Civil Cases

 

Civil Lawsuit Defense Information

Served with a Lawsuit - What should you do if you have been sued?

No one likes that feeling in the pit of the stomach when served with court papers. You may be wondering what to do when you receive the court papers. 

A lawsuit begins when someone, called the "plaintiff" files a document in court, known as a "complaint."  The next step is to give you, the "defendant" a copy of the court papers and  a copy of a document called a "summons." This is called "service of process," and you may "be served" the papers through the mail, or by personal delivery (such as by a deputy sheriff or other certified process server). The summons tells you how many days you have in which to file your answer or response or what you must do to protect your rights. If you do not file a written answer or response within that time limit or follow the other instructions given, the plaintiff may proceed with the lawsuit anyway. Your failure to respond may be treated by the Court as if the claims in the complaint are correct, and you would be considered in "default." This may mean you have lost your right to defend the lawsuit. You may even have lost any right to be informed of the date and time of later court hearings against you in that case. The usual time limit for responding to a lawsuit complaint is 20 days. The court may extend this time if before the end of the 20 days you ask for and are granted an extension of time, based on a valid reason. The time limit within which to respond to a lawsuit to recover possession of land or a home is 5 days. A response to that kind of lawsuit must, of course, be very prompt. Any response or answer you file must be carefully worded so that all of your defenses may be presented in court. If you have a defense which you do not state in your answer, the court may refuse to allow you to present that defense later at the trial. At the same time that you file your answer, you may wish to file a "counterclaim."  A counterclaim is just like a complaint, but it is filed by the defendant against the plaintiff. The same rules for complaints must generally be followed for a counterclaim. The counterclaim will state your reasons why you should recover damages or other relief from the plaintiff. Certain defenses may be good ones but you may not know about them. For example, the plaintiff may have waited too long to file the complaint. The failure to sue within the proper time limit is a valid defense. There may be many other defenses which apply to your case.  The best way to make sure that all of your rights are protected is to contact an attorney/lawyer.

Before meeting with your lawyer:

  • Gather all information together in a logical order;
  • Be sure you have current correct telephone numbers and addresses of interested parties and witnesses, if applicable;
  • Prepare a written statement of your problems and what you want done;
  • Make photocopies of everything and offer originals or photocopies to your lawyer. Let your lawyer decide if originals or the copies are needed.

During your initial consultation:

  • Present an overall view of your position.
  • Share all relevant information, let your lawyer decide what is not in your favor. It is much better for your lawyer to know, rather than be surprised later. 

For a free consultation, and legal assistance, call (305) 373-9999 for an appointment orcalltoll free 1 (800) 966-4041 for a free out-of-town telephone consultation.

Business and Commercial Disputes Information

At The Law Offices of Frank L. Hollander. established in 1988, we have litigated, arbitrated, and mediated a wide range of corporate, commercial, and other business disputes, including:

  • Business and Commercial Litigation
  • Contract Disputes
  • Corporate Law
  • Covenants not to Compete
  • Insurance Litigation
  • Landlord/Tenant

For a free consultation, and legal assistance, call (305) 373-9999 for an appointment or call toll free 1 (800) 966-4041 for a free out-of-town telephone consultation.

Covenants not to Compete

Under Chapter 542, the Florida Antitrust Act of 1980, section 542.335 restraints of trade or commerce that restrict or prohibit competition during or after the term of restrictive covenants that are reasonable in time, area, and line of business are not prohibited but it must be in writing signed by the person against whom enforcement is sought. The person seeking enforcement must plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant such as trade secrets, valuable confidential business or professional information, substantial relationships with specific prospective or existing customers, patients, or clients., customer, patient, or client goodwill associated with an ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”; a specific geographic location; or a specific marketing or trade area or extraordinary or specialized training.

Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable. A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction.

If a person seeking enforcement of the restrictive covenant establishes prima facie that the restraint is reasonably necessary, the person opposing enforcement has the burden of establishing that the contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests. If a contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.

Structured Settlement, Annuity, Life Insurance Conversions to Lump Sum Cash Payments

PART XI

STRUCTURED SETTLEMENTS

Florida Statute 626.99296 

Transfers of structured settlement payment rights.

What is a structured settlement?

When a plaintiff brings a personal injury action against a defendant for damages and the parties decide to settle the case, they may enter into a structured settlement to compensate the plaintiff for his injury. Structured settlements are monetary awards for damages that are paid in installments over a period of time. They are frequently used to settle tort cases involving severe injuries in which large damages are sought (e.g., products liability, medical malpractice, and wrongful death cases) because of the defendant's inability to pay the amount in one lump sum. Astructured settlement is a completely voluntary agreement between the injured victim and the defendant. Under a structured settlement, an injured victim doesn't receive compensation for his or her injuries in one lump sum. They will receive a stream of payments tailored to meet future medical expenses and basic living needs. A structured settlement may be agreed to privately (for example, in a pre-trial settlement) or it may be required by a court order, which often happens in judgments involving minors and incapacitated adults.

Why do a Structured Settlement?

A structured settlement’s most important advantage is security. The structured settlement provides long term payments that are guaranteed by a life insurance company. 

The structured settlement allows the injured party to tailor payments over his or her life. There is no need to meet periodically with an investment or tax advisor. Payments are decided during the initial settlement and then are directed to the injured victim. It gives peace of mind, security, and confidence over the long term.

How a structured settlement works

Typically, in a structured settlement, a defendant pays one premium to purchase a life insurance contract. The life insurance company then disburses a lump sum and periodic payments to the plaintiff for a certain number of years. An annuity is generally used to fund the structured settlement award.

The settlement usually contains a lump-sum cash payment for past expenses incurred by the plaintiff, including lost earnings and medical expenses arising from the plaintiff's injury. It also provides funds for the plaintiff's current treatment. Annuities are then designed to provide future payments for items such as ongoing medical care, diminished earning capacity, educational needs of the plaintiff's children, and loss of a decedent's support. In determining the amounts for the future payments, both present value and inflation must be considered.

Converting a structured settlement to a lump sum cash payment

Before you may convert a structured settlement into a lump sum cash payment, you will have to have an attorney petition the Court where you reside under the Florida Structured Settlement Act. Either you must hire an attorney to provide you with an independent professional advice letter, called an "IPA" for independent legal representation and advice or the annuity-for-cash, or structured settlement-for-cash purchase companies will provide you with a written waiver form to allow you to waive the IPA requirement, as allowed by the Florida Structured Settlement Statute, 626.99296, subsection(3)(a)(4). The attorney also should advise you and investigate the possibility, feasibility and parameters of attempting to convert the structured settlement annuity into a lump sum payment. A consultation to ascertain whether it is possible to sell not only the guaranteed payments but also the annual life contingency payments will be needed and also to investigate a variety of structured settlement companies to obtain the best result, most importantly to negotiate the highest pay-out to you. We strive for 89% of the disclosed present value. 

A General Guide about selling a structured settlement:

1)    First you should determine your current and future cash needs and financial condition. It is recommended that you consult a lawyer.

2)   Contact your payment provider, usually an insurance company, to determine the amount, number payments remaining , and terms of your structured settlement. It is a good idea to get all contract information from your provider. You will need this information to give to your lawyer.

3) The information gathering process can include:

-Settlement Agreement/Court Judgment/Release 
-Annuity policy/contract - from the insurance company

4) When the underwriting is complete, the settlement will be submitted to the court for approval. A judge will review the settlement and determine if it is in the your best interest to sell the settlement. You are under no obligation to appear in court.

Please note: these are general guidelines, all situations are unique and vary by state and company.

A structured settlement is a method of paying damages to an injured party over a period of time when a lawsuit is settled. It usually results from personal injury cases such as automobile accidents, medical malpractice, wrongful death or product liability. In those cases, the parties involved often agree to have damages paid monthly or annually over a period of years rather than with one lump-sum. The damages are usually funded in the form of an annuity contract issued by an insurance company.

The Annuity

The annuity itself is not assignable by the annuitant because he or she does not own it. It is typically owned by a subsidiary of the life insurance company that issued the annuity. What the annuitant has is the "right to receive the payments" under the settlement. That right is personal property which can be assigned.

Most states have enacted transfer statutes requiring either a court order and/or certain disclosures before a structured settlement recipient can sell their annuity payments. 

For a free consultation, and legal assistance, call (305) 373-9999 for an appointment or call toll free 1 (800) 966-4041 for a free out-of-town telephone consultation.

Berkshire Hathaway Life Insurance of Nebraska

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The Law Offices of Frank L. Hollander

One Biscayne Tower | 2 South Biscayne Blvd. | Suite 3760 | Miami, FL 33131

Free ConsultationPhone: 305-373-9999 | Toll-Free: 800-966-4041 | Fax: 305-373-7777 | Email: frank@hollander.lawyer

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