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The Malevolent Matter of Mold

March 1, 2019 By Chase Carpenter

Mold litigation is an interesting area of law because the average person, including lawyers, judges, and jurors, knows that mold can be dangerous, but also knows that it’s everywhere in Florida. And, that’s true – mold is everywhere. However, there are a number of different types of mold – some more dangerous than others – and some of those types should never be found indoors. Others shouldn’t be found in certain quantities, and some are indicators of bigger problems like ongoing water leaks. Aside from being an area where there is little by way of common knowledge, insurance coverage is either excluded, limited to $10,000, or limited to $50,000. Very few policies carry coverage without limitation. So, what does that mean for your claim for injuries or property damage due to mold? It means you need to know your rights, the proper valuation of your claim, and the best strategy to get there.

At Carpenter Gandhi, we most often deal with tenants who move into a property with a mold problem and their landlord refuses to spend the money to properly remediate the situation. Sometimes the tenants notice visual signs or smells associated with mold, while at other times the tenant doesn’t realize until they begin noticing a decline in health – whether it be respiratory illness, sinus infections, general malaise, or something more obvious, like a rash. In attempts to resolve their symptoms, they see doctors, who attempt to quell the symptoms. Eventually, doctors or research point them to the possibility of mold. And, after professional mold testing, they find that their suspicions were correct. They then notify their landlord and yet nothing is done – forcing them to lose personal property, face treatment for their exposure, and move immediately, even if it means possibly breaking a lease.

What should I do if I think I have mold?

The first step should be to notify your landlord – immediately and in writing. If you have a written lease, look to it regarding notification and make sure you send notification by that means (i.e. to the property manager, via certified mail, etc.) If your landlord sends a professional to test for the presence of mold, allow such test to take place immediately and request the results in writing. Most likely, you’ll be denied access, but make the request – you may need it for medical treatment, for example. If your landlord attempts to spray bleach or paint with “Kilz,” request professional testing. And, if your landlord refuses, hire your own professionally licensed mold assessor to test the property. (In fact, you may want to hire your own professional to test regardless of whether your landlord hires someone.) If the results show mold, notify your landlord of the results.

Testing shows mold, but your landlord won’t remediate – what should you do?

Get out. Under Florida Statutes, Chapter 83, you have to provide your landlord an opportunity to remedy his or her violation of §83.51, but if you followed step one, you have likely accomplished this. Now, it is simple to say get out, but more difficult to do. We often get calls saying that for one reason or another, moving is impossible. However, for health and preservation of property, you cannot continue to live in a property you know to have mold and then bring a successful claim later – essentially you are knowingly exposing yourself to the danger you are complaining about… so, a claim would be exponentially weakened, not to mention the potential damage to your health and property.

I’m out, but I’m still not feeling well – when do I bring my claim?

Once away from the mold exposure, you may begin feeling better quickly. Or, you may continue to not feel well and need further treatment. You won’t want to bring a claim until your doctors have decided you are at maximum medical improvement – basically the legal terminology for saying you are all healed up or this is as good as it is foreseeably going to get. And, that may come with a future treatment plan in and of itself. However, once treatment is completed, you can move towards putting a valuation on your claim.

What’s my mold claim worth?

If you search the internet for mold injury or mold verdicts, you are going to get a plethora of wildly inflated results on the first pages. Now, those numbers aren’t necessarily made up, but they vary based on the state and the facts of each case, but largely due to the state. States vary widely in their landlord-tenant laws and their insurance laws. Put those two together in Florida, and you’ll find you are working uphill, pushing a boulder, when it comes to personal injury and property damage claims due to mold. As I mentioned at the beginning of this post, nearly every home-owners’ insurance policy in Florida has one of three limitation for mold coverage: absolute exclusion, $10,000 limit, or $50,000 limit. Now, if you only have minimal property damage and you had to see a doctor a couple times for a sinus infection, limits of $10,000 would well cover your claim. However, that may not be so if you were particularly affected, your entire family was affected, and you have thrown out bedroom sets and couches. Quickly, you’ll find that that these limits impose issues with valuing your claim.

While there’s no magic formula, start with the hard numbers (“special damages” in the legal jargon) – the money you spent or lost. For property, write it all down and start working through values… what you paid for it and what it costs to replace it. Then move to incidentals like moving expenses and hotel stays. Finally, move to out of pocket medical expenses (NOT what insurance covered). Keep in mind that whatever insurance covered will likely be paid back to insurance through a process called subrogation, but that’s a topic for a different post.

Once you have these numbers, you can move to pain and suffering and loss of use. Here’s where we see there’s a potential to go a bit “off the rails.” Do not mistake a good case for liability and causation for being a case where you are entitled to punitive damages. Being able to prove negligence easily is not the same as reaching the threshold where the Court will allow damages that are designed to punish the landlord.

And, here’s where the problem with the internet search comes into play. You may see an award in California for $200,000 and wonder why you are being advised your case is worth $20,000 in Florida. The answer isn’t simple, but it is due to a combination of landlord-friendly laws, insurance laws allowing mold exclusions and limitations, and, most importantly, due to Florida juries returning relatively low verdicts in mold cases. Also, keep in mind that if you go to trial, a jury won’t see that your landlord has insurance – they will only see your landlord sitting at that table (rules prohibit juries from being informed about insurance coverage). Importantly, juries in Florida are made up of Florida residents, and while Florida residents tend to know that there’s mold everywhere, they are probably unfamiliar with mold testing, remediation, and the potential harm it can cause.

Keep in mind that while the numbers may not compensate you in the hundreds of thousands, even after attorney fees (often done on contingency) and subrogation, you’ll still be left with money to replace property and/or seek medical treatment. Now, that is not to say that your claim may not be technically worth more than even the $50,000 policy limit, but it is to say that you may want to think long and hard before you risk a relatively low verdict or not being able to collect – the things lawyer ads telling you that you should go to trial leave out.

While this post provides you with some helpful tips, if you find yourself in the unfortunate situation of dealing with a potential mold claim, your best bet is to consult with an attorney and discuss the particular facts of your situation.

How to Prepare for Your Deposition

January 18, 2019 By Satyen Gandhi

You have learned that you are going to have to sit through a deposition. What is a deposition, you might be asking? How do I do well during it? What do I need to do to prepare?

A deposition is what I call a “friendly interrogation.” Generally, your deposition will take place in a conference room setting where you will be seated across from an attorney that will be asking you questions. Usually, your deposition will last, at a minimum, about an hour, but can last up to 6 hours or more, depending on the facts of the case and your role in it. Regardless of how long it is, and who the attorney is asking you questions, below are some general rules you should follow to help you get through it and to do the best job you can.

Breathe. This may be the most important rule. A deposition can, and usually is, a nerve-wracking experience. You will feel worried and possibly even lose sleep over thinking about how you’re going to do. So, first thing to do is stop, take some deep breaths, and try to stay calm. This rule doesn’t just go for pre-deposition, but also during the deposition. If you find yourself getting flustered, stop and take a deep breath.
Don’t Lie. This is probably the most important rule. Lying is the only thing you can really do to harm yourself and, if you are the one bringing the lawsuit, your case, during your deposition. This doesn’t just mean not saying “green” when you know the answer is “red.” This means don’t exaggerate, don’t stretch the truth, don’t embellish. The facts will come out, and if you try to make something seem better or worse than it is, it can blow up in your face. Lying is also one of the ways your deposition will be used against you at trial – the jury will hear what your answer was during your deposition, under oath, and if it’s different from what the records show, or worse, from what you are now saying at trial, you will lose your credibility and a jury won’t care about any of the other facts that come out.
Take your time and speak slowly. Fight the impulse to blurt out everything you know and feel like you need to tell the attorney. You can answer a question just as effectively in a few words or sentences versus telling a long story with tangents. And, this will help you get through your deposition faster. It may seem counter-intuitive but taking your time and answering slowly will actually make your deposition take less time.
Pause before you answer. This goes hand in hand with taking your time, and will allow you to think about you answer before you speak. It will also allow your attorney time to make an objection if one is necessary. Unlike what you may see on TV, lawyers cannot interrupt witnesses, and have limited opportunities to raise objections. Pausing before you answer allows an opportunity for the lawyer to make any appropriate objections.
Only answer the question that is asked. This is a simple concept to understand, but hard to implement. Instinct tends to tell you to answer the question and provide more information. Do not volunteer information. You don’t need to be evasive or intentionally difficult, but do not go into areas about which the attorney has not asked you. If the attorney asks you when something happened, just give a date or time or other short answer as to when something happened. You are not there to tell a story, only to answer the questions the attorney has asked.
You will not convince the deposing attorney of anything. The attorney is not there to be persuaded that you are right and his or her client is wrong. Remember, the attorney is being paid to represent the other side and to not believe you or to find holes in your story. Your deposition will not result in the attorney changing his or her mind about what the facts are, or thinking that his or her client should lose the case. That is not the point of the deposition.
Don’t argue. Leave arguing to the attorneys – that is their job and what they do for a living. You are there to answer questions about what you know and remember: the facts, and nothing but the facts.

While these general rules are helpful in making your deposition go smoothly, you should always meet with your attorney before your deposition to properly prepare and discuss any topics specific to the case. It is important to meet with your attorney to prepare, and to do so as close in time to your deposition as possible so that you are fully prepared.

Attorneys’ Fees and the Fair Labor Standards Act

December 3, 2018 By Satyen Gandhi

In Florida, if you bring a claim against your employer for not paying you for the hours you worked, or the right amount of overtime, your claim is governed by the Fair Labor Standards Act, or FLSA. When you file a claim, your attorneys can also make a claim for the fees they are owed for representing you. This means that you don’t have to pay your attorney from what you recover for what you weren’t paid. If your employer owed you $1,000.00 and you won, you would get your $1,000.00 in full. Your attorney would instead get paid for the time she spends representing you, which doesn’t come out of your recovery.

It doesn’t work the same way for the employer. Even if the employer wins the lawsuit, you don’t owe anything to your employer for its attorneys’ fees. FLSA is designed to protect employees from any potential of owing their employers money when they are suing to collect money they were owed in the first place. If you have a claim for unpaid wages or overtime, but you don’t win, you won’t owe anything in attorneys’ fees to the other side. The law is designed to help employees bring claims without fear of owing attorneys’ fees to their employers if they lose.

However, your attorneys may not always get all their fees. Recently, a decision came out of the United States Court of Appeals for the 11^th Circuit which reduced the amount of fees the attorneys representing the employer could collect. In Walker v. Iron Sushi, LLC, the 11^th Circuit affirmed the trial court’s order reducing the amount of attorneys’ fees sought by the employers attorneys from $27,627.99 to less than a third of that – $7,640. The fees were found to be largely duplicative as there were three firms representing the employees and all charging for the same work, or they charged for researching basic principles of law under FLSA that most attorneys familiar with FLSA would have already known. Most of the hours spent on settling the case were also cut by the court and deemed not to be things that were owed in attorney’s fees. This was because the employers offered to settle the amounts owed to the employees for unpaid wages originally in the amount of $4,260.16. Ultimately, the employees’ claims settled for $5,111.42. Given that there was less then a $1,000.00 difference between the original settlement amount and the actual settlement amount, the Court had a hard time believing that a reasonable amount of attorneys’ fees for the claim was over $27,000.00.

This is an example of a case where the attorneys would have been better off settling their fees rather than fight for more in court. The point is, claims for unpaid wages under FLSA can be tricky and come with many concerns, including attorneys’ fees. If you have questions about an unpaid wage claim, either as an employee or as an employer, you should speak to an attorney who is familiar with FLSA and knows how the attorney fees will play a role in settling any claim.

Social Media is the New Private Investigator

November 20, 2018 By Chase Carpenter

Depending on whether you’re suing or being sued, social media is either a friend or foe. For lawyers, if you are a Plaintiff’s attorney, social media is the enemy. However, if you are a civil defense attorney, it’s probably one of the best tools at your disposal. And the reason is simple, everyone is addicted to posting… and they post the minutia of their daily lives.

Lawyers used to have to go to the trouble of hiring a private investigator to follow you around and take pictures of you, for example, doing strenuous activities like hiking or swimming when you’re suing someone because you say you’re permanently injured. Now, you do the work for them! Selfies and status updates are a documentary of your life… or at least a version of it. And while most of us like to just post the highlights, doing so can paint a picture of a happy, healthy, you, when maybe the truth really is that you are injured and growing more depressed each day as the pain and financial strain weigh on you.

So, here are some tips on how to handle social media if you are ever in the unfortunate position of being in a personal injury claim or lawsuit.

Don’t Delete

In general, the advice is going to be not to go on a deleting rampage, but use your discretion here. If it is just routine page maintenance, probably not a big deal; however, if you walk into a lawyer’s office and then you start deleting, you’re probably doing something wrong. The main thing you want to do is stop posting or alter your posting habits – see #2 below. If something is already there, deleting it isn’t going to get rid of it, but it will make you look like you have something to hide. Even if you do have something to hide, in today’s tech-savvy world, it won’t stay hidden, so you need to just confront it. All this said, you CAN make your page private, and that’s advisable.

Don’t Talk About the Case

It’s sounds pretty simple, but if you are to the point of seeing a lawyer to pursue a claim, it is likely this is the forefront of your daily life. Resist the urge to update friends and family on any legal claims, pre-suit or a filed lawsuit. And, that urge will be tough to resist sometimes because social media gives us immediate feedback, and, often when dealing with injuries, it will give encouragement. Encouragement is good, but you have to resist talking about the case. If you talk about how you are feeling, just be aware that those words will 100% come back into play. If it is the truth, it’s the truth, but understand that 280 characters may not be enough to explain the context of having a good day while managing constant neck pain and headaches.

Don’t Post Pictures

This goes double for pictures – a picture may be worth 1000 words, but as soon as you post it, you have no control over what those 1000 words are… so just don’t do it. Pictures are one of the things people love most on social media, but when you post a picture, it can so easily be taken out of context. One smiling picture of you at the beach can easily sink a personal injury suit. And the reason is context – once a jury sees it, they make conclusions, and it doesn’t matter what your explanation may be. Pictures can be helpful in documenting injuries and recovery, but just keep them off social media.

Do – Continue to Live Your Life

You don’t have to disappear from social media, you just have to be very thoughtful about it. The legal rules and implications of posting have real-world consequences for any potential claim or suit. However, feel free to still participate on social media. You want to post or like pictures of babies, cat videos, and animals acting like people – go for it! Just keep away from posting about verdicts, conversations with your lawyer, or pretty much anything at all connected to your potential claim or lawsuit.

If you are injured, your attorney should address these issues in your initial consultation. If he or she doesn’t bring it up, you should. Ask questions and get a full understanding of the risks and understand the advice of your attorney – and follow that advice. Social media can be a wonderful thing, but when it comes to the social media world clashing with the legal world, it can really spell trouble for an injured person. Pictures and postings don’t come with further context… and once they are out, rarely does more context matter to a jury. So, don’t be your own private investigator – understand how to be thoughtful about your social media if you ever find yourself in the unfortunate position of being part of an injury claim or lawsuit.

6 Common Missteps When Buying a Business

November 8, 2018 By Chase Carpenter

So, you’re thinking of buying or selling a business. It’s exciting – and it’s a huge milestone in your life… but be careful, there are some common mistakes that are made in the rush of excitement and opportunity. Namely, it’s the rush part of the equation.

In today’s economy, businesses, particularly small businesses, are starting to see a renewed growth, and that means there’s opportunity for sellers to cash in on the equity they’ve built in their business ventures and an opportunity to take advantage of continued growth for buyers. However, given all this fervor, it also means that the details can get lost in the mix. No, it isn’t necessary to involve brokers and attorneys, but it can certainly be helpful. For the purpose of this article, we’ll let the brokers give their advice. But, from an attorney’s standpoint, there are 6 common missteps we see business buyers making – from the first-time buyers to the seasoned buyers.

Rush to Closing

The most common mistake we see as attorneys are buyers coming to us with unrealistic closing dates because they are afraid the seller will find someone else. Of course, the seller wants a quick closing date. And, they would really love it if you paid cash and asked no questions. But, that’s also how you end up in an attorney’s office months later wanting to sue the seller saying that you got swindled (when you probably didn’t). The buyer should plan for a realistic closing date that allows for due diligence to take place. Due diligence depends on the purchase and the industry, but generally, you want to allow at least 1-2 months on the short side with potentially 2-3 months if the due diligence is more complicated. You want to see financials, get records, dig into any potential liabilities (EVEN IF IT IS AN ASSET ONLY PURCHASE), check out the vendors, and look into as much about the business as possible. This is where a team consisting of an attorney, accountant, etc. can come in very handy. Importantly, to overcome the fear of losing out on the deal, you can create contracts that solidify the intent to purchase. This can be through a separate agreement or can be incorporated in the overarching purchase and sale agreement that details the timelines and events of the purchase, including the closing date.

Management transition

This is a common mistake of new buyers especially. But, even a seasoned buyer can fall into this trap if they are new to the industry or even the area of the business. To overcome this misstep, it is helpful to negotiate a transition period where management will provide some training and consultation to the new buyer. Often, this is thrown in as an incentive – usually for a short period of a couple weeks, maybe a month. If the buyer needs a longer transition, many will look to compensate the outgoing seller to keep them on as a consultant for a time period of any where from a couple months to a year.

Inventory/Relationship Management

Don’t make assumptions about what you are purchasing. If the business has inventory, it needs to be outlined and in an agreement as to what is included. The last thing you want is to close and find out you have no inventory when you assumed you purchased it. Likewise, in a service industry, if you are buying a business for the clientele, make sure it is included and make sure you have some sort of non-compete agreement in place so that you are protected from being sold a book of business only to have the seller open up down the block under a different name and start taking their old clients back.

IP/Name transfer

Again, no assumptions – if you are buying the business with the intent to use their systems and the goodwill of the name, make sure you are purchasing all of it, including things like licenses, the website, logos, etc. This is often overlooked and just assumed. Many successful businesses are successful because of their intellectual property and the systems they have in place. Make sure you have a written agreement as to what it is you are purchasing. And, with names, make sure the seller has the ability to sell the name and make sure you have preventions from the seller opening back up with the same or similar name.

Landlord-Tenant/Supplier Relations

Not all contracts just switch over because you buy the business. Likely, most will, but some may have things like personal guarantees where you will need approval of the other party to assume the terms of the contract. And, for some vendors and/or suppliers, you may want to renegotiate the terms depending on how you intend to run the business. These negotiations can be complicated, so it is helpful to have an attorney on your side that can review these agreements and advise you as to the terms and facilitate transfers. One of the most common transfers is getting the landlord to transfer the lease to the new buyer. Just as often, this is an opportunity to negotiate new terms. This is tricky territory so be careful, but just make sure it is addressed early because these transfers and negotiations take time.

Not reading the sales agreement

Finally, let’s say you’ve followed the overarching advice and hired an attorney to draft up a beautiful purchase agreement. So, what mistake can you make, right? Well, the big mistake is failing to actually read what the attorney wrote… and, more importantly, to ask questions where you may not understand what the agreement says. As attorneys, we tend to use jargon – if your attorney puts something in your purchase agreement you don’t understand, ask him/her to explain and see if there’s a simpler way they can word it. Also, make sure what is written is what you actually want in there. Your attorney is there to advise and to facilitate – at times, that means providing suggestions. Suggestions are just suggestions, you need to understand and agree to the substance.

In the end, buying a business is a very exciting event in your life. It should be a great experience, and it can be with some attention to detail. If you assemble the right team of advisors to guide you through the process, and you avoid the common missteps, you’re well on your way to a successful purchase and great new business venture.