Tuesday, November 13, 2012


Florida's criminal law of Trespass and Larceny with Relation to Utility Fixtures; Theft of Utility Services has received quite a bit of national attention due to a November 11, 2012 arrest under this charge by a Sarasota police officer.  The alleged facts, as described in the officer's police report, are straightforward.  My abbreviated summary of the allegations is that an officer approached a group of people appearing to be homeless, and smoking what the officer thought might be marijuana, in a park.  The officer placed one of these individuals in custody, and after observing a broken electrical outlet cover on a gazebo in the park, and hearing the individual's comment that he wanted to retrieve his phone that was plugged into the outlet, he arrested the individual for theft of utilities (i.e. the electricity that was charging his phone).  If you follow the link to the statute to read it, you will see that it really is longer than it needs to be, but it certainly does prohibit theft of utilities under certain circumstances.  Florida's code authorizes punishment for theft of utilities of a jail sentence of up to one year, and of a fine of up to $1,000.00.  However, the last report that I read indicates that the charge has been dismissed.  

My question is, what could have, and should have happened to the charge if it wasn't dismissed?  If it occurred in Washington State, at least one potential way to resolve the charge would have been a procedure commonly referred to as a compromise of misdemeanor.  In Washington State, a compromise of misdemeanor is a mechanism for resolving a misdemeanor criminal charge, with civil remedies. When it applies, it works as follows: the injured party (here, Sarasota City) appears in court and acknowledges in writing that it has received satisfaction for the injury (payment), then the court may order the proceedings discharged, and the defendant cannot be criminally charged for the same offense based on the incident.  What the injured party gets out of the deal is the primary remedy that a civil court would have awarded, compensation, what the offending party gets is to avoid the risk of a criminal conviction, and what the state gets is the accomplishment of seeing that the injured party was made whole, without bogging down the courts.  While a dismissal may have been appropriate in the Sarasota case, in many other misdemeanor cases, a compromise of misdemeanor is a win for all involved.    

Friday, November 9, 2012


Photo by 401(k) 2012
The topic of payback claims is both simple and complicated at the same time.  First, everyone knows what it means to pay someone back.  The common understanding of paying someone back is as follows: X gives Y five dollars, later, Y gives X five dollars to pay X back, possibly, with interest. How does this simple concept apply to personal injury claims?  With much regret, we are now required to dip our toes into the shallow end of the pool on some issues relating to our health care system.  Let's take the issues in order, with simplified answers.

1.  What is health care?  I am going to give you the inside the box definition first: the maintaining and restoration of health by the treatment and prevention of disease, especially by trained and licensed professionals.  The outside definition of health care will be a nice segue to our next issue, courtesy of Urban Dictionary: a mythical beast often associated with the care of humans.  Often appears only to those who already have the necessary means to adequately take care of or pay for things.  Examples of this mythical beast include primary care doctors, orthopedists, neurologists, physical therapists, chiropractors and massage therapists.

2.  How is health care paid for?  The answer to this question is only limited by the creativity of those participating in our free enterprise system.  However, the big categories of payers are individuals (you and me), private insurers (auto insurers like PEMCO, health insurers like Aetna), and state and federal programs (Medicare, Medicaid, and TRICARE to name a few).  

3.  When do these health care payers have payback claims that relate to a personal injury case?  Our topic now begins!  Health care payers may have payback claims of some kind, including claims against the person receiving the health care, when they pay for health care for which some other person or entity is responsible.  For example, take a car accident case: X drives negligently and hits Y's vehicle, Y is injured and obtains health care, part of which Y's auto insurance company pays for, and part of which Y's health insurance company pays for.  Y resolves her personal injury case with X and obtains a settlement.  The payers, Y's auto insurance company, and Y's health insurance company, may now have claims against Y because they paid for health care for which X is responsible.  In other words, Y's insurance companies will try to recover their payments for Y's health care, from Y.  (Note: Y is not the only person against which these insurers may assert potential payback claims, others include X, and X's auto insurance company.)  The job of Y's personal injury attorney is to totally eliminate, or limit, Y's insurance companies' payback claims.

What does this all mean for the injured person?  It means that you are going to need a good personal injury attorney to continue the fight for some time after the case against the "defendant" concludes.  An agreement to pay compensation by the defendant may take care of what the defendant is interested in, closing your case, but it certainly doesn't complete what you are interested in, that being, getting as much of the funds that are intended to provide you with compensation, actually into your hands.  In my next entry, I am going to discuss what a good personal injury attorney can do on your behalf, after your case against the defendant concludes.  I will also include examples of applications of certain rules that attorneys can use on your behalf, to make all of this more definite, and concrete.

Friday, casual note!  I am just about to finish The Last Hundred Days, by Patrick McGuinness, which I really do recommend.  Full disclosure: I have always been very interested in the Cold War.