Speed Kills - We Have Heard This Tragic Story Before !

We have all heard the story before. A young driver, out celebrating a birthday, gets behind the wheel of a 3,000 pound missile we call our cars, SUV's, trucks, or whatever we drive, and goes fast. The end is usually tragic. It devastates lives, and people will never be the same again. One of the unanswered questions in this car accident, is whether, the driver was intoxicated. He was only celebrating his 19th birthday, 2 years younger than the legal drinking age in Florida. So hopefully he was drinking at the time of the accident, or shortly before it happened.

If he was of legal drinking age, unfortunately, the bar or establishment that served him alcohol would have gotten away with devastating the lives of three families, "Scott Free." If we keep going down our current path in Florida of running the State like a business and allow businesses to change the laws for the benefit of businesses we will begin to see more and more examples of businesses "getting away" from being held responsible for their improper actions. The rights of the citizens are being slowly eroded in Florida.

The family of those who were injured or killed, in this horrible car accident in Sarasota, Florida on March 13, 2011. Although the families of A. Monroe, and K. Janis may have a claim against Mr. Leonard for his actions, they may also have other claims. There is no proof yet that Mr. Leonard was intoxicated at the time of the crash, but if it is established, they may bring an action against the establishment which served alcohol (if any) to Mr. Leonard, because of his age, for their loss. Also, the families of Mr. Leonard and Miss Leonard, who were killed may also have a claim against the same place. Had he been 21 years of age, they would have no recourse.

Florida does not have a Dram Shop Law. Although many Floridians believe and assume Florida does have these laws, it does not. Florida limits liability to 2 scenarios: First, it only provides liability if the alcohol was served to a minor; and Second if the alcohol was served to a "known habitual offender."

The first scenario is easy. If if the person who was served alcohol is a minor the server of the alcohol, whether a person or establishment, may be held responsible for the injuries sustained as a result of an accident, injury or tragic event.

The second is more difficult. The server, or establishment, which gives the alcohol to an adult, and the adult injures himself or others, will not face liability unless it can be shown that they actually knew the person receiving the alcoholic beverage was addicted to alcohol. While other states and jurisdictions create liability for serving alcohol to a person who is clearly intoxicated, that is NOT the case in Florida.

Florida Statute, Section, 768.125, states: "Aperson who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person."

The answer is simple, DO NOT DRINK and DRIVE!

Car Titles Can Make the Difference in Whether You Keep Your Car or Not in Chapter 7 Bankruptcy

Recently we had a  client who filed for Chapter 7 Bankruptcy to avoid a creditor demanding the client to carry a personal note in excess of $70,000.00 in order to agree to the short sale of a former residence.  After all was explained he chose to go down the path of Chapter 7 bankruptcy in Orlando because it made more sense than to pay over $70,000.00 over the course of 10+ years and have nothing to show for it.  The main issue in his bankruptcy was the fact that he had to buy back the equity in his wife's car.  At the time of the purchase, his wife was not present, so the car was titled in his name.  No financing was used to reduce the equity in the car.  The wife's name was never on the car title, and as such, he was required to buy back the equity from the Trustee with no reduction for the wife's interest even though it was her daily use car.  

In another example of how NOT to purchase or title a car for a loved one, in a recent decision, the United States Bankruptcy Court for the Middle District of Florida, Tampa Division, found that three cars listed in a debtor's bankruptcy petition were not exempt property, and in fact, were the property of the bankruptcy estate such that if the Debtor wished to keep them, she would have had to buy back the equity from the Bankruptcy Trustee.  In that case, the Debtor's father purchased three cars for the debtor's daughters, but titled them in the name of the Debtor with no indication they were titled in the name of the Debtor "as custodian for (name of minor) under the Florida Uniform Transfers to Minors Act."  A such, the Court determined the cars were the property of the debtor, not her daughters, and not her father who bought the cars.

The importance of using "and" or "or" on a title can make the difference when considering Chapter 7 Bankruptcy.  If it is "and" then the equity in the vehicle is 50% one owner and 50% the other owner.  On the other hand, if the term between the names is "or", each owner has 100% interest in the vehicle; and, as such, the equity must be bought back by one owner who has chosen to file Chapter 7 Bankruptcy.

The lesson to be learned:  If you are going to buy a car, boat, motorcycle, etc. for your son, daughter or other family member, and then find yourself needing to file bankruptcy, be prepared to either potentially surrender the vehicle, buy back equity in the vehicle, or better yet, title the vehicle the right way in the beginning and avoid these pitfalls.