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Scott Douglas Knapp

Scott Knapp’s Answers

8 total

  • Can you get money back from a dentist for a bad root canal?

    My husband had a root canal from a dentist 2 months ago, now yesterday had to go back because of pain and a knot on the same tooth. The dentist took an xray and sent him to a specialist the right after he left his office. The specialist took anoth...

    Scott’s Answer

    Can you get money back? You certainly can try. I would start by expressing your dissatisfaction to the dentist and see whether he will agree to a refund.
    Dental malpractice cases are not easy to prove and often cost more than the amount in controversy. Dentists are absolutely "health care providers" covered by Florida Statutes Chapter 766. Accordingly, just like any other medical malpractice claim, you will need to prove that the dentist deviated from the applicable standard of care. It is not simply enough to show that the tooth ultimately was cracked. This is what makes medical malpractice cases, in many ways, different from a standard breach of contract case.
    Florida also has a very rigid and strictly construed medical malpractice scheme. Unlike other cases, you cannot simply file a suit without fulfilling several conditions precedent. For instance, you must prove through an affidavit of another dentist that there was within a reasonable degree of medical probability a deviation from the standard of care. Ordinarily, it is much easier to understand this statutorily required process with the assistance of an attorney. Although, being that the amount of money at issue, this may be cost prohibitive.
    Best of luck!

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  • Who qualify as a person to testify to the admissibility of a business record?

    F.S 90.803(6) states that exception to hearsay requires the testimony of the custodian or other qualified witness. What is the criteria of "other qualified witness"? If the person is not the custodian of records nor work in the record department, ...

    Scott’s Answer

    The real inquiry is whether the person testifying or authenticating the document has personal knowledge to confirm that:
    (1) the record(s) was made and kept by the business in its ordinary course of regularly conducted business;
    (2) was made at or near the time of the event(s) that is recorded;
    (3) was made by or from information transmitted by someone with knowledge; and,
    (4) it was the regular practice of the business to make and keep such a record.
    Obviously, the usual practice is to use a "records custodian." As identified in the prior response, it could also be introduced as an admissible business record by the person who recorded the statement. Likewise, it could be made by an officer, director, or another "qualified person," so long as that person can, based upon personal knowledge, confirm the necessary elements to establish the document is a business record. Importantly, each and every element must be proven. If any of the elements cannot be verified, then the record will not be admissible under the business records exception. Even if not admissible as a business record, the document may still be admissible under another exception to hearsay. In other words, do not get caught up in this rule to think that every document attempted to be introduced into evidence must be proven to meet the legal elements of a business record.
    Interestingly, in some circumstances, the law also allows multiple witnesses to confirm that the document is a business record. So, it is possible, although not all that common, that one witness could confirm that the document was created by a person with knowledge at or near the time of an event, and another witness could testify or verify in an affidavit the remaining prongs and confirm that the business created the record in its ordinary course of regularly conducted business and that the business has a practice of keeping and maintaining such a record.

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  • Help with a Covenants not to compete.

    (a) Covenant: "xxxxxxxx" hereby covenants and agrees to not, directly or indirectly, actively or passively for "xxxxxxxxx" or any other person or entity for any reason: (i) hire any present or former employees of employer (or any employ...

    Scott’s Answer

    In order to be enforceable, the non-compete must be supported by the legitimate business interests of your current employer. I understand that you claim there are no "trade secrets." Often, lay person's understanding of what constitutes a trade secret or a legitimate business interest is different from what is legally accepted and enforceable. Even attorneys can often dispute whether there is a sufficient basis to enforce a non-compete agreement. Notwithstanding, the ultimate question will turn into how risk adverse you want to be. This is a truly a business decision in many ways. Even if ultimately you are correct, there is no one that can guarantee that your current employer will not bring a suit against you in order to try to enforce the non-compete agreement if you leave and try to work for a competitive business. Certainly having a review of your full agreement and discussing the facts with an attorney who has experience litigating restrictive covenants is advised. There are too many issues that can play into the enforceability, in addition to the existence of legitimate business interests, to discuss in a short response (i.e. whether your employer has let other employees compete without enforcing restrictive covenants, whether the geographic area and/or time are reasonable, whether your employer first breached the agreement).
    As stated above, it is not the number of years that have passed since you signed the agreement that matters. The time restriction only begins after you leave employment.
    The other important legal concern is a non-solicitation clause. Your statement above appears to restrict you from recruiting other co-workers to leave with you and/or join you at another business. Again, there are a myriad scenarios and facts to discuss whether this clause is enforceable.
    The only easy answer is if you do not want to be sued, and you still want to leave, do not go to work for a competitor and do not solicit or bring with you any of your current co-workers.
    Best of luck!

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  • Settlement

    I have been approached by the other side and asked how much I was willing to settle. I have calculated my actual damages but I wanted to factor in punitive damages. Could this be included by looking at previously similar cases and what they were...

    Scott’s Answer

    • Selected as best answer

    Knowing the value of a case is something that comes with experience. This is one of the reasons why you should really consider consulting an attorney who practices in the field related to your case before resolving the matter by yourself. Once you settle your claim, it is likely you will be bound by the settlement and unable to go back for more damages in the future. The language of the settlement and what it covers can be just as important as the settlement's monetary figure.

    There are myriad factors that play into the equation of what is a "good" settlement. You really have not provided enough facts or even the nature of the case in order to provide specifics. However, just to give you a few examples of what you may want to consider (depending on the type of case), you should think of the following: (1) the amount of actual damages, including out-of-pocket expenses; (2) any future damages that you may suffer; (3) the likelihood of prevailing if you continue with litigation; (4) the litigation cost to date and anticipated expenses in the future; (4) whether there is insurance coverage for the claim, and whether there are collectibility issues; (5) whether you can structure a settlement for more favorable payments over a period of time; (6) whether non-monetary terms should be included and add value (i.e. a confidentiality clause); (7) whether there are any entitlements to attorney's fees, punitive damages, statutory penalties, etc. These are all damages that you are not guaranteed or entitled to in every case. You also would want to know whether there are any statutory caps to damages for your claim. This is another reason you should speak with an attorney. I could continue with other considerations, but it is simply too difficult to list out everything that you should take into account when settling a claim.

    Yes, you can perform research, including reviewing jury verdicts in similar cases to find out the potential value of your case. However, I would remind you that as a partial party, and also being inexperienced in determining the value of the claim, you would be better served finding counsel to assist you both in determining the monetary settlement figure as well as the other terms of settlement.

    Best of luck!

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  • Non-compete question

    Hi, I am considering a job offer from another company and I signed non-compete agreement with my current employer (COMPANY_A) stated like that: " Upon termination of employment, for whatever reason, Associates may not compete with COMPANY_A...

    Scott’s Answer

    This is a very fact specific question that is difficult to completely answer from the limited information you provided. I understand you are trying to remain anonymous because of your current employment. If you are considering accepting the job, it would be wise to first consult an attorney that has familiarity with handling cases concerning restrictive covenants and non-compete clauses to review your contract first. The clause you stated appears at first glance to be more of a non-solicitation clause than a non-compete clause. The attorney will need to review the exact language in your employment agreement with Company A to see whether there truly is an enforceable non-compete provision. Florida law generally provides that non-compete clauses in contracts are enforceable to protect "legitimate business interests." See Florida Statutes Section 542.335. However, there are also other factors to consider including whether the geographic region of the non-compete is reasonable. It equally will depend whether the two companies are in direct competition in the same community.

    DISCLAIMER: The above response and answer to your question should not be interpreted in any fashion to create an attorney-client relationship. This response is solely meant for general informational purposes. You should not use, interpret, or rely on the response as legal advice, representation or an opinion. Please consider consulting a licensed attorney for legal advice specific to your situation.

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  • My husband works for a company as a sales agent. Can he leave and work for himself or me? He did sign a non compete.

    The employer has consistently breached the employment agreement by not paying commissions on time or changing commission structure after sales are made. He has given my husbands clients and other people’s sales to other agents without notice or re...

    Scott’s Answer

    • Selected as best answer

    You and your husband should consult an attorney that has familiarity with handling cases concerning restrictive covenants and non-compete clauses. The attorney will need to review your husband's specific employment agreement and contract terms. Florida law generally provides that non-competes are enforceable to protect "legitimate business interests." See Florida Statutes Section 542.335. However, you may be able to prove that the employer has breached the contract through its non-payment of commissions. If you hire your husband you should anticipate that litigation could ensue - if your goal is to avoid a lawsuit completely, he may want to consider a job that is not in direct competition with his employer and which would not potentially be in violation of the contract.

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  • When people say free consultation what does that mean?

    regarding attourneys ,when an attourney says they give free consultation what are they saying? and how long is the free consultation session. thank you.

    Scott’s Answer

    • Selected as best answer

    I agree. Generally law firms will offer about a 30-minute free consultation (depending on the complexity of the case and the about of money or risk at issue it may be longer). Remember, this consultation is two-way interview. Hiring of an attorney is an important decision and you should make sure that the attorney is right for you and your legal needs. The Florida Bar has developed a consumer guide with basic client's rights that you may want to review:

    http://www.floridabar.org/tfb/TFBConsum.nsf/48e76203493b82ad852567090070c9b9/e4c9f30ff65a77c985256b2f006c6224?OpenDocument

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  • How do I as a physician in Florida whose malpractice lawyer and malpractice carrier SETTLED a case when I wanted to go to trial

    GET the case expunged from the national or any otheer data base. How doI file an action for incompetent legal representation and racism. I cannot afford the cost of private counsel.

    Scott’s Answer

    Doctor, let me address the issue regarding the settlement, as this seems to be your immediate concern and the center of your frustration. The real question under Florida law is whether the carrier acted in the best interests of its insured (you - assuming you are the insured under the policy) by settling the claim made against you. If you have a bona fide situation with actual evidence of racism (i.e. e-mails from the claims adjuster or other documentation that substantiates a claim of racism), you should consider a consultation with legal counsel. Absent that evidence, you will likely and unfortunately be fighting an uphill battle against the carrier assuming the settlement was within your policy’s limits of liability.
    While some of the other attorney-contributors above mentioned your policy of insurance, they are in part correct, as the policy language will help frame the issue of your rights as an insured and what was in your best interest. However, for medical malpractice claims, it must be stated that Florida has a statute directly addressing the issue of consent. Florida Statute s. 627.4147 prohibits policy provisions requiring the consent of health care providers in professional liability policies, including those that provide exclusive discretion of the insured to consent to admissions of liability in presuit under Florida Statutes Chapter 766, as well as policies that give the health care providers the absolute right to veto settlement within policy limits once a lawsuit is pending.
    Because of the public policy concerns discussed by the Florida Legislature in enacting s. 627.4147, Fla. Stat., there are cases which hold that allegations of higher insurance premiums in the future, cancellation of coverage, and damages to the insured's reputation (including listing in the National Practitioner Data Bank) are not examples of bad faith by the carrier in settlement of covered claims within policy limits. In fact, reporting to the data bank is often required depending on the claim and settlement amount.
    If the settlement was outside of your policy limits and/or you were forced to personally contribute towards the settlement, if you had any pending counterclaims at the time of the settlement that were compromised by the insurer's settlement of the case, or if you have other evidence which shows you were materially prejudiced (i.e. through racism) then you may have a claim and should consider seeking counsel.
    In regards to your question about filing an action for alleged incompetent legal representation, I echo the discussion by my colleagues above and state that if you feel you have a claim you should consider seeking advice of private counsel - there are indeed many attorneys who will provide you a free initial consultation.
    Best of luck!

    DISCLAIMER: The above response and answer to your question should not be interpreted in any fashion to create an attorney-client relationship. This response is solely meant for general informational purposes, and you should not use, interpret, or rely on the response as legal advice, representation or an opinion. Please consult with a licensed attorney for legal advice pertinent to your situation.

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