The Case(s) Against Schneider: Explained

We represent many families who will be assisting with criminal charges and pursuing civil claims against Jacksonville Dentist Dr. Howard Schneider.  Dr. Schneider has been practicing pediatric dentistry in Jacksonville, Florida for over 40 years.  Recently several victims came forward publicly and created a groundswell, and have alleged Dr. Schneider did the following to their children (ages 3-6 years old):

Was physically abusive of patients, including punching them in the chest, bruising their necks and faces, had staff sit on them to restrain them and more;

Doing procedures while children are strapped down without notice to the parents, strapping down patients when not warranted and restricting parents from being in the room with their children;

Was verbally abusive of patients, telling them to shut up, using expletives like “f—k” to them, telling them they better be good or he will use additional force and apparently telling one child she wouldn’t see her mother again if she didn’t be a good girl;

Conducted multiple unnecessary tooth extractions, caps, crowns and other procedures;

Conducted invasive procedures done without the parent’s knowledge or consent or where parents were completely forbidden from going back with their child;

Conducted dental work such as performing fillings, crowns, and extractions done without the use of anesthesia or without letting it to take effect;

Causing unnecessary harm, cuts and damage to children’s tongues, lips and/or gums, including one case where he split the corners of a child’s mouth further open;

Conducted procedures to maximize insurance proceeds to his office, systematically maximizing medicaid billing and often doing unnecessary or extra dental work and other billing violations / insurance billing issues;

And other violations and breaches which are coming out from hundreds and hundreds of former victims over decade.

There are essentially several ways that Dr. Schneider can be criminal and civilly prosecuted.

Possible criminal charges include:

827.03 – Abuse, aggravated abuse, and neglect of a child.  This covers an intentional act that could reasonably be expected to result in physical or mental injury to a child or a caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child, among other things.

409.901-409.9205, 817.234 – Medicaid or insurance abuse or fraud. Abuse is when the provider practices that are inconsistent with generally accepted business or medical practices and that result in an unnecessary cost to the Medicaid program or in reimbursement for goods or services that are not medically necessary or that fail to meet professionally recognized standards for health care or where the recipient practices that result in unnecessary cost to the Medicaid program. Fraud is the intentional deception or misrepresentation made by a person with the knowledge that the deception results in unauthorized benefit to herself or himself or another person. The term includes any act that constitutes fraud under applicable federal or state law.

784.011-784.045, 784.05 – Battery, Culpable Negligence.

And more.

Possible Administrative Violations include:

In addition to other violations, there are allegations which support the following:

466.028 Grounds for disciplinary action; action by the board.—

(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

(l) Making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry.

(m) Failing to keep written dental records and medical history records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results, test results, and X rays, if taken.

(n) Failing to make available to a patient or client, or to her or his legal representative or to the department if authorized in writing by the patient, copies of documents in the possession or under control of the licensee which relate to the patient or client.

(o) Performing professional services which have not been duly authorized by the patient or client, or her or his legal representative, except as provided in ss. 766.103 and 768.13.

(s) Being unable to practice her or his profession with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon a finding of the State Surgeon General or her or his designee that probable cause exists to believe that the licensee is unable to practice dentistry or dental hygiene because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department. If the licensee refuses to comply with such order, the department’s order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the licensee resides or does business. The licensee against whom the petition is filed shall not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in s. 51.011. A licensee affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that she or he can resume the competent practice of her or his profession with reasonable skill and safety to patients.

(t) Fraud, deceit, or misconduct in the practice of dentistry or dental hygiene.

(u) Failure to provide and maintain reasonable sanitary facilities and conditions.

(x) Being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, including, but not limited to, the undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience or being guilty of dental malpractice. For purposes of this paragraph, it shall be legally presumed that a dentist is not guilty of incompetence or negligence by declining to treat an individual if, in the dentist’s professional judgment, the dentist or a member of her or his clinical staff is not qualified by training and experience, or the dentist’s treatment facility is not clinically satisfactory or properly equipped to treat the unique characteristics and health status of the dental patient, provided the dentist refers the patient to a qualified dentist or facility for appropriate treatment. As used in this paragraph, “dental malpractice” includes, but is not limited to, three or more claims within the previous 5-year period which resulted in indemnity being paid, or any single indemnity paid in excess of $25,000 in a judgment or settlement, as a result of negligent conduct on the part of the dentist.

Finally, civil claims can include:

Intentional torts based on abuse to a minor, professional negligence / medical malpractice, civil battery or assault, false arrest or inappropriate restraint, as well as various forms of fraud, theft and conversion.

The medical malpractice statutes, Chapter 766 of the Florida Statutes, imposes strict pre-suit notice and screening requirements for medical negligence claims. The Florida Supreme Court has read the two definitions of “medical negligence” found in 766.106 and 766.202 together, and concluded that medical negligence claims are claims that arise out of the rendering of, or the failure to render, medical care or services.  While the courts have carved out exceptions of sexual battery as not apart of the rendering of medical services, any injury or harm that comes during the rendering of professional services comes under the medical malpractice act.

Further, in Paulk v. National Medical Enters., 679 So. 2d 1289, 1996 Fla. App. LEXIS 10045, 21 Fla. L. Weekly D 2105 (Fla. Dist. Ct. App. 4th Dist. 1996), allegations that the defendants defrauded their patients by extending their hospitalization, without medical necessity, so that they could exhaust available insurance coverage, were held to be subject to medical malpractice law as well.

The test for determining whether a defendant is entitled to the benefit of the pre-suit screening requirements of section 766.106(1), Florida Statutes (1989), is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1). Weinstock v. Groth, 629 So. 2d 835 (Fla. 1993) (citing NME Properties, Inc. v. McCullough, 590 So. 2d 439 (Fla. 2d DCA 1991)). Under section 766.106(1)(a), a “claim for medical malpractice” is defined as “a claim arising out of the rendering of, or the failure to render, medical care or services.” The term “medical negligence” is defined in section 766.202(6) to mean “medical malpractice, whether grounded in tort or in contract.”

Further, the courts have said, “Under section 766.202(6), we don’t think it much matters whether the plaintiffs’ claim is framed as an intentional tort or instead as negligence. The legislature was aware of the historical development of the tort. One early theoretical underpinning of claims for medical malpractice was the intentional torts of assault and battery–the departure from the standard of care constituted an unconsented touching of the patient’s body. See, e.g., Pratt v. Davis, 224 Ill. 300, 79 N.E. 562 (1906) (damages for surgery to remove patient’s ovaries without her consent affirmed on theory of trespass 2Link to the text of the note to patient’s body); Birnbaum v. Siegler, 76 N.Y.S. 2d 173, 273 A.D. 817 (1948) (consent to surgery obtained by fraud invalid; surgery so performed constitutes assault on patient).” Paulk v. National Medical Enters., 679 So. 2d 1289, 1996 Fla. App. LEXIS 10045, 21 Fla. L. Weekly D 2105 (Fla. Dist. Ct. App. 4th Dist. 1996).

We hope all of the victims will consult with a professional medical malpractice lawyer.

High Levels of Formaldehyde Found in Lumber Liquidators Laminate Flooring

In the most recent episode of 60 Minutes, it was alleged that the United States flooring producer, Lumber Liquidators, has been producing laminate flooring that contains unsafe levels of formaldehyde. All of Lumber Liquidators’ laminate flooring that was produced in China failed to meet the formaldehyde emission standards set by the state of California. It is estimated that the toxic floors have been installed in hundreds of thousands of homes across the country.

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Formaldehyde, which is a common ingredient in the glue used to create laminate flooring, can cause myeloid leukemia and other cancers when exposed at high levels, as well as respiratory issues and eye, nose and throat irritation at low levels. The levels of formaldehyde in Lumber Liquidators Chinese made floors are high enough that they may cause significant adverse health risks, especially in children. These floors are not safe.

California has a formaldehyde emission standard for all products being sold in the state. Congress adopted and implemented the standards set by California when it enacted the Formaldehyde Standards Act in 2010. In a study discussed by 60 Minutes, every sample from Home Depot and Lowes’, as well as the American produced Lumber Liquidators’ samples, passed the formaldehyde emissions tests. However, every single Chinese made Lumber Liquidator sample failed to meet Californias formaldehyde emission standards.

Not only did these floors fail to meet emission standards, but they contained, on average, six to seven times the legal limit for formaldehyde. Some of the samples contained up to 20 times the legal formaldehyde limit.  The samples were testing at such high levels that the lab technicians analyzing the samples thought that their laboratory equipment was malfunctioning.

When 60 Minutes approached Lumber Liquidators’ founder and chairman, Tom Sullivan, about the test results, Sullivan claimed that the tests were invalid and that Lumber Liquidators is not required by law to test finished products.

Lumber Liquidators is now at the center of a class action lawsuit being brought by the nonprofit group, Global Community Monitor, and environmental attorney Richard Drury. As many families around the country are having to tear up their floors because it may be making them sick, the nonprofit group is seeking to have Lumber Liquidators held accountable for their distribution of unsafe products.

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When Anderson Cooper of 60 Minutes asked the executive director of the Global Community Monitor,  Denny Larson, how much it would cost to replace all of the toxic floors that have already been installed in American homes, Larson responded, “You know what? I don’t care. Because they’re guilty of selling people product that could make them sick.”

“Our goal is to sell a good product at a good price,” Sullivan of Lumber Liquidators said. “And we don’t get the price by skimping on anything. We get the price by low overhead, huge volume and being very efficient at what we do. And we’re never going to sell something unsafe.” Unfortunately for Sullivan, and Lumber Liquidator customers, it appears that the flooring wholesaler has done just that – produced a dangerous product.

60 Minutes sent an investigative team to China to look into the mills that supply Lumber Liquidators with their laminate flooring. Posing as buyers and with the use of hidden cameras, the team were told by employees that the mills were indeed using core boards with higher levels of formaldehyde to save the company up to 15% on price. The three Chinese flooring mills also admitted to wrongfully labeling products as CARB 2–compliant when they knew that they were not.

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What is considered CARB 2-compliant? CARB stands for California Air Resources Board. This is the board that sets the acceptable levels of formaldehyde (and other emissions) that can be contained in a product.  If a product passes the emissions standards set by CARB, including formaldehyde emissions, the producer of the product can place a CARB-2 compliant label on its products.

Every package of Lumber Liquidators laminate flooring wrongfully had a CARB-2 compliant label on it. Including this label indicates that their flooring is a safe product, when in fact it is not. Manufacturers must label their products in such a manner as to warn any potential consumer of all dangers associated with the product’s proper and foreseeable uses. All possible hazards associated with the product should be stated on a proper warning label.

Falsely labeling products as CARB-2 is almost the exact opposite of placing a disclaimer or a warning label on a product. Instead of revealing a dangerous characteristic, the manufacturer is wrongfully using a label to further conceal a dangerous defect.

This is not the first time Lumber Liquidators has been under the microscope for their wrongdoings. In 2012 they were accused of illegally harvesting lumber in Russia to increase profit margins. While Lumber Liquidators denies these allegations of illegal logging, the company announced this week the Department of Justice may be pressing criminal charges against the company in the near future.

It apprears that Lumber Liquidators is going to have a serious products liability case on their hands. The evidence against them is overwhelming and it is likely that more evidence will come forward as 60 Minutes has placed this story into the national spotlight. I hope that the individuals and families who have been taken advantage of both physically and financially find justice when this issue concludes.

Each year, thousands of victims sustain serious injuries from dangerous and defective products. Home appliances, foods, drugs, automobiles, medical devices, medical implants, and a variety of countless other products used by consumers every day can go wrong and cause catastrophic injuries and deaths.

Severe personal injuries and wrongful deaths could be avoided if the manufacturers or distributors of these products took reasonable steps to ensure consumer safety. If you or a family member or loved one has been injured, or died, as a result of injuries due to the use of a dangerous or defective product, you may be able to file a claim against the manufacturer to recover damages. You do not necessarily have to prove that the manufacturer was negligent.


We invite you to review our verdictsour accolades and awards, and what clients have to say about us and give us a call for a free consultation where our lawyers will sit down with you personally. Our firm represents clients in Florida, Georgia and Alabama with passion and compassion. Feel free to give the Law Offices of John M. Phillips a call at 904-444-4444.

Dr. Martin Luther King, Jr. Parade – – January 19, 2015 – – Jacksonville, Florida

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We invite our clients, friends and supporters to join us on January 19, 2015, as we walk in the Parade honoring the life of Dr. Martin Luther King, Jr.  Please RSVP by emailing parade@floridajustice.com and let us know who is coming.

What are we doing?

Ron Davis, the fa10915211_1058833680809842_6210152138165362972_nther of Jordan Davis is a guest of the MLK Parade. He will be riding in a convertible.  After Ron, we are bringing the law office Boom Box and the families of Jordan Davis, Brandon Green and Leo Little (among possible others) will be walking with the attorneys and some staff from our office.

We have thousands of memorial wristbands to give out, as well as koozies.

Where to Meet?

We will meet in Lot J of the Everbank Field football facility.  However, you cannot park at that facility.  And you cannot drive your own car in the parade.  You must walk it or ride with us.

You have two parking options – Parking for parade participants is at the Prime Osborn.  you can then get a shuttle to the stadium.  You must be with us at the staging area in Section A of lot J stadium by 8:30 AM.

Here is the shuttle information:

MLK3

 

We will be meeting at my office located at 4230 Ortega Blvd., Jacksonville, Florida, at 7:15 AM.  Do not be late.  We will be leaving by 7:30 AM.  Some will be going to the Prime Osborn.   Some will be going with the boombox and Ron’s car to the parade route.  We will meet up before 8:30 at section A of lot J.

 

 

MLK2

 

If a car is dropping you off at the stadium, they must drop off at Lot D:

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Parade

The Parade starts at 10:00 AM.  We are in the front so need to be ready to go, without distraction, by 9:30.  Here is the Parade Route:

 

 

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It is a little bit of a walk.  You can always stop if you want along the way.  Wear comfortable shoes and clothes.  It is supposed to be sunny, but chilly.

 

Landing

After the parade, some will go home and some will assemble at the Landing to support Ron and others speaking.  We have a little tent there.

 

Rules

Please review the rules for the Parade.

 

 

MLK1

Facebook’s Facial Recognition Feature – Big Brother is Watching and Storing

 

67919A23-03F0-4ABD-8152-2D440A77B8CDFacebook is scanning over 100 million photos per day, as its users upload photos and “tag” (or associate names with the people depicted) those photos.  Computers are refining algorithms and learning your face.  Automatic face recognition is becoming advanced and Facebook is making it a larger part of the Facebook experience.  Imagine taking a photo of a STRANGER and learning his/her name, age and address within SECONDS.  It’s coming… as are WILD LEGAL ISSUES.  As always, it is fine to embrace technology, but always be smart and cautious of issues that could arise from it.

AC684E87-FE1A-45B0-A82F-68FADE2DC3ECThe warning first came from Facebook’s rival, Google.  Eric Schmidt served as Google’s CEO from 2001 until recently.  He claims Google created “face recognition” technology and stopped progressing with it because of concerns. Why?  He said Google wanted to be a “DO NO EVIL” company and considers the moral impact of its inventions.  He described the facial recognition software as “creepy” and “potentially harmful.” Wow, strong words, especially from a company that has a car running around nearly every city in the United States filming “street views” of exactly what our homes look like.

He said:

“If you imagine, for example, what a perfectly executing evil dictator would do with all this technology — complete supervision, complete tracking, and so forth — and then you imagine what the dissident in that society would do, using the very best encryption tools and so forth, unfortunately you conclude that exactly the same tools are the ones that would be used by terrorists against an open society.”

He also suggested some company will “cross that line.”  Clearly, he knew that company would be Google’s rival, Facebook, and the internet giant has come close to doing just that.  Of course, you have to look at some of the dramatics as “business puffery.”  However, Facebook’s version of facial recognition software has examined over 23 Billion photos over the past few years.  It continues to review billions and Facebook is allowed to collect information per its user disclaimers- even metadata- the hidden stuff like GPS and dates in your photos.

4EFDC71C-4278-4BAB-A20C-855D3C7BDD40Facebook has and will continuously advance its “Tag Suggestions” features, using facial recognition technology to speed up the process of labeling friends and acquaintances that appear in photos posted on Facebook.  This is made easier as the computer database “learns” the faces from the billions of photos in its system.  However, experts say that faces are not so different and technology is not yet at the point where it can pick out faces, with consistency, in more than a small ratio.  In other words, don’t expect Facebook or any other company to be able to automatically associate your face with your name outside of comparing it to just a few hundred others.  But that is the next step.

4F75721E-8085-4D0B-B206-2BEB94A78AB3The technology has raised eyebrows in some circles.  Some allege Facebook is invading rights with its failures to disclose that it is (and has been) using face recognition software to advance “tagging” to the next level, which for some will make sharing photos very simply and almost immediate.  Facebook has countered these claims noting that the photo-tagging suggestions are only made to newly added photos, that only friends are suggested and that users can disable the feature in their privacy settings.  Right now, it is harmless enough and a pretty exceptional technology… unless you think about it at the level Eric Schmidt thought about it.

500 to 800 million users, the ability to collect data on each and every member, the ability to “map” each user’s face (as well as the faces of non-Facebook friends) and geographically sort these based on location of upload or other tags and, well, you begin to raise privacy issues.

There is little law on the books or on the horizon.  Eric Schmidt says he expects LAWS WILL FOLLOW the technology.  He urged lawmakers to hold off and see how advances developed instead of preemptively overreacting and stifling technology. We agree, but there is grave need for monitoring and legislating to protect abusive use of this data.

Add just a little advancement in the technology or rogue software using it and one could easily see a situation where Facebook, or facial recognition, begins to intercede with reality.  How?  A guy sees a cute girl on the street and snaps a quick photo of her on his smart phone.  Within seconds, the algorithm gives him a few local choices, he picks the best match and has her name and other information right at hand- creepy and an invasion of privacy.  What if a criminal noticed her in a store buying a nice item or withdrawing money at a bank?  That same photo could lead to information that could lead to the opening up of a network of information whereby the crook could click his way all the way to her home address.  It’s not that unrealistic and is the next step of concerns.  It ends with a system whereby we all can be digitally identified more easily and privacy further fades into the past.

I criticize Facebook’s decision to automatically enable the facial-recognition technology for Facebook users, rather than allow them to OPT-IN.  Further, Facebook needs to protect and make sure no information is available to the public from its computer database and that other applications and software cannot tap into it.  In fact, it probably shouldn’t be “studying” faces of those who have opted out.

 

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Check your privacy settings if you want to opt-out of this feature.  You do so at the screen above.  Stay tuned for more updates as we learn more about this interesting issue.

Facebook Privacy Policy – Your Posts “Opting Out” Don’t Matter

facebook_privacy_comic_brian_farrington Every few months, someone crafts a post or reposts an idea and it takes off with viral contagion. Essentially, the Facebook poster posts that he or she is “reserving,” “protecting” or “claiming” rights to material (photos, posts, etc.) he or she published to Facebook.

One problem- it is legally insignificant. 

Although Facebook isn’t actually claiming a specific copyright to your personal information, photographs, and other material that their users are posting to the social network, it does claim rights to use this material.  It can’t sell your photos as art or use plagiarize your words in its own book, but its invasion is much deeper.  Facebook certainly has rights to use, collect, store and even sell any information you provide (or provided by others about you) according to the license (aka contract) you entered into with Facebook.  It is like the information on the back of your ticket you receive at a parking lot, dry cleaner, sporting event or the like.  You may not have ever read it, but it is your contract and entirely enforceable.

A post “opting out” is therefore waste of time and meaningless. The terms you agreed to when you signed up for a Facebook account are non-negotiable on your end and you basically signed your digital life away.  Facebook is watching what you do and stockpiling information about you.  It is simply unavoidable unless you leave.  Even then, some of the harm has already been done.

If you want to know what Facebook can and cannot do, take an hour and read the Terms (a.k.a Statement of Rights and Responsibilities) and the Data Use Policy.

Facebook-PrivacyToo lazy, but still want to be freaked out?  You agreed to basically allow facebook to analyze the visible data of that which you post, but also analyze the hidden metadata of items you upload, such as the time, date, and place you took the photo or video- things you don’t even know are there.  It also collects information about the date and time you visit many websites, including the web address, technical information about the IP address, browser and the operating system you use; and more.  Facebook also knows your GPS coordinates at pretty much any given moment.  All user submitted content, even that which you don’t know you are submitting such as meta-data and cookies, is shared with the government and other businesses. It is the sacrifice for it being a free site enjoyed by 100s of millions.

And it is not just you.  Your friends can tag you and your face.  With a couple photos tagged, Facebook’s facial recognition feature can pick you out of crowds.  That information often remains on a computer even if you delete your account.  You allowed this by having an account.  More about facial recognition is located HERE.

The only way to remedy that is to terminate your license and get off Facebook forever. So, there you go.  This post is SNOPES tested and approved.

 

 

 

 

“Freeway Protestors”: A Legal View

Recently, a trend in protesting the deaths of both Michael Brown and Eric Garner has gained some traction around the United States. Aside from all of the other (several) forms of protesting that have taken place, one of them is for protestors to move as a mass onto a highway or interstate, usually at peak travel hours with the intention of stopping traffic. Effective? Probably. Safe? Not at all. Legal? No. They are often referred to as “freeway protestors.” In several cities including Los Angeles, Ca, to Cincinnati, Oh, to Jacksonville, FL and many more, protestors have been creating human barricades to stop traffic.

While this is a much more peaceful form of protest than rioting and other violent acts, it may not be the best means to get a message across. Children are arriving late to school and workers are showing up late to work. Today, on I-95 south, near the Emerson exit (for those of you familiar with the area) a “Freeway Protest” took place. 95 northbound was backed up for miles while protestors took their stand. In the end, one person was arrested, no one was injured and after about an hour or two traffic was back to its normal mid-morning crawl.

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There are limited laws regulating the new trend of protestors shutting down state highways and federal interstates, as this was not a foreseeable means of protesting.   Here are some of the most applicable Florida Statutes, especially where a vehicle is used to stop traffic initially.  However, the violations do not institute enough punishment.  It is extremely dangerous and not only exposes the person in the roadway to criminal liability, but also for any resultant civil liability resulting from consequential negligence.

The most applicable violations:

316.183(5) Unlawful speed.— No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

316.130(4) Pedestrians; traffic regulations.— Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the shoulder on the left side of the roadway in relation to the pedestrian’s direction of travel, facing traffic which may approach from the opposite direction.

316.130(5) No person shall stand in the portion of a roadway paved for vehicular traffic for the purpose of soliciting a ride, employment, or business from the occupant of any vehicle.

316.071 Disabled vehicles obstructing traffic.—Whenever a vehicle is disabled on any street or highway within the state or for  any reason obstructs the regular flow of traffic, the driver shall move the vehicle so as not to obstruct the regular flow of traffic or, if he or she cannot move the vehicle alone, solicit help and move the vehicle so as not to obstruct the regular flow of traffic. Any person failing to comply with the provisions of this section shall be cited for a nonmoving violation, punishable as provided in chapter 318.

316.194 Stopping, standing or parking outside of municipalities.—

(1) Upon any highway outside of a municipality, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park, or so leave the vehicle off such part of the highway; but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles, and a clear view of the stopped vehicle shall be available from a distance of 200 feet in each direction upon the highway.

For more information on Florida laws regarding this issue or any of the situations mentioned above, feel free to contact our office at 904-444-4444. Or visit our Facebook page,

We invite you to review our verdicts, our accolades and awards, what clients have to say about us and to give us a call for a free consultation. Our lawyers will sit down with you personally. John represents clients in Florida, Georgia and Alabama with passion and compassion and is a Board Certified Expert in Civil Trial Law according to the Florida Bar.

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If injury or trouble finds you, call us at 904-444-4444 .

MCS-90 and the Motor Carrier Act of 1980: What You Need to Know

The Basics: What is MCS-90 and the the Motor Carrier Act of 1980?

In an effort to reduce the amount of regulations that applied to motor carriers for hire, Congress passed the Federal Motor Carrier Act of 1980. One of the primary goals of the Act was to increase price competition amongst trucking companies as well as reduce and simplify the growing regulations being placed on motor carriers. Despite its final goal, one of the most beneficial residual effects of the passing of the Act was that it narrowed the standard for proof of financial responsibility amongst trucking companies through the Act’s inclusion of the MCS-90 form. To this day the MCS-90 remains one of the more misunderstood forms in the civil litigation, insurance and motor carrier world. To emphasize the confusion that I aim to clarify in this post, MCS-90 requirements have been continually misapplied by motor carriers, business owners, insurance companies, lawyers and judges alike.

The Federal Motor Carrier Act of 1980 requires by law that each motor carrier participating in for hire commerce, is required to show some form of proof that they have the financial responsibility equal to or greater than the minimums set by each state. This is done through the utilization of the MCS-90. The MCS-90 requirement adds an extra blanket of financial security to not only the drivers that are employed by motor carrier companies, but also to those who share the roadways with motor carriers.

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This is a small portion of the MCS-90 form.

 

MCS-90 is not Insurance

Before moving forward, in full disclosure, this post is not legal advice, and nothing in this article should be interpreted as legal advice. The MCS-90 is wrongfully believed by many to be a form of insurance required by motor carriers. Like insurance, all for-hire carriers must have an MCS-90. However, the MCS-90 is not insurance in itself, but more of a guarantee that the motor carrier has shown proof of financial responsibility – that the carrier has some source of funds to cover a loss in which the insured is found to be legally liable. The Act requires that motor carriers provide documentation that they have the federal minimum level of financial responsibility to cover any potential liabilities that may arise. The MCS-90 requirement primarily benefits the public by ensuring that motor carriers, if found liable, have the monetary ability to cover any damages that may have been caused by the motor carrier. The MCS-90 makes sense – most motor carriers are trucking companies that employ semi-trucks, busses and other exceptionally large vehicles – the class of vehicles that cause a higher degree of damage when involved in a traffic incident.

The MCS-90 is almost an umbrella policy of proof that a motor carrier has the resources to covert all potential or foreseeable damages of all of the vehicles used by the motor company. The MCS-90 states that it, “covers all vehicles owned, operated, or maintained by the insured regardless of whether or not each motor vehicle is specifically described in the policy.”  But if a claim is paid out under the MCS-90, the insurer may recover its losses by subrogating the claims paid against the motor carrier.  Because the MCS-90 is not insurance in itself, and is a federal requirement, it is not the motor carrier’s insurer’s obligation to determine the motor carrier’s financial responsibility, it is the motor carrier’s obligation.

 When Does the MCS-90 apply?

To whom and to when the MCS-90 requirements apply is one of the most misunderstood aspects of the entire Motor Carrier Act. A motor carrier is defined by the Federal Motor Carrier Safety Administrations (FMCSA) as, “A company which employs large semi-truck and bus drivers.” However, the MCS-90, in some cases, is required not only by bus and semi-truck drivers, but also by any motor vehicle (even private smaller sized trucks) based on the type of cargo that it is carrying. Smaller sized trucks, if carrying hazardous materials will also have to abide by the Act (see below).

  • The MCS-90 applies to both interstate and intrastate commerce.

It is often wrongfully assumed that the MCS-90, because it is part of a federal regulation, only applies to motor carriers involved in interstate commerce. However, the MCS-90, by its own text, indicates that the federal requirements of the Act do not apply to motor vehicles based on the size, classification or if they cross state lines (interstate commerce) to conduct business, but more specifically on what cargo the motor vehicle is carrying. In effect, a smaller privately owned vehicle that makes deliveries of hazardous cargo intrastate will likely be required to verify proof of financial responsibility through the MCS-90. In short, the Act applies more to how dangerous the vehicle is based on multiple factors, mainly, the size of the vehicle or the cargo that it is transporting. The more hazardous the cargo being hauled, the larger the potential damages could be.  If a smaller truck, even if traveling intrastate, is hauling hazardous materials, the MCS-90 will likely be required by the carrier, even though it is intrastate travel.

In AmWINS Group’s article, “5 important things your should know about the MCS-90,” a great example is given, “a petroleum wholesaler that delivers gasoline or diesel fuel to their in-state customers via their own 10,000 gallon tank trailer would be an example of a private carrier operating intrastate. The federal regulations apply to this motor carrier as respects financial responsibility and proof of compliance in the form of the MCS-90 endorsement.” Again, the MCS-90 is just proof that the motor carrier or motor vehicle is in compliance with the federal regulations.

Proving Financial Responsibility

There are a few ways in which a motor carrier can prove financial responsibility as required by the MCS-90. A few of the most frequently used methods are:

  • The motor carrier has the option of insuring itself. To go this route, the self-insured motor carrier would have to show proof that they are financially capable of covering any potential liability or claims that may arise against the motor carrier for its own negligence.
  • The motor carrier can satisfy its proof of financial responsibility through a surety bond. This is basically like having a co-signor (third party) that promises to pay on behalf of the carrier if they fail to pay for any damages that they are found legally liable.
  • The motor carrier can choose to obtain its own private insurance. This is of course the most popular option for motor carriers.

What does it all mean?

This post is not, and should not, be taken as legal advice in any way. This issue is quite complex and often the target of litigants nationwide. One of the biggest topics that was not addressed in this article is how MCS-90 effects a motor carriers insurance and vice versa. I will certainly follow up with a post in the future that goes into more depth and detail as I traverse the seedy underbelly of the in-and-outs of the MCS-90, motor carriers. In conclusion, the MCS-90 is a very complex and confusing endorsement but one that is of significant importance to all motor carriers.

 

While it may appear to be an insurance certificate, in reality it is more.  It is an endorsement that shows proof of required financial responsibility, and all vehicles operated by for-hire carriers must have an MCS 90.

To see the full MCS-90 form, go here: http://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/MCS-90%206-19-14%20508.pdf

 

A Jury of One’s Fears: What Being a Juror Could Cost You

Most of us know a little bit about what being a juror really means. Some of us have a fictionally inflated version of what a jury is, compliments of Franklin, Bash, Ice-T and William Shatner. But what is being a juror, really?

There are questions upon questions surrounding how jury duty works; what is jury duty? How did I get picked? Why do I have to serve as a juror? The list goes on. You can find a reasonably fulfilling answer to most of these (and many more) questions here. However, the purpose of this post is not to provide you with an outline of all things jury related, but to delve into the monetary underbelly of what being a juror means to you financially and professionally. Continue reading

Click. Print. Gun.

A man in Japan was sentenced to two years in prison for manufacturing two guns with a 3-D printer. In addition to printing the two guns for himself, the 28-year-old Yoshitomo Imura also released his design data, which is needed to print a gun on a 3-D printer, on the internet. While gun control laws in Japan are far more restrictive than the gun control laws in the United States (it is illegal in Japan to possess or manufacture a gun) Imura’s sentencing makes him the first person in the world to receive a jail sentence for manufacturing a firearm on a 3-D printer. 

3D_Guns Although Imura was the first person to be disciplined for making guns on a 3-D printer, many people before Imura have created weapons on 3-D printers. The first 3-D printed gun, according to Forbes, was created over a year ago by the company, Defense Distributed (VICE even made a documentary on the subject). After producing its first 3-D printed gun, Defense Distributed told Forbes that it planned to test the weapon and then release the blueprints online for public access.

For use at home, one could use a 3-D printer to print literally anything within reason. Continue reading