Homeowners Association Foreclosure in Florida

Florida is a judicial foreclosure state. Therefore, a party seeking to foreclose a home must go to court and receive approval from a judge. This includes not just banks, homeowner association foreclosure cases must also go through the court process as well. Unfortunately, many HOA’s are very aggressive and will seek foreclosure if a homeowner fails to pay the HOA dues. If you are being threatened with a homeowners association foreclosure contact a subrogation lawyer like Stephen Barker Law right away, there may be foreclosure defenses available to  prevent the foreclosure.

Defense of Insufficient Notice

Under Florida Statute 720.3085, before a homeowners association foreclosure case can be filed the HOA must provide the homeowner with proper notice. Florida law requires the HOA to send notice to the homeowner of their intent to record a lien. Their notice must be sent at least 45 days prior to recording the lien. The notice must include details of the amount owed and an opportunity to pay the amount prior to filing foreclosure. The notice must meet all the requirements outlined in the Statute. For information regarding a specific notice contact an HOA foreclosure defense attorney for legal advice.

Notice of Intent to File Homeowners Association Foreclosure

Additionally, Florida foreclosure law requires the HOA to send the homeowner notice of their intent to foreclose on the lien. This notice must be sent at least 45 days prior to filing for a homeowners association foreclosure. The notice of intent to foreclosure the lien should be sent after the HOA files their lien for fees. If the HOA does not send the homeowner both the notice of their intent to record a claim of lien and notice of intent to foreclosure on the lien they should not be entitled to foreclosure. Additionally, the HOA may be responsible for paying your legal fees if you win the case.

Both notices are required to be sent by registered or certified mail with a return receipt. See Florida Statute 720.3085(4)(b). The notices must be sent to the address of the property they are intending to foreclose. If the property owners do not live in the home the HOA must send the notices to both the homeowner’s mailing address and the property address.

Homeowners Association Foreclosure for Late Fees

It may not be just past due fees and assessments, a homeowners association foreclosure case can also seek interest and attorney’s fees. In most homeowners association foreclosure cases, the amount of attorney’s fees they charge will be far in excess of the amount of HOA dues owed. In some cases, the attorney’s fees are more than 3 times the amount of the past due HOA fees. On the other hand, if your foreclosure defense lawyer is successful in getting the homeowners association foreclosure case dismissed the HOA may be held responsible for reimbursing you for your attorney’s fees. See Florida Statute 57.105.

Homeowners Association Foreclosure Defense Law Firm

If you are being threatened with a homeowners association foreclosure contact Florida Law Advisers to speak with a subrogation lawyer. Stephen Barker has years of experience in these types of cases and will aggressively fight the HOA and stand firm for what is fair.

For more information about your rights in an HOA case or to schedule a consultation with a Stephen Barker Law, call
(561) 910-4340 or +15619104340.

When to Get a Lawyer to Fight Your HOA

More than 20 percent of homes in America are part of an HOA (homeowners association), and some research suggests HOAs can help homes retain or increase in value. HOAs offer a wide range of benefits to many communities such as pools, tennis courts, playgrounds and valuable green spaces.

This growing trend toward HOA-operated communities is not without drawbacks, however. There are plenty of HOA horror stories, replete with HOA representatives suing homeowners over the type of grass they used, or for not having the correct mailbox, and in some cases, even foreclosing on homes due to unpaid HOA fees.

HOAs vary, of course, but in many cases they exert a large amount of control over what kind of changes can be made to an individual home in the community.

As a result, homeowners may find themselves required to make certain changes to the exterior or even interior of their homes. Unfortunately, many of those changes may not be covered by insurance, especially if they’re not required to make the home livable.

Can HOAs Require Changes and Upgrades From Homeowners?

Whether your HOA can require you to make changes to your home is fully dependent on a few factors:

When you purchase a home in a community with an HOA, you are required to sign and agree to that community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs). The CC&Rs for each community differ, but the CC&Rs for your community may have stipulations for what kind of changes must be made to the exterior or interior of your home.

If you’re purchasing a used home, there’s a chance that the CC&Rs were not followed by a previous owner. In this case, the HOA may require you to follow certain rules in the CC&Rs regarding changes that the previous homeowner failed to adhere to. Additionally, if you are building a new home in the community, the CC&Rs may have set requirements for what kind of materials you can use, height restrictions, and other design and land use restrictions.

Most HOAs will have an architectural review committee that is in place to ensure all homes in the community follow the rules agreed to in the CC&R. If you find your HOA is requesting you make changes to your home, it’s likely the architectural review committee has determined some aspect of your home does not meet standards required by the CC&Rs.

Trouble for some homeowners may occur when the HOA changes the CC&Rs. In some cases, the HOA can add addendums or changes to the document without requiring additional consent from homeowners. From there, the HOA may ask for any new changes as required in the amended CC&Rs.

Simply put, when you sign the CC&Rs for an HOA, you are signing a document that is legally binding. The HOA can take action against a homeowner who refuses properly enact CC&Rs requirements, or who fails to pay HOA fees, including placing a lien on the home and enacting an HOA foreclosure on the home.

Insurance Limitations on HOA Change Requirements

Your homeowners insurance may cover some changes you make to your home. For example, if your home is damaged in a fire or from a storm, your homeowners insurance will likely cover the cost of repairs. But if your HOA uses this as an opportunity to request additional changes above and beyond what your insurance would cover, or requests that you utilize certain, more expensive materials, your insurance likely won’t cover it.

A community in Centennial, Colorado, discovered this reality after a summer 2018 hailstorm. Following the storm, the HOA required some homeowners to replace the roofs with shingles that met certain “aesthetic requirements.” Unfortunately for some homeowners in that community, their insurance did not cover those types of upgrades. Based on the requirements of the CC&Rs and the HOAs legal authority to enforce its rules, some homeowners were left to cover those costs out of pocket.

When situations like this arise, much of the HOA’s argument will fall into maintaining home values.

There is currently no insurance that homeowners can purchase that will cover the aesthetic changes your HOA demands. While you could purchase Ordinance or Law coverage as an endorsement to your existing homeowners insurance policy, it won’t likely cover the changes your HOA requires. Ordinance or law will help cover repairs or upgrades that meet legal codes for your city, town or state. Your HOA’s CC&R, however, is not a legal code, even though it is a legally binding document.

How to Handle an HOA Change Requirement

If you have been cited, fined, want to sue your homeowners’ association or your homeowners’ association has filed a lawsuit against you, then you should contact a HOA attorney.   While it is unpleasant to be in a dispute with your association, it is quite common.   The attorney is knowledgeable about HOA dispute matters and state laws.   The attorney can advise you of your legal rights and responsibilities and represent you in negotiations with your HOA or defend you in court.  

Common Disputes Against HOA’s

The following are matters that can result in disputes against HOA’s for not taking care of obligations regarding:

  • Changes to HOA rules and regulations
  • Open area spaces and blocking views
  • Landscape issues
  • Failure to maintain common areas
  • Breach of agreements with neighbors
  • Property encroachments of decks, fences, trees or room additions
  • Noise and disturbances; barking dogs, loud music, etc.
  • Enforcement of association governing documents

Common Disputes by HOA’s against Homeowners

The following are common HOA disputes that occur between HOA’s and homeowners:    

  • Failing to pay HOA dues or assessments on time
  • Not maintaining your home in accordance with the
  • Parking in authorized areas
  • Violating use and zoning ordinances
  • Ban on certain types, sizes, and number of pets

Being a member of a homeowners’ association isn’t for everybody.   So before you buy a property in a planned community, you should read their CC&R’s, and find out if there are any lawsuits between homeowners and the association.   If there are, you should investigate how many and the nature to determine if you really want to live in that community.

How Association’s Work?

The association is a governing body that runs your planned community or condominium building.   They association has a board of directors. Residents are elected to serve in positions such as President, Secretary and Chief Financial Offer or Treasurer.   The association’s bylaws and CC&R’s set forth the rules and regulations.   The association documents must comply with state and local laws.    The association receives funds from the homeowners in the form of dues, fines, penalties, interest and assessments.   Some associations are stricter in enforcing rules and regulations than others.    Associations conduct meetings, vote on matters and have the responsibility of maintaining the common area grounds and amenities.   Generally, before your association can fine you, you are given an opportunity to defend yourself in a hearing or meeting.   Although some homeowners associations have been known  to file a lawsuit without giving notice to the homeowner accused of violations.

Complaints About Associations

People who live in communities governed by associations frequently complain about the fact that the board of directors do not follow through on comments and complaints made by the homeowners that they represent.   Other big complaints are mismanagement of HOA funds and lack of enforcement of common area rules and regulations.   By hiring an HOA lawyer, you have the ability to fight back against injustice and unfair treatment.   Your attorney can also keep you informed  of changes in the laws and give you advice on how to handle matters as they come up.  HOA’s have responsibilities to maintain the common areas of your community and make repairs, but they don’t have the rights to infringe on your freedom and personal life.        

Hire Stephen Barker as your Attorney

If you are involved  in a dispute with your HOA, you should hire a subrogation attorney to assist you. That’s where Stephen Barker Law can serve you when you want to sue or challenge Home Owners Association.  HOA matters can become heated and emotional, so it is best to have an experienced attorney handle the negotiations and resolve the dispute for you. The attorney is an expert in HOA and state laws, and can explain them to you and advise of your legal rights and remedies. Give Stephen Barker Law a call today to work with you to develop the best case for you, today at (561) 910-4340 or +15619104340.

Plumbing Damage to Property – Get Help With Subrogation Today!

Damages resulting from water are one of the most common homeowner claims and are often very costly.  High paid claim dollars can result if the leak is not detected early.  Because plumbing is often hidden (running behind walls, in attics and in many instances encased in cement below the floor) water can be running for some time before a loss is discovered.  Most homeowners and business owners do not conduct an inspection of piping, fittings, and hoses and rarely even give much thought to them all until they are ankle deep in water!  Subrogation may exist if faulty plumbing work is the culprit or defective materials can be established but in most instances, the failure and ultimate loss is simply age.

The use of plastic (CPVC) materials has become universal in the plumbing industry mostly due to its low cost.  In addition, plastic is lightweight, easy to work with and does not rust.  However, plastic plumbing parts are frequently made of poor plastic material, are improperly shipped, are poorly manufactured or the part design may be substandard for its intended use.  Imperfect product installation is also a contributing factor to water damage claims.  There have been many instances where pipes are laid in slab work by one worker who is followed by another gluing the line together who unfortunately misses a few joints.  The pipes are then covered by cement and usually maintain their connectivity for a few years, then eventually start moving apart which results in a very costly slab leak.

For a Subrogation Specialist to be successful in pursuing a subrogation claim against the proper party in water damage losses the investigation must include onsite exploration of the plumbing system to determine the failure as to whether there is a  design or manufacturers defect or possibly an installation or maintenance problem.  A plumbing system less than 10 years old should not fail. Hiring the proper expert to conduct an inspection may be somewhat costly but the dollar amount of the paid claim often justifies the expenditure on water damage claims.  That is where we at Stephen Barker Law come in and save you time, energy, and money with a highly experienced professional like Stephen Barker. Contact us today so we can work together and solve your subrogation case at (561) 910-4340 +15619104340.

10 Reasons To Hire An Attorney for Your Subrogation Case

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If you have been injured in an accident, it is in your best interest to hire a subrogation attorney to get you the reimbursement you deserve. If the accident was the result of another person’s negligence, then you are entitled to compensation from the at-fault party. But, getting that compensation can be tricky, and you need to have someone working for you who knows the ins and outs of subrogation law. There are several reasons why you should hire a subrogation attorney, some of them include:

1. Objectivity

When you have been involved in an accident, your judgment is likely to be clouded, and you aren’t going to be overly objective. An attorney has no personal stake in the case, so they are going to be objective and be able to make the best decisions on your behalf and ensure that you are compensated for your injuries.

2. Experience

A subrogation injury attorney has experience with these types of cases. You won’t have to worry about doing a lot of research, because a lot of it has been done in past cases. Your lawyer will know what to do every step of the way until your case is settled.

3. Red Tape

As a layperson, you likely don’t know about subrogation law, or how to get through all of the red tape that insurance companies like to put up. You don’t have to worry about learning a lot of confusing legal and medical jargon, and your attorney can deal with all of the paperwork and other red tape.

4. Save Time

Getting a hold of the medical records, reviewing police files and medical charts, communicating with insurance companies, etc. takes a lot of time. Most people have to work, raise families, etc., and they don’t have time to do everything on their honey do list. But, this is exactly what a subrogation attorney is there for; to save time, and get you more money.

5. Investigators

Most subrogation attorneys work with a team of investors. This team will examine every detail of the case, do re-enactments, interview witnesses, etc. to make sure that you get the best settlement possible.

6. Work with other Lawyers

The other party or parties involved in your case will have their own attorneys. Your lawyer has the experience to work with them directly, and in many cases, they know each other to begin with. This makes a lot of the process easier, especially the fact-finding part where all parties involved exchange documents and facts.

7. Jury Trials

If you do end up in the courtroom, a subrogation attorney will make sure that you are represented and that you receive a favorable jury verdict. They will ensure that you get the compensation that you are entitled to, which will cover medical costs, other legal costs, missed time from work, and future expenses related to your injury.

8. No Fees

If you do not win your case, you will not have to pay any legal fees. Most subrogation attorneys charge a contingency fee. This means that you are not responsible for attorney fees. But, you may still be responsible for certain services provided by your attorney, such as doctors’ fees for reviewing medical records.

9. Alternatives

Not all subrogation cases end up in the courtroom. Your lawyer will offer suggestions for other types of resolutions that are easier, faster, and less expensive. Resolutions can include arbitration, mediation, or a trial.

10. Settlements

A lawyer can negotiate a settlement rather than have the case go to trial. This means that you give up your right to sue, and receive payment instead. Your lawyer can ensure that you get the best settlement possible.

 

With these 10 reasons to hire a subrogation attorney, you can save time, energy, and money by investing in an attorney that will work for you. It would be in your best interest to hire Stephen Barker Law for your subrogation needs. If you are in the middle of a subrogation case or want to know more about your options with a professional lawyer in Southern Florida, please reach out to Stephen Barker Law today 561-910-4340 !

Subrogation Law in Florida

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Sometimes this leaves people wondering how is this possible, and rightfully so! The insurance company is exercising its right to subrogation, which means the insurance company is substituting itself for the actual party involved in the auto accident and collecting the money for the damage done to that individual’s property (for which they have already paid pursuant to their insurance contract with that person).

What is Subrogation?

Subrogation is an equitable doctrine in Florida and throughout the country.  The purpose of subrogation is to provide relief against loss and damage to a creditor who has paid the debt of another and preventing people needlessly paying for other people’s mistakes.  What does that mean?  It means if someone else pays your bill and you are compensated by the wrongdoer for that bill, the person who paid that bill for you — usually an insurance company  — has to be paid back.

The most common example we see is health insurance.  When you get in a car accident, your health insurer often pays your bills.  The at-fault driver’s insurance company also pays your bills. Florida law typically requires you to compensate the insurance company for the money that they spent.  Luckily, we at Stephen Barker Law are often able to negotiate substantial reductions in that amount.

Let’s get into how this is fair.   The insurance companies are stealing money from accident victims who have more of a right to that money than the insurance companies.  Why does it matter that there was an accident involved?  That is what you are paying premiums for in the first place, right?  Unfortunately, Florida law does not see it that way.  The law sees it from a freedom of contract perspective.  These insurance companies all have contractual language obligating you to pay back the money they pay you if you collect that money from another source.

What Is the Solution to This Problem?

Our lawyers deal with this issue all of the time.  We have developed a lot of tactics to reduce and even eliminate health insurance liens.  What if your case is too small for a lawyer?  You should contact the insurance company’s lawyer and try to negotiate a settlement on your own without a lawyer.  The insurance company’s lawyer is sometimes authorized to accept pennies on the dollar to settle these cases in an effort to save the insurance company the time and effort of trying to collect a judgment it obtains.

If you want answers, please reach out to us at Stephen Barker Law and we can help you get your case in order today!

Medical Liens in a Personal Injury Case

Many people are surprised to learn that in certain situations, the state and federal government, health insurance companies and hospitals can assert a claim against your personal injury settlement. When you have been the victim of an accident and have filed a personal injury lawsuit to recover the cost of medical bills, the people who paid for these medical costs may be able to file a medical lien against your settlement proceeds. A lien is a demand for repayment that may be placed against your personal injury case.

Your health insurance provider may also issue a lien to recover any money it spends on your personal injury accident treatment. You may be required to pay back these medical expenses. This is a process known as subrogation, whereby insurance providers can seek repayment from your settlement. The extent and strength of the subrogation claim depends upon the language used in the policy. Some states strictly prohibit an insurance company from placing a subrogation clause into a health insurance policy, so you should check the laws in your state.

Medical Provider and Hospital Liens

In certain states, hospitals are entitled to file a lien for repayment of any monies spent on treating or caring for someone injured in an accident. Some medical providers may ask you to sign a lien letter, stating that you submit to a lien against your settlement to pay for services. Medical provider liens must follow a strict protocol in order to be valid. The hospital must follow the requirements of the Hospital lien statutes. Some of those requirements include:

  • The lien must be filed in the recorder’s office of the county where the hospital is located within 180 days after you are released from the hospital.
  • The lien must have your proper name, your proper address, the name an address of the hospital, and the dates of service.

If the hospital does not comply with the statutes, their lien is not enforceable. This does not mean you are not responsible for the bill. It only means that the hospital does not have a lien against your settlement. If the hospital has an opportunity to bill your health insurance, then it must do so and it cannot file a lien for the balance of the bill.

Worker’s Compensation Liens for Work Related Accidents

If you are injured in a work-related accident, a worker’s compensation lien may be issued if your medical bills or lost wages have been paid through your state’s workers’ comp fund. This lien amount is typically whatever worker’s compensation has paid for your case. Worker’s compensation laws vary significantly between states; therefore it’s important to check if the carrier can assert a workers comp lien on your personal injury settlement.

Government Liens for Unpaid Medicare and Medicaid

The general rule is that if the government paid for any portion of your medical care, they have a right to get paid back if you later recover money for your injuries from another party. Depending on the specific type of government program, some government agencies, (Medicare and Medicaid Liens, Veteran’s Administration) have different rights when it comes to placing a lien against your settlement. Some have the right to recover a portion of the proceeds from your personal injury lawsuit.

Negotiating and Releasing a Lien

It’s entirely possible to get the lien holder to accept less than the amount they paid. Your attorney may be able to get the claim reduced from the medical providers who hold a lien against your case. Under the “fund doctrine”, attorneys who create a “fund” for the benefit of a third-party are entitled for reimbursement from the fund in the form of attorney’s fees.

Worker’s compensation carriers are aware that a lien may be so large that is creates a disincentive to litigate. If the lien exceeds the total amount a plaintiff is likely to receive from a lawsuit, the plaintiff may choose not to sue. The plaintiff’s attorney can negotiate with the carrier in order to resolve the lien for substantially less that the face value of their claim.

Notify Your Lawyer

If an entity requests reimbursement, it’s important to ascertain what language in the insurance policy or public statute gives them the right to demand this. Lien law is extremely complicated and an experienced attorney may find ways to reduce or even eliminate the lien.

U.S. Supreme Court Decision Limits ERISA Plans’ Subrogation Rights

On January 20, 2016, the United States Supreme Court issued a significant decision that makes it more difficult for employee benefit plans governed by the Employee Retirement Income Security Act of 1974 (ERISA) to obtain reimbursements of payments made to plan participants who have subsequently received third-party settlements. The decision is Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, __ U.S.__, 136 S. Ct. 651, 84 USLW 4046 (Montanile). In Montanile, the issue presented to the Supreme Court for its review was whether an ERISA plan has authority under the statute to place a lien on a plan participant’s general assets once that person has obtained funds from the settlement of a legal action with a third party and then dissipated the settlement funds.

The Supreme Court held in an 8-1 decision that an ERISA plan fiduciary may not seek reimbursement out of the third-party settlement a plan participant has received in circumstances where the participant has spent the settlement funds. Writing the opinion for the majority (Justice Ruth Bader Ginsburg issued a dissenting opinion), Justice Clarence Thomas found that ERISA provision Section 502(a)(3), which authorizes a fiduciary to bring a suit for equitable relief to enforce the terms of the plan, precludes such a suit for reimbursement where the plan fiduciary is seeking to attach the participant’s separate assets that are not traceable to the settlement funds.

As will be discussed below, Montanile involved an employee health benefit plan. Justice Thomas did not address whether the court’s ruling applies more broadly to other types of ERISA plans, such as pension or disability plans, that may seek to recoup benefits that could have been paid to participants over many years or even decades. Given the length of time during which such pension or disability payments may have occurred, it is even more likely that the payment recipients will have spent the payments they had received.

Overview of Montanile Decision

This case arose from the medical expenses Robert Montanile incurred as a result of injuries he suffered when a drunk driver ran through a stop sign and crashed into his vehicle. Montanile was a participant in the National Elevator Industry Health Plan. The plan paid in excess of $120,000 for medical care Montanile required as a result of his injuries from the car accident. However, the plan’s provisions enable it to demand reimbursement when a participant recovers money from a third party for medical expenses. Indeed, Montanile did file a negligence claim against the drunk driver and obtained a $500,000 settlement. He netted $240,000 after paying attorney’s fees and repaying an advance from his attorneys.

The plan’s Board of Trustees sought reimbursement of the medical expenses the plan paid to Montanile, but his attorney argued that the plan was not entitled to any recovery. The parties entered into negotiations over reimbursement but never reached an agreement. Thereafter, Montanile’s attorney informed the board that he would distribute the remaining settlement funds unless the board objected within 14 days. After the board did not object within that timeframe, Montanile’s attorney paid him the remainder of the funds from the settlement.

Six months later, the plan filed suit against Montanile in the United States District Court for the Southern District of Florida under ERISA Section 502(a)(3) seeking reimbursement of the amount it expended on his medical care. The plan sought to enforce an equitable lien against any settlement funds, as well as any funds that were in Montanile’s actual or constructive possession. Montanile argued that he had spent almost all of the settlement funds and that there were no specific, identifiable funds separate from his general assets against which the equitable lien could be enforced. The district court rejected that argument and held that even if Montanile had dissipated some or all of the settlement funds, the board was entitled to reimbursement from Montanile’s general assets. The United States Court of Appeals for the Eleventh Circuit affirmed the district court’s decision. The court of appeals held that the equitable lien was enforceable, notwithstanding dissipation of the specific fund to which the lien attached. The court of appeals determined that a plan can recover out of a participant’s general assets when the participant dissipates the specifically identified fund.

Courts of appeals in only two circuits have adopted the position that ERISA plans cannot seek reimbursement of general assets under Section 502(a)(3) from participants unless they can trace their claims to specific funds in the participant’s possession. The Eleventh Circuit’s decision followed the majority position taken by courts of appeals in other circuits permitting an ERISA plan to enforce an equitable lien against a defendant’s general assets without having to satisfy a tracing requirement.

The Supreme Court’s decision in Montanile upholds the minority position. One point Justice Thomas made in his opinion was that a plan can only seek equitable relief under Section 502(a)(3), whereas ERISA contains other civil action provisions, such as Section 502(a)(1)(B), that more broadly allow plan participants and beneficiaries to enforce their rights under the plan that does not limit them to equitable relief. He further explained that equitable remedies enforce a right against a particular thing, rather than a right to recover money generally out of a defendant’s general assets. In addition, Justice Thomas found that an equitable lien could ordinarily be enforced against specifically identifiable funds that remain in the defendant’s possession or against traceable items that the defendant purchased with the funds, such as a car. However, he indicated that expenditure of the entire identifiable fund on non traceable items (like food or travel) destroys an equitable lien. Justice Thomas then concluded that the board could not enforce its equitable lien against Montanile’s general assets.

Conclusion

The decision in Montanile puts responsibility on health benefit plan fiduciaries to have in place processes to ensure that they seek reimbursement for medical expenses that they have paid to plan participants and beneficiaries promptly after those individuals have recovered those medical expenses from third parties in legal proceedings. It is especially important that these processes include a system for investigating and tracking expensive claims.

By commencing reimbursement actions promptly, the likelihood that third-party settlement funds will be wholly dissipated will be diminished. Nevertheless, as some settlements (especially settlement amounts) are reached in secrecy with nondisclosure agreements, it may be difficult for plans to gain sufficient information to trigger a prompt reimbursement effort. Furthermore, if lower courts interpret Montanile to apply to other types of ERISA plans, it may not be practicable for plans to quickly seek reimbursement before dissipation of pension or disability disbursements that were perhaps paid years earlier.

If you have a subrogation case and want the very best South Florida has to offer, look no further than Stephen Barker Law! We work with the best attorney’s to bring you the compensation you deserve. Reach out to us for a quote today and a more lucrative tomorrow!

 

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Subrogation Tactics Involving Heavy Equipment Fires

Heavy equipment fires occur frequently and can lead to substantial losses. The loss of the equipment itself is often compounded by the insured’s loss of use of the equipment.  For businesses that rely extensively on heavy equipment (e.g., agricultural and construction businesses), the loss of use/business interruption claim arising from such a fire can be staggering.

Heavy equipment is often used in undeveloped areas not readily accessible to fire departments. As a result, the equipment is often badly damaged by the fire, creating challenges to identifying the point of origin. Subrogation recovery for such fire will hinge on proper investigation immediately after the loss occurs. The following are some tips to guide a subrogating carrier’s investigation in heavy equipment fires.

In analyzing a heavy equipment fire case, it is important to gather data and evaluate the maintenance history of the equipment. Lack of maintenance of hoses carrying hydraulic fluid can be problematic, as these rubber hoses become brittle and prone to cracking over time, creating the potential for the failed hose to discharge pressurized, flammable hydraulic fluid onto hot parts of the equipment’s motor or exhaust system, resulting in a fire. Thus, one of the first steps in evaluating the recovery potential of a heavy equipment fire claim is to determine whether the equipment was properly maintained. A diligent insured will keep log books recording each instance of maintenance to the equipment. The carrier should request such maintenance records from the insured at the outset of such a claim, as those records can substantially inform the subsequent investigation.

Additionally, some heavy equipment fires may occur at job sites where there is already a fire in progress. In a land clearing project, for instance, there is usually a pile of cleared wood and vegetation being burned. This creates a significant potential for the equipment operator to move the equipment too close to the burn pile, causing combustible components of the equipment to ignite. On many pieces of equipment, the cold air intake is located at the rear of the machine, behind the operator. We have investigated several fires wherein the operator, looking forward, did not realize that the rear of the machine was perilously close to a burning debris pile, and a smoldering ember is sucked into the machine’s cold air intake, causing a fire in the engine compartment. This potential fire cause makes it crucial that the subrogating carrier establish the pre-fire location and movements of the equipment as soon as possible following a loss. The carrier should make every effort to obtain this information directly from the operator of the equipment and other individuals who were actually present when the fire occurred; obtaining the information from a foreman or company representative who was not present at the time of the loss is not a substitute for first-hand statements.
Finally, the carrier should be aware that not all fire investigators and engineers are created equal for purposes of investigating a heavy equipment fire. If possible, the subrogating carrier should retain a fire investigator familiar with heavy equipment fires and a mechanical or electrical engineer who specializes in heavy equipment, as non-specialist fire investigators and engineers may not be able to quickly and accurately identify all potential ignition sources on the relevant equipment.

Having learned the ropes of subrogation in terms of heavy equipment fires, it is best to work with a lawyer that specializes in subrogation like Stephen Barker. His expertise and knowledge of assisting clients through subrogation claims will help you get what you deserve from insurance companies and insure that you are not left in the ashes from fires.

How To Choose The Best Subrogation Lawyer in South Florida

Subrogation is a legal procedure that lets an insurance company make a claim against a third party, to recover benefits that the insurer paid to its insured. The purpose of a subrogation claim is to force the person or company that was at fault for an accident to reimburse the insurance companies that paid insurance benefits as a result of that accident.

Why Do Injured Persons Need To Know About Subrogation Law? 

In every health insurance policy there is a subrogation clause. This is true whether you have a private insurance carrier, Medicare, or Medi-Cal.  Although there is a lot of fine print that is easy to look over in Insurance contracts, the subrogation clause is a part of your health insurance. When you are injured as a result of someone else’s negligence, and you will likely obtain medical treatment for injuries sustained, such as in an automobile accident. In Florida there is currently a requirement that all drivers carry personal injury protection insurance coverage or PIP, also known as no-fault. In theory your no-fault insurance is supposed to pay for your medical care following an automobile accident. This protection however is normally limited to $10,000.00 and will  only cover 80% of your medical bills. There is also a chance that your own insurance company may cut off your PIP benefits and stop paying your medical bills after you are examined by one of their doctors in what they call an independent medical exam or IME. No fault benefits are not subject to subrogation, and as such payments made to medical providers through PIP do not have to be reimbursed.

Why Do I Need A Subrogation Lawyer?

In life, there is no such thing as control. Life may go your way most of the time, but odds are that you will have to deal with being the victim of negligence at some point in your life. When it happens, you’ll need to consult a lawyer who deals with personal injury. You may be entitled to compensation for injuries caused by the negligence of others.  So the question is: “How do you find the best personal injury lawyer for you?”. That’s where we can come in and help guide you in finding the best Subrogation Lawyer for you in South Florida. We hope you choose to work with us at Stephen Barker Law, but it is always best to explore your options. Here are some guidelines for how to pick the lawyer that is right for you:

Time is of the Essence:
There is no time to waste after an accident. There are time limitations known as the statute of limitations, and they vary of different types of cases. If you are seriously injured after the accident then you’ll  need to rely on close friends or family members, or family physician to recommend a lawyer they know and trust. It will protect your rights if you retain a lawyer very soon after the accident, so that your lawyer may begin his or her own investigation, preserve evidence, and advise you on your rights.

Google is Your Friend:
Any lawyer that is worth your time has a website and to provide you more  information about the lawyer and their practice.  Ideally you can learn about the education and experience of a lawyer from their website.  One of the cons of using a lawyer’s website as an informational resource about their own services is that it was likely written by the lawyers themselves and any opinions may be biased in favor of selecting their firm. A good way to verify other people’s experiences is to check a ratings website like martindale hubbel, lawyers.com, Avvo, Superlawyers, or the Better Business Bureau so you can get a realistic view as the client of what to expect from your attorney.

What Type of Injury Do You Have:
Just like there are many different types of injuries, there are lawyers with different expertises of injury. It is wise to select a lawyer who devotes their practice to the type of injury you have sustained so that you can be assured that they have experience in similar cases. There are many types of accidents such as car accidents, slip and falls, dog bites, drunk driving accidents, medical malpractice, etc.

Bills, Bills, Bills:
When hiring a lawyer for an accident or injury case, most lawyers work on a contingency fee basis, only taking their fee as a percentage of any recovery they obtain. Some attorneys will even go as far as to provide a No Recovery, No Fee Promise to all clients which ensures that you’ll receive the most dedicated service they can provide. Some lawyers will even reduce their fee if at the end of the case the attorneys fee is greater than that which the client would receive. You should ask your lawyer if they will ever reduce their fees.

Lawyer’s Experience Pays Off:
Education meana nothing if the lawyer does not have the proper experience to make the magic happen. When it comes to legal matters and there is no doubt that you should go for the knowledgeable lawyer who has experience handling similar cases in the South Florida Area. Stephen Barker is definitely a lawyer with years of experience and expertise to guide you through your subrogation case in South Florida.

Be Frank with your Lawyer:

You have to be completely honest with your lawyer so that they can use that information to file your claim. They will talk to you about what can be done, and they will speak to you about what that information means. You might have to pick out the information for them if they are hoping for you to help them, and you have to be organized so that they can get the case right the first time no matter how complex or simple the case is.

You can talk to Stephen Barker today who will step in and make sure that you have the representation that you deserve. You will have the case handled by someone who knows what they are doing, and there are many people who did not know that they could sue because they thought they were stuck when they got in a dispute with the insurance company. There are a number of people who will go through this process with their lawyer so that they can have their claims paid and honored by the insurance company in question.

With these guidelines, we wish you the best in your search for the best Subrogation Lawyer for you. If you think Stephen Barker is a great fit for you, we are have the dedication and devotion to reach your goals and protect you in the murky waters of subrogation law! Contact us for more information today and let’s get you the compensation you deserve!

Liability Contracts and Policies With Contract Workers

Subrogation law, with Insurance, is constantly being used. It is part of nearly every insurance contract. The courts are loaded with lawsuits involving the negligence of a third party and subrogation claims. This is why, as an injured party, you must seek out a subrogation lawyer. Insurance subrogation is a much more difficult and complicated process. Again in the simplest terms, if you are involved in an accident and there are medical bills or damage to your property. Your insurance company will see to it that the bills are paid. After making the payments or sometime before, your insurance company will try to determine more details about the injuries or damages that occurred.

For example, imagine a painting contractor fell off his ladder while they were on the job. However, when the painter fell, he toppled on top of another contractor’s employee on the job site. This other contractor’s employee  suffers injuries from the collision, and the injured worker sues the Painting contractor as well as project owner. The project’s contract included a requirement that the contractor assume the owner’s liability for any accidents that may result from the contractor’s work. As a result of this, the contractor’s general liability insurance company pays the injured worker for both the owner and contractor’s portions of the damages incurred. After evaluation from the Insurance company, they were able to determine that the owner was actually twenty percent responsible for the accident. The insurance in turn files a claim with the owner to request a return on a portion of the initial payment made.

Although this may seem unfair, this is a completely legal and normal instance of subrogation with Insurance companies. To avoid this scenario, many project owners and general contractors require that their subcontractors agree to a waiver of subrogation. Subrogation ultimately holds the person who should pay for the damage responsible, and will protect the company from being liable for unexpected expenses.

To save money and ultimately not be held responsible when the unexpected occurs, owners and general contractors often transfer their liability to subcontractors. This is why most contracts include a waiver of subrogation agreement. These contracts in turn have the subcontractor promise not to pursue legal action and request payment from the other party in case of an accident. That agreement often links with the subcontractor’s insurance company, depending on the type of policy and its terms.

Types of Liability Contracts and Policies

1.  Commercial General Liability Policy:

Traditionally, a commercial general liability policy prevents the policyholder from being able to adjust the insurance company’s rights after the accident occured. This only applies when a waiver of subrogation was signed and agreed to before a loss holds the company responsible for recovery. The subrogation policy often times protects the other party if in the agreement it lists the person as an additional insured. Under common law, an insurance company may not subrogate against its own insured. To remove any doubt, one should should ask the company involved to add an amendment applying a waiver of subrogation to the person or organization named in the initial contract. Insurance companies vary on the amount of premium they charge for this. Insurance companies sometimes make no charges at all.

2. Standard Business Auto Insurance Policy:

The standard business auto insurance policy has many similarities to the general liability policy. One major difference is that unlike General Liability insurance, there is no standard waiver of subrogation endorsement for auto insurance. Some insurance companies may offer their own versions of such an endorsement. Again, premium charges will vary.

3. Worker’s Compensation Policies:

Workers’ compensation policies require an endorsement whenever a waiver of subrogation is desired. This endorsement may apply on a blanket basis to all parties with whom the insured has written contracts requiring waivers. It also can apply only to the party listed on its schedule. The insurance company may charge up to two percent of the policy premium for blanket coverage or two to five percent of the project’s premium for individual coverage.

4. Commercial Property and Inland Marine Insurance Policies:

These types of policies vary as to whether they permit waivers of subrogation even before a loss. This type of coverage is imperative if you plan to transport high-value products or materials, which are often excluded from basic property coverage.

When working with a contractor, it is wise to have a contractor or building tenant who is required by contract to check the relevant insurance policies and waiver before agreeing to working together. This is when it is wise to have a lawyer such as Stephen Barker to work with you to complete the best waiver for you and your contractor that protects you for incidental charges and recoveries. Accidents happen, and it is best to protect yourself from the unexpected and to ensure that the proper coverage is in place. Call Stephen Barker Law today to create the best waiver for you and your contractor!