the Los Angeles Department of Transportation. LADOT has used the standard to solicit and organize information about shared scooters: where they’re parked, where they’re traveling, and whether they’re broken or charged. Cities can also use the tool to share information with the companies about any special events in the area that might lead to an increased demand in vehicles.

For now, the tool has been used only to collect and share information on scooters and bicycles. But the cities who now control it believe the data standard could be used to one day regulate shared cars and even autonomous taxis.

At least 50 other global cities, seeking a simple way to keep track of the new and often controversial scooters on their streets, have adopted the Mobility Data Standard too. Many require companies to submit data in that format if they want to operate in the cities. This is something they can do because scooters, unlike ride-hailing companies, are generally regulated on the municipal level.

The cities say the info will help them improve their transportation systems and make them safer and easier to navigate. There are safety challenges that still need to be solved and the hope is that this system can help with all of that.

The data also helps cities regulate the transportation companies, letting officials know whether the vehicles are operating in the proper places. This makes it easier to identify where these vehicles are being used illegally and what needs to be done to stop it. It also helps cities see which neighborhoods are using the scooters more.

Initially, companies were against the data standard. These companies have argued that intensive government data-collection efforts could harm users, because governments may not be able to safeguard the information. Privacy advocates have also objected to the tool.

Now that responsibility for the data standard is in the hands of some of the country’s most important transportation officials, handling sensitive data will be a very important undertaking for the foundation.

Not every private company has been invited to work with the cities on this new foundation. Only Spin, a scooter-share operator owned by Ford, and scooter-share unicorn Bird are “founding members” of the Open Mobility Foundation. City officials who created the foundation did not approach Uber and Lyft, which run bike- and scooter-share businesses and supported local legislation that would restrict what kinds of data cities are allowed to collect.

Moving control of the standard to a foundation doesn’t resolve the messy politics around scooters. But, it could be a large step in the right direction. Only time will tell.

Bird and Spin provides electronic scooters for people to rent to travel short distances instead of hailing an Uber or Lyft. You need to downloaded the app to use the scooters and pay a small unlock fee and then a travel charge. The app shows where the scooters are located and how much of a charge each one has. They can travel up to 15 mph and are a great option to get around congested locations that are not too far apart. The benefit of using the scooters is that you can leave them at the location you arrive at, and you are not required to bring them to a nearby docking station or return them to your initial destination. You can simply leave the scooters wherever you stop and they will be collected at night and redistributed by morning by independent chargers.

There are numerous ways that you can get injured from Bird or Spin scooters, and many times another person can be responsible for your injuries or the scooter or the company is liable. Those who wish to ride the scooters need to pay attention to the rules and regulations that accompany the vehicles. While the scooters themselves have warnings on them, a full list of do’s and don’ts can be found on the app.

Always wear a helmet when riding.
Only have 1 person ride a scooter at a time. The scooters are not designed to hold the weight of two people.
You must have a valid driver’s license to operate a scooter.
Keep at least one hand on the handlebars and do not carry or hold any belongings, materials, or items that would make it difficult or impossible for you to safely maneuver the scooter.
Never hitch the scooter or user to another car or any other automobile during operation.
Use bike lanes and avoid the sidewalk as much as possible.
Park the scooter in a safe space so that it is not in the way of pedestrian traffic, and do not leave the scooter on its side on the sidewalk or in the street.
Do not operate the scooter while under the influence of drugs or alcohol.

July 2, 2019

Florida’s New Laws Taking Effect July 1

by Whittel & Melton, LLC

There are 200 new laws that were passed during the 2019 Florida Legislative Session and signed by Florida Gov. Ron DeSantis.

Some take effect July 1. Other laws will go into effect Oct. 1 and Jan. 1.

Here is what takes effect July 1, 2019:

HB 7065 – AOB Reform

This reform provides for substantial changes in the way insurance benefits may be assigned to third parties. Defines “assignment agreement” and establishes requirements for the execution, validity, and effect of such an agreement; Transfers certain pre-lawsuit duties under the insurance contract to the assignee and shifts the burden to the assignee to prove that any failure to carry out such duties has not limited the insurer’s ability to perform under the contract; Requires each insurer to report specified data on claims paid in the prior year under assignment agreements by Jan. 30, 2022, and each year thereafter; allows an insurer to make available a policy prohibiting assignment, in whole or in part, under certain conditions; Revises the state’s one-way attorney fee statute to incorporate an attorney fee structure in determining the fee amount awarded in suits by an assignee against an insurer; requires service providers to give an insurer and the consumer prior written notice of at least 10 business days before filing suit on a claim.

HB 301 – Insurance “Omnibus” bill

Allows insurers to provide multi-policy discounts when homeowners and auto policies are purchased through the same agent; increases the reimbursement from the Florida Hurricane Catastrophe Fund for loss adjustment expenses from 5 percent to 10 percent of reimbursed losses beginning with contracts issued after June 1, 2019; provides that workers’ compensation insurance applicants and their agents are not required to have their sworn statements notarized. Also enacts several updates for the Florida Surplus Lines industry, including eliminating a prescriptive cap on surplus lines agent policy fees (currently $35) and replacing it with a requirement that the fee be “reasonable” and separately disclosed to the customer. In addition, the residential dwelling replacement cost has been decreased to $700,000 from $1 million as it relates to “diligent effort” procedures. Makes changes to civil remedy notices and the appraisal process.

HB 617 – Flood Insurance Disclosure

Revises circumstances under which insurers issuing homeowners insurance policies must include a specified statement relating to flood insurance with policy documents at initial issuance and renewals. Fixes an oversight in previous legislation that required property insurance policies to prominently display that they don’t provide flood or other coverages, which didn’t contemplate “endorsement” of coverages onto property insurance policies. This bill requires the flood insurance portion of the notice only when the policy does not include flood coverage.

HB 107 – Hands Free Driving Requirement

Prohibits a person from operating a motor vehicle while using a wireless communications device in a handheld manner in a designated school crossing, school zone or work zone; authorizes a law enforcement officer during a specified period to stop motor vehicles to issue warnings to people who are driving while using a wireless communications device in a handheld manner in a designated school crossing, school zone or work zone; requires all law enforcement agencies to maintain such information and report it to the Department of Highway Safety and Motor Vehicles in a form and manner determined by the department, etc.

HB 311 – Autonomous Vehicles

Exempts autonomous vehicles and operators from certain prohibitions; provides that human operator is not required to operate fully autonomous vehicle; authorizes fully autonomous vehicle to operate regardless of the presence of human operator; provides that automated driving system is deemed operator of autonomous vehicle operating with system engaged; provides requirements for insurance and operation of on-demand autonomous vehicle networks; revises registration requirements for autonomous vehicles; provides for uniformity of laws governing autonomous vehicles.

SB 1024 – Blockchain Technology Task Force

Establishes the Florida Blockchain Task Force within the Florida Department of Financial Services that will develop a specified master plan specifying duties and procedures of the task force, etc. related to blockchain technology. According to CFO Jimmy Patronis, who championed the bill, blockchain technology increases the difficulty of amending transaction records and creates a “vital avenue of transparency for the state.”

HB 1393 – Modifies Areas Regulated by the Florida Department of Financial Services

Amends various licensing statutes administered by the Division of Agent and Agency services, including creating a temporary license for personal lines agents; gives DFS authority to help insurance consumers understand the mediation process; and helps to more easily return unclaimed property to Floridians. Also provides DFS the discretion to deny, suspend, revoke or refuse to continue an insurance agency license on the grounds that another jurisdiction has taken an adverse action against a professional license held by a majority owner, partner, manager, director, officer or other controlling person of the agency.

HB 7091 – Hurricane and Flood Loss Model Trade Secrets

Removes the scheduled repeal date of the public record and public meeting exemptions maintaining that the public record exemption for a trade secret used in designing and constructing a hurricane or flood loss model and provided by a private company to the Florida Commission on Hurricane Loss Projection Methodology, the Office of Insurance Regulation, or the consumer advocate; removes the public meeting exemption for any portion of a Florida Commission on Hurricane Loss Projection Methodology meeting or of a rate proceeding on an insurer’s rate filing at which such confidential and exempt trade secret is discussed; and removes the public record exemption for the recording of an exempt meeting.

SB 426 – Firefighters Cancer Benefits

Makes firefighters who are diagnosed with certain cancers eligible to receive certain disability or death benefits. In lieu of pursuing workers’ compensation coverage, a firefighter is entitled to cancer treatment and a one-time cash payout of $25,000, upon the firefighter’s initial diagnosis of cancer.

HB 1253 – Prescription Drug Monitoring Program

Gives Florida Attorney General access to information in the state’s prescription drug database to track sales of opioids. The move will help the AG’s efforts to sue drug manufacturers and pharmacies for overselling pain pills. Patient information will be protected.

SB 983 – First Responder PTSD

Ratified DFS’ rules related to workers’ compensation wage replacement benefits that are now provided in specified circumstances for post-traumatic stress disorder (PTSD) suffered by a first responder, regardless of whether the individual’s PTSD is accompanied by a physical injury requiring medical treatment. Specifies the types of third-party injuries qualifying as grievous bodily harm of a nature that shocks the conscience for the purposes of allowing wage replacement benefits for first responder PTSD.

Our Florida Personal Injury Attorneys at Whittel & Melton help injury victims recover financial compensation after they have been involved in accidents. This monetary compensation is needed to cover expenses associated with medical care, lost wages and all other financial damages incurred.

Every state has specific laws, and the Sunshine State is no exception. Our Florida Injury Attorneys know every auto accident law, insurance laws, etc. and how they pertain to your case. We can also tell you the proper county and court to file your claim, what you are likely to be awarded and the odds of your case going to trial or settling out of court.

We will provide you with expert legal advice, explain your rights and represent you in court. There are many other things we do for clients, such as file motions, conduct depositions, analyze insurance policies, obtain and review medical records, conduct negotiations with the insurance company, create exhibits for trial, negotiate medical bills, and prepare any witnesses and the client for trial, just to name a few.