Orlando Personal Injury Lawyer

What Should I Do After an Auto Accident?

Thomas Dennis — Mon, 08 Apr 2013 12:03:11 GMT

After an automobile accident, the ensuing moments can be highly stressful for everyone involved. There are many important concerns that should be addressed following an accident. Below is an overview of those concerns

If There Are Injuries, Then Call 911

First and foremost should be the safety and concern for any injured individuals. If one or more individuals begin experiencing pain, then immediately call 911 to alert paramedics to your location. After calling 911, it is important to call the police to notify them of the accident.

Document the Scene

Besides contacting the police, it is also important to document the accident. Use a camera or a phone that has camera capabilities to take photographs of any damage to your vehicle and any other vehicle that was involved in the accident. Also, take down the names, phone numbers and addresses of any witnesses, passengers and individuals involved in the accident. Try to avoid discussing the accident with other drivers or witnesses. If you admit liability, this may be used against you later. If the police complete an accident report, make sure to carefully read it for it accuracy before signing it.

Secure Your Vehicle

If your vehicle is inoperable and needs to be towed from the scene, then make sure to remove or secure any valuables located in the vehicle. Be sure to get detailed information as to where your vehicle is being taken to and any charges associated with the transportation and storage of your vehicle.

Write Down Notes

After you return home from the accident, write down some notes and diagrams of how the accident occurred. Try to reconstruct the chain of events and how each vehicle was positioned before and after the accident. Also, contact your insurance agent and report the accident. Your insurance company may investigate the accident, take statements and inspect damage to the vehicles involved in the accident as part of their claims process. In order to protect your rights, you may want to contact an attorney prior to giving any statements to your insurance company. An experienced attorney can help explain the claims process assist you through each step.

Create Emergency Preparedness Kit

Although no one expects to be involved in an auto accident, a little preparation ahead of time may save a lot of headache should one occur. Below are items to include in a basic emergency preparedness kit which may assist you if involved in an auto accident:

· Cell phone

· Pen and paper

· Disposable camera

· Flashlight

· Contacts names and numbers (emergency numbers and relative contacts)

· First aid kit

· Emergency flares and small road cones

Be Wary of Insurance Companies

It is also important to be wary if an insurance company contacts you and offers to settle your claim. As many injuries reach their greatest discomfort weeks or months after an accident, you shouldn’t settle a claim until you are fully compensated for all your injuries. If an insurance company provides you documents to sign, consult an attorney before signing those documents pertaining to any settlement.

Know Your Rights

While laws vary widely from state to state, it is important to determine the specific types of auto insurance coverage you have in effect and the laws applicable to the jurisdiction where the auto accident occurred. Many states have enacted laws limiting or prohibiting payment for medical treatment sustained in the collision if specific prerequisites are not complied with.

For example, in the state of Florida, every insured driver is required to pay premiums for Personal Injury Protection (PIP) coverage. PIP coverage pays a portion of the insured’s medical expenses and wage loss for any injuries received as a result of an automobile accident, regardless of who was at fault. A new law passed by the Florida legislature went into effect on January 1, 2013. The new law limits the amount of benefits an injury individual may receive based upon when they started treatment for their injuries or the specific diagnosis provided by a medical professional.

Seek Legal Assistance

Many times serious injuries do not manifest symptoms until days after the accident. It is important to remember that if you begin experiencing pain following an accident, then you should seek medical attention promptly. If you begin experiencing an injury, especially a serious one, you may want to consider contacting an attorney with personal injury experience in automobile accidents to preserve your rights.

Originally posted at The Legal Examiner by Thomas Dennis

Insurance Policy Provides Coverage for Legionnaires Disease

Ed Normand — Tue, 26 Mar 2013 15:27:50 GMT

The Federal 11th Circuit Court of Appeals recently ruled that a comprehensive general liability policy covering a hotel must provide insurance coverage for the death of a tourist visiting Orlando from England who died after contracting Legionnaires disease sourced from the hotel hot tub. The family was visiting Orlando from England. They chose what was reported to be a Choice Hotel on International Drive in Orlando as part of a package tour. Unknown to them that same hotel had been the site of a reported outbreak of Legionnaires disease about 6 months earlier.

The decedent, like many U.K. tourists was a smoker and over 65 making him susceptible to contracting Legionnaires disease from exposure to Legionella bacteria. He and his wife spent time on the pool deck sitting next to the pool spa. On his return to the U.K. he became very sick and died from Legionnaires disease. After very good work by the CDC and the European cohort to the CDC the disease was traced back to the hotel. The spa water was then immediately tested and found positive for Legionella bacteria. Thankfully Orange County Florida Health Department workers also inspected the spa and found it woefully non-compliant with health laws regarding spa maintenance. That negligent maintenance was the alleged cause of the Legionella bacteria and resulting death. Legionnaires disease is tough to pinpoint exactly but it was pretty clear that this spa was the cause of the exposure in this case where the hotel had shocking health code violations related to the spa only months after the spa was linked to a Legionnaires outbreak by investigating officials with the State and County.

The Hotel and the franchisor Choice were sued. Choice claimed that they were not liable for many reasons among them that they had no contract with the current management at the hotel. Allegations in the suit were for the wrongful death of the family's father as a result of Legionnaires disease. Choice denied liability and defenses included that the Hotel was in breach of the franchise agreement and that Choice was not negligent or otherwise at fault. Westport insured the owner of the Hotel but denied coverage for Legionella bacteria and denied coverage to Choice. In the underlying suit there was a confidential High Low settlement with Westport Insurance Company and the Family with the outcome to be decided if there was coverage for Legionella bacteria as determined by a coverage Declaratory Action Westport filed in the Federal District Court for the Middle District of Florida. Per the agreement either side could appeal to the 11^th Circuit on coverage so the appeals court could decide the issue. Choice also was a Defendant in the declaratory action as they were claiming coverage as an additional insured under the Westport policy. District Judge John Antoon II issued an excellent order and well written opinion denying Westport summary judgment and granting summary judgment as to indemnity coverage to the Plaintiff stating that there was insurance covering the incident and the Court granted judgment as to Choice that Westport had a duty to defend Choice under the policy.

The court ruled in a very common sense fashion that insurance policies cannot deny coverage for illness due to bacteria by claiming that bacteria is pollution.

Westport appealed and lost. The Appeals Court ruled for the Plaintiff and upheld Judge Antoon’s ruling that there was insurance coverage. The main holding in the ruling was that pollution is not bacteria especially naturally occurring bacteria like Legionella. The opinion also held that the bacteria exclusion did not apply due to exceptions to the exclusion. It was common sense. Clearly a naturally occurring bacteria is not pollution and insurance policies must be read in light of the normal construction of words. Also the policy had a bacteria exclusion but that was intended to cover mold and mildew cases not cases resulting from negligent maintenance of a hot tub or pool.

The allegations of the suit were that the bacteria was caused by negligent maintenance of the spa tub. Because there was insurance coverage for the death, Choice, an additional insured, certainly should have won on the duty to defend. The opinion from the 11^th Circuit originally never mentioned Choice and its indemnity claim. A decision this week from the Federal Court of Appeals from the 11th Circuit clarifies that Choice was entitled to defense costs from Westport. The ruling is mainly because Westport owed coverage to the hotel franchisee and so Choice, an additional insured under the franchise agreement, was also entitled to defense costs.

In summary a general liability policy does provide coverage for the wrongful death of guests at a hotel based on allegations that they acquired Legionnaires disease that was sustained from exposure to Legionella bacteria in the hotel spa. This is really a common sense ruling and a warning. Hotel guests can and should check the hotel's public inspection reports, even for an ostensible chain type hotel, to make sure that they are following the health code. Also just because the hotel has a sign that says it is a brand name it may not be a valid use of the brand or the franchise contract may be expired or void. For hotel owners they need to be careful to clean the hot tub and make sure that they get confirmation in advance that the insurance they have will cover pool and spa related claims.

Originally posted at The Legal Examiner by Ed Normand

Text Message Abuse: Do Your Part To STOP Text Spam

Ed Normand — Tue, 22 Jan 2013 19:59:05 GMT

Problem Spam: You Can Help STOP Text Abuse.

If you are like most Americans, you carry your cell phone wherever you go. You also rely on it to be accessible. What would you do if your cell phone was constantly ringing with solicitation calls? What if you kept getting constant text messages offering you ads and various “special deals”? What would you do if every time you gave out your cell number a business could endlessly barrage you with solicitation messages? Most of us cannot function without our cell phones and we also cannot function with cell phones constantly being slammed with solicitation calls. More and more, however, our privacy and rights to freedom from intrusion are being attacked by business spammers. They are hiring spammer text companies to send out spam text messages to their own customers without permission to do so. The reason is simple: money. Spam text messages are cheap, perhaps 2 cents a spam or less, and many times the businesses already have customer telephone numbers as part of the business transaction. But instead of asking the customer for permission to send spam text messages they just do it. When they do it without the prior express consent of the customer, they are in violation of Federal and State laws. What most consumers do not know is that text spammers may owe every customer that they spam $500 to $1,500 per spam text message!

Unlike residential numbers, cell phones are protected from auto dialed calls. Under the TCPA auto dialing equipment cannot be used to send text calls en masse to anybody with a cellular phone. A cellular number provided to a business related to the work being done is not permission for that company to send mobile spam. There must be express consent to send auto dialed calls or text messages. Many companies ignore this because with auto dialing computers they can send thousands of text messages a minute. Over time, they can spit out millions of spam text calls that tie up consumers’ cell phones and there is almost nothing consumers can do to get them to stop. Or so they may think. Actually you can do something to stop spam attacks. Many consumers have said “enough” and have sued to stop the text spam with lawsuits alleging that these text messages violate a Federal law called the TCPA.

The Telephone Consumer Protection Act ( The TCPA), was passed by Congress to protect our privacy and to stop automatic dialing abusive calling practices. The TCPA was passed to protect consumers from being mass texted with unwanted solicitations automatically dialed as calls or text messages. Consumers who take action to stop the spam can be reimbursed for actual damages or a minimum of $500 for every spam text message. The penalty can be $1,500 per text message if the violation is willful. The key to proving a violation of the TCPA is to show that the spam was sent by equipment with automatic telephone dialing systems (ATDS). The point of the law is to protect consumers from getting unauthorized mass automated text spam. The law requires a business to get a customer’s specific consent to be automatically dialed to count as valid consent. In plain English, just because you give a business your cell number it does not mean you consent to allow them to send you text spam or other robo calls. They can only mass text or call if they are up front and open about it so that customers have the opportunity to refuse the mass texts. They cannot text you first and then ask permission later. If they do, they may owe you $500.00 per text message. To ask permission after they send you a text or robo call is a TCPA violation.

This is generally how the text spam process works. You contact a company for a business need. It could be a pizza delivery, an oil change service or a medical office providing medical care. You want them to have the number in case they need to call you about that business transaction or in case you left your purse or they have a legitimate question or need related to the business issue. You give them your number but do so with no grant of any right to use it for spam or marketing. In fact, like most consumers you are probably careful to make sure to say “NO” if they ask for permission to spam you with marketing. But they don’t ask, they just do it. So before you know it your cell phone is ringing with spam calls from businesses advertising product sales all day and night and with no recourse. The calls may be robot recorded calls or spam text messages. They come from mysterious short code numbers and often will require you to take time, effort and wasted calls just to get them to stop texting you with calls you never asked to get. Many of these companies know that they can send these spam text calls with little cost and no bother to them or use of any company resources. They do not even have to pay for paper or ink and you, the consumer, foot the bill for the call.

The text spam problem is growing every day. Email is practically ruined with so many marketing spam emails. The more you try to stop the email spam the more that they spread. Like cancer, the more effort you take to unsubscribe the more they know they have a live lead and so the more spam you get. Now we must buy email spam blockers and we are on guard as we are careful to look out for email spam. This is a huge waste of time and money. We spend billions fighting email spam. Today, now that we know to look out for it (and because it is so pervasive) email spam is not as effective as it used to be. Once marketers realized that sending spam through e-mail wasn't’t gathering the attention they wanted, the businesses turned to your cell phone – knowing you would be carrying it 24 hours a day and that it would likely beep and otherwise demand your attention. It has been reported that the amount of spam sent by text messages has more than tripled to 45 million spam text messages every single day!

The only way we can prevent this text spam and robo call abuse is to unite. Merely calling does not work. As with email spam, spammers then just know they have a live customer and will keep sending the spam and may even sell the number. To fight back consumers need to complain to the FCC and file suit. Once the spammers get hit with enough lawsuits they will realize that the text spam does not pay. Eventually if it is costly, spammers will quit but until then consumers must unite to STOP the text spam.

Originally posted at The Legal Examiner by Ed Normand

Hospital Never Events: What To Do When Never Happens To You

Ed Normand — Sun, 14 Oct 2012 20:01:03 GMT

Medical malpractice is the eighth leading cause of death in the United States. Yet it is estimated that less than 15% of all victims of medical malpractice ever file a lawsuit. Most malpractice causes more injury which then causes more medical care. National costs for preventable medical errors exceed 29 Billion dollars by some estimates. That expense is paid for by all of us through higher insurance or through bills to Medicare and other tax payer funds. This leads to the ironic and depressing result that many times hospitals and physicians make money from their own malpractice by billing for medical care that they cause and, worse yet, we the taxpayers and employers often foot the bill.

Medicare got the message that malpractice costs taxpayers money. To try to improve the health care and and reduce the costs associated with medical malpractice historically paid for by the taxpayers, the Centers for Medicare and Medicaid Services (CMS) developed a plan to reward good care and penalize negligent or preventable medical errors. Part of that plan began in October 2007 and is called the Never Event Rule.

The program uses both a carrot and stick methodology to improve medical care and to cut costs. Part of the plan looks at reducing common and preventible Hosptial Acquired Conditions (HAC) An HAC is a medical condition or event caused or acquired at a hospital. Some HAC are so prevalent and so preventible that Medicare deems them to be "Never Events," meaning that they never should happen without negligence. When Medicare finds a Never Event the hospital is, under law and as a condition to allow participation in Medicare, to report the Never Event and the hospital is required to pay themselves for the cost of the care caused by the HAC from a Never Event.

Medicare identified 10 categories of hospital acquired conditions that were Never Events based on three criteria:

High Cost and/or Volume of the medical event

A higher bill to Medicare than would be billed if there were no HAC due to the event

The medical event could have been reasonably avoided by attention to standard medical accepted practices.

The 10 Never Events in a Hospital are:

1. Retained Foreign Object After Medical Procedure (example: sponge or tool left in patient).

2. Air Embolism

3. Blood Incompatibility

4. High Stage decubitus or skin pressure ulcers

5. Certain Falls and Traumatic injuries in a hospital that are preventible such as

· Broken bones

· Dislocated joints

· Internal brain Injuries

· Impact and crush traumatic injuries

· Hospital Burns

· Electrocution and shocks injuries

6. Injuries caused by negligent diabetic care

7. Urinary Tract Infections related to Catheters

8. Vascular infections related to Catheters

9. Surgical Site Infections in certain surgeries, including:

· Mediastinitis

· Laparoscopic Gastric Bypass surgery

· Orthopedic surgeries to:

· Spine

· Neck

· Shoulder

· Elbow

10. Deep Vein Thrombosis (DVT) / Pulmonary Embolism (PE) related to surgeries involving:

· Total Knee Replacement

· Hip Replacement

The point of the Never Events Rule is to make it clear that no longer will taxpayers foot the bill for conditions that are reasonably preventable if evidence-based treatment guidelines are followed.

The system works through the use of medical coding. Medicare requires a code for all medical care in a hospital. The bill is based in part on what codes are listed. Medicare tracks conditions that are hospital-acquired by comparing what hospitals report on the Medicare claim forms as conditions that were there when the patient is admitted to the conditions that are there when the patient is discharged. If it is a new condition first obtained while in the hospital then the condition is considered hospital acquired.

If a Never Event condition is an HAC (it was acquired during the hospital stay) instead of making a profit for that additional HAC related care, the hospital must pay itself for some of the cost of that care. Medicare does that by no longer reimbursing hospitals for the higher billing for the increased costs of care caused by the hospital acquired condition. Hospitals must now eat the cost for treatment of the patient caused by the Never Event. Some private insurance companies have followed the lead of Medicare. Additionally, the hospital can not only not bill Medicare for the increased care cost, it cannot bill the patient/beneficiary for the increased cost.

The purpose of the Never Event rule is to use economic principles of responsibility to allocate the cost of care. Now, instead of perversly making a profit from their own negligence, hospitals must bear the economic burden of their errors. But be careful to make sure the hospital does not ignore the law and instead bills Medicare or the patient in violation of the law.

Originally posted at The Legal Examiner by Ed Normand

GIVE US BACK OUR EMAIL INBOXES: CALLING ON CONGRESS TO TAKE ACTION TO STOP SPAM.

Ed Normand — Tue, 02 Oct 2012 14:55:55 GMT

We all know what Spam is: a canned meat popular in Hawaii. We also know what spam is: useless electronic marketing messages that waste our time and money.

Some canned meat is good, much is not. Likewise, some commercial messages are good and helpful, trillions are not. Congress passed a law against email spam that does not work. Congress passed a law against text spam that is much better.

To combat email spam Congress passed the CAN-SPAM Act. This is a Federal law that provides a sort of rule book for commercial email spammers but does not ban. To avoid throwing out the baby with the bathwater, Congress passed CAN-SPAM to regulate the bad meat emails but still allow what they thought were the good canned meat emails of spam. The laws were purportedly designed to be “tailored regulations, which target deceptive and predatory practices and attempt to alleviate the negative effects of spam without unduly stifling lawful enterprise...” [1]

Under CAN-SPAM the U.S. government defines spam as a “commercial electronic mail message… the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose),” excluding transactional or relationship messages. 15 U.S.C. § 7702(2).

The CAN-SPAM Act outlaws certain practices in commercial email messaging including:

1. CAN-SPAM prohibits sending commercial emails containing “deceptive subject headings” and “header information that is materially false or materially misleading.” See 15 U.S.C. § 7704(a)(1), (2).

2. CANSPAM requires certain information and labels on email spam. For example, email spam must provide a physical postal address for the spammer. The message itself must identify itself as an advertisement or solicitation, and it must have a notice that recipients can reject subsequent spam. 15 U.S.C. § 7704(a)(5).

3. CANSPAM requires each message come with an “Opt Out” email address or link or some other mechanism to enable recipients to stop getting additional messages sent to them. 15 U.S.C. § 7704(a)(3).

CANSPAM also provides a penalty for spammers that violate the law.

Those entitled to sue under the CANSPAM act “may bring a civil action in any district court” to stop future spam messages or to recover either actual or statutory damages, whichever is more. 15 U.S.C. § 7706(g)(1). The Statutory damages under the CAN-SPAM Act can be serious with fines up to $300 per unlawful e-mail.

I know what you are saying, where do I sign up?

If the law was effective, spammers would be broke and our email boxes would be whistle clean free of spam. Sadly, neither is true for most of us (in fact more spammers are millionaires than there are consumers that have spam free email inboxes).

Why is CAN-SPAM ineffective in stopping spam? The reason lies in who can enforce CAN-SPAM. The Act authorizes the Federal Trade Commission and state and federal agencies to pursue legal actions to enforce the Act’s provisions. U.S.C. § 7706(a), (b), (f). But as for you and me, Congress only gave a limited private right of action. Under the Act the only private (non-government) entity or person that can sue is a “provider of Internet access” damaged by the spam. Only those providers, as defined by CANSPAM, have the right to sue to stop the spam and to recover money from the spammer. 15 U.S.C. § 7706(g)(1).

As Courts have interpreted CAN-SPAM the only private party that can sue the spammers is one who: (1) is an “Internet access service” provider (“IAS provider”), and (2) who proves was “adversely affected by” the spamming. Gordon v. Virtumundo, Inc. 575 F.3d 1040 (2009) . The Courts have ruled that IAS Providers are not consumers who get spammed but instead are the large scale commercial vendors of internet access. To compound the impotence of CAN-SPAM as a tool for consumers, the Courts have held that damage by spamming does not include wasted time, wasted computer resources or even wasted money in having to buy spam filters and other routine business expenses.

The Courts that have ruled on CAN-SPAM and its application to regular email spam sent to consumers were influenced because the Plaintiff in at least one of the seminal CAN-SPAM cases was suing spammers repeatedly and using CAN-SPAM to make money. Apparently the Courts felt that email spamming to make money is ok but consumers using laws against email spam to sue money making spammers is not what Congress intended with the law.

Consumers can sue under State and Federal fraud and deceptive trade practice laws but again, must show more damage than the business expenses associated in combating spam.

As it stands now, CAN-SPAM , is pretty much useless as a tool for consumers to protect themselves from commercial spam. As a result, our email inboxes are full of virus infected, time wasting emails that only a spam catching software making company could love.

Text messaging, however, is a different story. Consumers do have a remedy under the Telephone Consumer Protection Act 47 U.S.C. § 227 (TCPA). Clearly, just by the name of the the act related to consumer protection, Congress intended to have the courts actually protect consumers from text spam and other abuses of mobile and land phones by spammers and others who like to intrude on the privacy of others.

Because of the greater intrusiveness of text spam and because computers can send spam text messages automatically to any and every possible phone number without legal protection, text spam is virtually impossible to stop. Thankfully, Congress and the Courts have given teeth to the TCPA.

Under the TCPA any consumer who is sent an unsolicited text from equipment capable of automatic dialing has a cause of action to enjoin (get court order to stop) the text spam and has a right to compensation of at least $500.00 per unsolicited text message or actual damages, whichever is greater. The Courts can also award triple damages for willful and knowing violations of the TCPA.

The TCPA specifically gives a cause of action to consumers to sue to stop text spam and to make spammers pay. The TCPA provisions giving consumers a private right of action under the law is clear:

(3) PRIVATE RIGHT OF ACTION.—A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State— (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions. If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph. 47 U.S.C. § 227.

Consumers now know that if they get text spam, if a company takes their cell number for one purpose (for ID or for appointments etc..) and then sends them spam commercial messages without specific permission to send automated text spam, they have broken the law. Consumers can sue directly, for at least $500 per illegal text, in direct money damages and also have the right to stop future text spam.

Under the TCPA consumers can take direct action to stop text spam and stop the misuse of their cell numbers that they provide for legitimate, non spam, business purposes. Common scams include companies that take cell phone numbers for informational purposes or for contact regarding appointments etc.. and instead, take those numbers and upload them to text messaging companies that then send out spam text messages. Other companies will purchase lists of cell numbers and broadcast text spam to those numbers. The law is clear that just because a consumer gives a cell number to a business for contact purposes that does not authorize the company to text spam them or to sell their cell number for others to spam.

Congress and the Federal Courts have the authority to protect consumers from Spam. They failed to protect consumers from email spam but consumers do have rights they can enforce to stop text spam. As a result, email spam is rampant and out of control. Text spam is under control, although there are still abusers that try to get around the laws, but when they get caught they must pay.

With email spam, the Courts and Congress have essentially refused to provide protection to consumers from email spam. As a result we all must deal daily with numerous email spam messages, we must pay for spam protection, our emails get lost in our spam catchers etc... The cost to consumers and businesses in lost productivity and hard costs for spam infected with viruses and other spam problems is in the billions each year. We need Congress to act to put the same consumer protections in the CAN-SPAM Act that it put in the TCPA. If Congress acts to provide consumers with the abiltiy to enforce CAN-SPAM, spammers will understand that email spam is not only wrong, and abusive it is also punishable with enforcement by consumers, we will finally be able to take back our email inboxes from the spammers.

[1] Gordon v. Virtumundo, Inc. 575 F.3d 1040 (2009)

Originally posted at The Legal Examiner by Ed Normand

Do Your Part To STOP Text Spam

Ed Normand — Sat, 29 Sep 2012 10:57:09 GMT

Mobile text spam is illegal. Two federal laws outlaw unauthorized spam text messages. The Can Spam Act and the TCPA (Telephone Consumer Protection Act) both provide consumers protection against unauthorized commercial text messaging. As consumer you have remedies to report and stop text spammers. Text messaging has not yet been infected by masses of spam to the degree that the cancerous like email spam has hurt the email system. The reason that mobile text spam has not spread as fast as email spam is because mobile phone users have rights and remedies to fight text spam. If we work together, using the remedies listed here, we can STOP text spam now.

First of all, know thy rights: Under the TCPA auto dialed spam text sent to a mobile phone is illegal if: (1) you did not give the sender permission to send you the text message or (2) it is not a text message for emergency purposes (as defined by FCC rules). Therefore, if you did not consent to the automated free Walmart (Target, Amazon, name that scam) Gift Card coupon text message, chances are it is not an emergency to send you that offer, and thus, it is likely illegal.

A common misperception is that spam text is permitted unless you have listed your number on the National Do Not Call List. Not true. Calls to a mobile number need not be on the do not call list to be banned and cellular text messages are calls under the TCPA. If, in fact, you did list your cell number on the National Do-Not-Call-List then you may have a second additional violation of the TCPA but it is not required.

So what can you do to STOP the illegal text spam?:

First you can report the spam phone numbers to the Federal Trade Commission (F.T.C.) and the Federal Communications Commission (F.C.C.). Both agencies have tools to report mobile spam on their websites.

Another option involves reporting the text spammers to your wireless carrier to block the numbers. Many of the cellular companies also claim to act on their own to block mobile spam. One may think twice about those efforts if the carriers are paid per text and so make money for every spam message that is sent and later blocked. Over millions of users and billions of messages, those text fees add up. Perhaps now that many users are moving to flat fee or unlimited text message plans the wireless carriers will have an incentive to block text spam as they no longer directly profit from each text message under those plans.

Additionally, as with email spam, text users can now purchase text spam filters to weed out unwanted commercial text spam. You can download apps for Android and the I Phone that can filter and block spam text. But in reality, based on our experience with email spam, these protections still result in wasted time, expense and often do not work well. Above all, why should consumers have to take action to keep from being harassed with ads on their own phone?

The best remedy for consumers is to take action against the mobile spammers. Under the TCPA unauthorized spammers owe $500.00 per text that they send to consumers in violation of the TCPA. The damages can even be trebled, yes another $1,500.00 per illegal spam text sent to consumers for intentional violations of the TCPA. Look for an attorney experienced in fighting illegal spam text. Remember if you have now, or if you have ever been sent spam text messages, the TCPA is a law that protects you and pays you up to $1,500.00 per text. If we all work together to enforce the TCPA through private action, we will protect our privacy and protect our text messaging from being ruined by spam like email has been ruined by spam.

Originally posted at The Legal Examiner by Ed Normand

Family of Electrocuted Girl Files Suit against Time Share

Council Wooten — Wed, 26 Sep 2012 15:12:00 GMT

The family of an 11-year-old girl who was electrocuted to death at Orange Lakes Resort in Orlando has filed a wrongful death suit, according to sources. The girl was on vacation with her family, playing miniature golf at a time share resort, when she was electrocuted as she recached into an artificial pond for her ball in June. The wrongful death suit, filed in Orange-Osceola Circuit Court, claims the resort was negligent in its repairs to electrical components.

The girl’s parents and her brother rushed to the pond as another guest attempted to save her. The lawsuit is seeking emotional and punitive damages upwards of $27 million.

“The priorities of the family are to find out exactly what happened and who’s responsible,” said the attorney representing the family. “And hold the resort accountable for the loss of their only daughter. They are absolutely devastated by this loss.”

The lawsuit alleges that the resort used an uncertified electrician to replace electrical equipment. There is no excuse for resorts to put their guests at risk to cut costs. Please visit our website for more information on tourist injuries and please contact our office for a free consultation.

Wooten, Kimbrough & Normand, P.A.—Orlando wrongful death attorneys.

Originally posted at The Legal Examiner by Council Wooten

Recent Parasailing Death Stirs Painful Memories for One Family

Orman Kimbrough, Jr. — Wed, 12 Sep 2012 11:29:00 GMT

The recent parasailing accident fatality of Kathleen Miskell in Florida has caught the national media’s attention and has forced one family to relive some painful memories, according to the Sun-Sentinel.com. Miskell was killed after falling 200 feet into the water after the cable snapped while she was parasailing. Almost five years ago to the day of Miskell’s death, Amber May White, 15, died in a parasailing accident. Amber was parasailing in Florida with her sister Crystal, 17, when strong winds from a storm caught their parachute and dragged them towards the shore and onto a hotel roof. In both White’s case and Miskell’s, the line anchoring them to the boat broke.

Shannon Kraus, White’s mother, believes her daughter’s death was overlooked by the public. She was horrified to hear of the latest incident.

“I’m a little person and no one listened to me,” says Kraus. “I feel like if that had been a senator’s daughter or a governor’s daughter, they would have done something about it. This family didn’t have to go through this. I’m grieving this day, not only for my loss but for someone else’s loss.”

It is worth noting that Kathleen Miskell’s incident did not occur during a storm like the one involving Kraus’ daughters. Kraus’ attorney, John Leighton, is pursuing legislation to regulate the largely self-governed industry. Leighton has been in contact with the Water Sports Industry Association in an attempt to implement more regulations in the industry.

"You've got an activity that by and large is an incredibly safe activity," said Larry Meddock, executive director of the Water Sports Industry Association. "The number of accidents is extremely low and the number of fatalities is extremely low, but one death is too many. It's just tragic that we have to lose a life before somebody does something. I'm very frustrated."

For more information on tourist injuries, please visit our website.

Wooten, Kimbrough & Normand, P.A.—Orlando wrongful death lawyers.

Originally posted at The Legal Examiner by Orman Kimbrough, Jr.

Tort Reform "Savings" to Medicare Non Existent

Ed Normand — Tue, 04 Sep 2012 10:01:38 GMT

Professor Charles Silver and a team of researchers from prominent law schools' including Texas and Northwestern, studied the claims of cost savings attributed to the passage of severe tort reform in Texas that limits and caps damage awards for consumers hurt by physicians, hospitals and other health care providers.

The theory was now that physicians are virtually immunized from lawsuits they would stop practicing "defensive" medicine and order fewer medical tests. Since the medical malpractice caps passed in Texas in 2003 there has been virtually no appreciable decline in medical spending levels and, interestingly, some evidence of increased physician spending since the lawsuit limits on damages.

This confirms what we knew already. It is not defensive medicine that increases costs. It is offensive medicine that increases costs. As long as physicians and hospitals get paid more for each procedure and test they do, they will do more. Simple economics. They get paid to test so they test. Fears of lawsuits have nothing to do with it. If you want to reduce the cost of medical care get rid of the blank check that Medicare and others give to physicians, hospital and other providers to get paid more and more as they order and do more and more. My guess: cut down on the unnecessary procedures and you will also see fewer lawsuits.

Originally posted at The Legal Examiner by Ed Normand

STOP Labor Day (and Everyday) SPAM Text Messages

Ed Normand — Mon, 03 Sep 2012 09:00:27 GMT

My guess is that many of us had a "friendly" spam message interrupt your Labor Day festivities. In between flipping burgers you heard your phone chime that you got a text message. You put down the spatula, rush over to pick up the phone and immediately migrate to the SMS inbox to make sure that your guests are on time or that your wife and kids are ok. Instead you see an unasked for spam telling you about some crummy special sale for Labor Day, some prize you can win or some deal only for you and 10,000 others. You delete it, put down the phone and get bag to your burgers, some of which are now burnt. You curse the test message intrusion but do nothing about it. Hold on, you can and should do your part to stop text spam.

Most unauthorized spam is illegal. Unlike email spam, however, you can do something about text spam. Under the Telephone Consumer Protection Act (TCPA) you are entitled to damages of $500.00 per spam text message that was auto dialed without your consent.

Here is how it works: The TCPA is a Federal Law designed to protect consumers from marketing and debt collecting abuses over the telephone. The act governs not only cellular phone calls but also cellular text messages including SMS messages. Under the TCPA, unless a consumer specifically consents to getting text messages (consent must be authorized explicitly and is best done as a written opt in program), they may not be sent automatic dialed text messages. Only auto dialed messages are against the law in order to prevent mass text spam abuse. The point is that if a business wants to take the time to manually dial its customers, that is not likely to be overly intrusive and more likely to have a legitimate direct business purpose, hence, it is not illegal. Automatically dialed messages, however, can be mass cast to millions at little to not cost to the sender but at huge cost to the consumers getting the spam text. These spam text are generally shot gun ads that intrude on many but serve few.

The TCPA is designed to stop the mass text spam. It does so with a $500.00 penalty per illegal text message. If you get an autodialed, unauthorized text message you are entitled to $500.00 per message.

Text messaging is huge now and getting bigger every day. According to Wikipedia, in 2010, 6.1 trillion SMS text messages were sent, averaging 193,000 such messages every second. Of course, it is now a huge commercial service with SMS fees alone generating $114.6 billion globally in 2010. The problem, however, is that SMS and other text message services are generally not free. The worldwide average cost for each SMS message is $0.11. When advertisers plug their products without permission over text messaging services they do so at little cost to them but the consumer (or business that owns the phone) pays for the text message. Many advertisers will claim that because often unlimited or bulk text messaging is purchased that the some consumers pay nothing for the text message. Not true. Not only do consumers and businesses pay in lost productivity, wasted time and distraction from spam text, there is a cost for each text message, even on an unlimited text plan. As we all know, nothing is free. Unlimited texting plans cost money just as per text plans do. The difference is that they charge in bulk instead of per text. So if our text messaging usage increases substantially due to marketing spam via text then the wireless carriers costs will increase, demand for the text services will increase and the costs will eventually be passed on to consumers. The TCPA outlaws junk faxes for much the same reason, auto dialed fax spam costs the sender very little but the consumer pays in ink, paper, phone time, and more importantly, wasted time and attention.

The best part about the TCPA and the $500.00 per text penalty is that it works! Like the junk fax penalties that have kept your fax machine operating free from most junk faxes, the text message inboxes of most consumers are relatively spam free. Compare that to your email inbox. Likely you got dozens of email spam this week. The TCPA keeps your text inbox either clean or full of messages that come with a $500.00 reward if you care to take action about them. Many times mass text abuse cases can be pursued as a class action to enable abusers to be brought to justice for all the illegal texts without courts being clogged up with millions of individual lawsuits alleging $500.00 violations.

Most businesses are careful not to break the law. But there are always cheats out there. the ones who think they can get away with it or who just do not care what the law is, they want the sale. Today, Labor Day, is one of those holidays that text spammers may be tempted to send out a spam ad to customers via text and in turn they will interrupt family fun and precious holiday time and cost you money. If they interrupt yours, maybe you should ask them to pay you the $500.00 per auto dialed text message that they now owe you.

We cannot protect our lives from everything we can do something about nuisance text messages. Act now to STOP text abuse!

Originally posted at The Legal Examiner by Ed Normand