Motion to Extend Time SC14-1637, Gillespie v The Florida Bar

8/9/2019 Motion to Extend Time SC14-1637, Gillespie v The Florida Bar

1/38

IN THE SUPREME COURT OF FLORIDA

STATE OF FLORIDA

NEIL J. GILLESPIE,

Petitioner pro se (nonlawyer),

CASE NO.: SC14-1637

VS.

THE FLORIDA BAR,

Respondent.

_________________________________ /

Petitioner’s Motion to Extend Time

1. The Petitioner, Neil J. Gillespie, a nonlawyer person with disabilities reluctantly

appearing pro se, henceforth in the first person, moves to extend time under Fla. R. App. P.

9.300(a), and Fla. R. Jud. Admin. 2.514, and states:

2. This Court’s ORDER entered January 27, 2015 (Exhibit A) held,

In reviewing our records, we note that your case is subject to dismissal for failure to

comply with this Court's direction. See Fla. R. App. P. 9.410.

We have not received the proper petition for writ of mandamus in accordance with this

Court's order dated December 12,2014. Failure to file the above referenced documents

with this Court within fifteen days from the date of this order could result in the

imposition of sanctions, including dismissal of the petition.

Please understand that once this case is dismissed, it may not be subject to reinstatement.

3. Under Fla. R. App. P. 9.300(a), Motions, and Fla. R. Jud. Admin. 2.514, Computing and

Extending Time, I respectfully request the Supreme Court extend time to file a proper petition

for writ of mandamus.

4. In support of this motion to extend time, I have been reluctantly appearing pro se in the

wrongful foreclosure of my home in Marion County, Florida which has taken considerable time.

Filing # 23964246 E-Filed 02/19/2015 02:08:40 PM


2/38


February 19, 2015

2

Reverse Mortgage Solutions, Inc. v. Neil J. Gillespie, et al., Marion County Florida, Fifth

Judicial Circuit, No. 42-2013CA-000115-AXXX-XX, a.k.a. case no. 2013-CA-000115.

Wrongful home foreclosure on a HECM reverse mortgage.

5. I emailed the Clerk of the Supreme Court about the following:

A. Email February 6, 2015 to determine if the Order at Exhibit A was subject to Rule

2.514(b) of the Florida Rules of Judicial Administration adding 5 days time to respond.

B. Email February 11, 2015, inter alia: (Exhibit B)

As a practical matter, I have been overwhelmed with work in my foreclosure case and

would not be able to submit anything today. Case SC14-1637 was opened on my inquery

letter about Florida Bar records. During the course of working on that issue, I found a

number of systemic problems with TFB. Separately the ADA Amendments Act 2008

issue came to my attention, along with Marion County/Fifth Judicial Circuit's refusal to

comply with the old ADA 1990, let alone the current ADA. The response of Mr. David for OSCA, who I understand represents the interest of the Supreme Court, shows no

intention of willing compliance with the ADA as amended.

Notwithstanding the records I initially sought in SC14-1637, TFB has fatal systemic

issues, and the state of Florida does not acknowledge the ADA Amendments Act, or

comply with the ADAAA. So there are essentially two cases now, TFB and the ADAAA.

If SC14-1637 is still open Tuesday Feb-17-2015, I will submit a petition consolidating

the issues. Attached are two close-out letters I got from TFB yesterday for my complaint

against Ms. Parsons. Given the limited jurisdiction, inter alia, of the grievance system,

TFB does not provide any useful relief to a complainant. I do not see any benefit tomaking a Florida Bar complaint. It takes considerable time that would be better spent on

my case.

Note: Mr. Paul Hill, General Counsel for The Florida Bar, provided the two close-out letters by

email February 10, 2015. (Exhibit C). I did not receive the letter by USPS purportedly sent by

Bar Counsel Patricia Savitz dated January 30, 2015.

Mr. Gillespie:

My apologies for overlooking your separate accommodation request relating to your complaint against attorney Danielle Nicole Parsons.

Prior to finalizing my response to your accommodation request in this case, I checked its

status with the Bar's disciplinary staff.

Those personnel confirm that Case No. 2014-30,525 (9A) was closed on January 28,

2015, on a finding of no probable cause.


3/38


February 19, 2015

3

I enclose a pdf copy of correspondence advising of that outcome -- from Patricia Savitz,

two days later -- which, I am told, was directed to you via USPS to the address shown.

I do not know any other details regarding the postal history of this letter or envelope.

Nonetheless, based on the current status of Case No. 2014-30,525 (9A), I would consider

your December 15, 2014 accommodation request as moot.

I hope this information is helpful to you.

C. Email February 18, 2015 @3:34 PM (Exhibit D), with attachments.

Exhibit D.1 Lethal Punishment, Chapter 5+front material 34p

Exhibit D.2 Lynchings in Florida, Ocala #1 - UF Professor Jack Davis

Exhibit D.3 31 FlaJur2d sec 2195 Total-Partial Disability, etc. (2007)

Exhibit D.4 31 FlaJur2d sec 2195 Total-Partial Disability-pocket part 1p. (2007)Exhibit D.5 31 FlaJur2d sec 2191 Duty of insured to remove disability. (2007)

Exhibit D.6 SC11-1622 Appendix Vol 14, BRC & DVR 74p

Mr. Tomasino:

This is a letter motion to extend the time to file in Petition SC14-1637. I would have

preferred to file a formal motion, but time is of the essence in matters in my foreclosure.

Attached you will find Chapter 5 of the book Lethal Punishment, The End of Lynching In

Marion County, with front book material, 34 pages. Chapter 5 shows the prevalence of

white supremacy in Marion County, which I contend is prejudice against me for disability.

Marion County leads Florida in the number of lynchings, according to UF Professor Jack

Davis.

Also attached are portions of 31 FlaJur2d on disability, which is related to my ADA Title

II requests, and Judge Stancil’s "driver’s licensee" disability test. I testified that I

curtailed driving due to accidents, and will provide photographic evidence of the cars I

crashed, along with other supporting evidence, including a federal tax return, in a motion

being prepared. All of this is taking time that I could have used on Petition 14-1637. Also

attached is an Appendix from SC11-1622 related to vocational rehabilitation, which wasdenied. Florida claimed I was too disabled to benefit from VR services.

Also, see this "Speech by Judge Hale Stancil on Sept. 1, 2008" given as keynote speaker

at the annual National Association of Forensic Counselors held in Las Vegas in

September 2008. http://www.stancilreunion.com/hale.html


4/38


February 19, 2015

4

D. Email February 18, 2015 @4:05 PM (Exhibit E), with attachments.

Exhibit E.1 Judge Stancil news story Debra Lafave case 1p

Exhibit E.2 State v. LaFave 04.CF.2454 3.21.06 Order

Mr. Tomasino:

Thank you for your email message. I'll get a motion filed before 9:00 AM tomorrow.

I neglected to provide a news story about Judge Stancil in the Debra Lafave case, and the

Order entered in State v. LaFave 04.CF.2454 3.21.06.

The State of Florida dropped the case after Judge Stancil refused to believe a

psychological assessment that indicated there would be damage to a minor witness

should he be forced to testify, so the prosecutor dropped the charges. Judge Stancil also

refused a plea deal sought by all parties, and the prosecutor. The same plea was accepted

in Hillsborough County.

Thank you for your consideration.

6. Letter of Barry Davidson March 10, 2014 for Respondent Ms. Parsons to Bar Counsel

Mr. Littlewood in The Florida Bar File No. 2014-30,525(9A), this part,

With respect to any other claims Mr. Gillespie may allege in the future, I note that Ms.

Parsons is protected from liability by the litigation privilege, which extends to all causes

of action, including both common-law torts and statutory causes of action. Levin,

Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. US. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994) (holding that any act occurring during the course of a judicial

proceeding enjoys "absolute immunity"); see also Echevarria, McCalla, Raymer, Barrett

& Frappier v. Cole, 950 So. 2d 380, 384 (Fla. 2007) (holding that the litigation privilege

extends to all causes of action, including statutory causes of action).

It appears Mr. Davidson is correct about the “litigation privilege.” This “litigation privilege”

essentially negates the Florida Rules of Professional Conduct within litigation, as well as the

Florida Supreme Court Verification Rule, SC09-1460, that amended Rule 1.110(b) to require

verification of mortgage foreclosure complaints involving residential real property. See In re

Amendments to the Florida Rules of Civil Procedure, 44 So.3d 555, 556 (Fla. 2010). In my

residential homestead foreclosure, Ms. Parsons filed the case as a “Commercial Foreclosure”

which falsehood is supported by Judge Hale Stancil, and Curtis Wilson, a colleague of Ms.


5/38


February 19, 2015

5

Parsons at McCalla Raymer, LLC, a foreclosure mill. A letter of Congressman Elijah E.

Cummings February 25, 2011 to The Honorable Steve A. Linick, Inspector General, Federal

Housing Finance Agency, requested an investigation of foreclosure mills: (Exhibit G)

Dear Mr. Inspector General: I am writing to request that you initiate an investigation into

widespread allegations of abuse by private attorneys and law firms hired to process

foreclosures as part of the "Retained Attorney Network" established by Fannie Mae. I

also request that you examine allegations of abusive behavior on the part of default

management firms engaged by both mortgage servicers managing Fannie Mae-backed

loans and attorneys and firms that are part of the Retained Attorney Network. Finally, I

request that you examine efforts by Fannie Mae and the Federal Housing Finance Agency

(FHFA) to investigate these allegations and implement corrective action.

Congressman Cummings referred to McCalla Raymer. LLC by name on page 3:

Another firm in the Retained Attorney Network, McCalla Raymer, L.L.C., is a defendant

in a federal lawsuit in which the plaintiffs allege that it engaged in fraud, racketeering,

and the manufacture of fraudulent foreclosure documents. Reportedly, this firm

established operations in Florida under the name Stone, McGehee & Silver and hired ten

former Stern law firm employees. [fn9] The firm Stone, McGehee and Silver, LLC, dba

McCalla Raymer currently appears as a "Designated Counsel/Trustee" in Florida for

Freddie Mac. [fn10]

There has been no investigation of McCalla Raymer, LLC that I know about. Congressman

Cummings is himself an attorney, and presumably knows the litigation privilege protects the

misconduct of attorneys and foreclosure mills complained about.

7. The “litigation privilege” essentially negates the rights of self-represented persons

defending home foreclosure. Those constitutional rights include:

Article I, Section 21, of the Florida Constitution, guarantees every person access to

justice for redress of any injury, where justice shall be administered without sale, denial or delay.

SECTION 21. Access to courts.—The courts shall be open to every person for redress of

any injury, and justice shall be administered without sale, denial or delay.

Article I, Section 9, of the Florida Constitution, guarantees every person due process:


6/38


February 19, 2015

6

SECTION 9. Due process.—No person shall be deprived of life, liberty or property

without due process of law, or be twice put in jeopardy for the same offense, or be

compelled in any criminal matter to be a witness against oneself.

Article I, Section 2, of the Florida Constitution, guarantees every person Basic Rights:

SECTION 2. Basic rights.—All natural persons, female and male alike, are equal before

the law and have inalienable rights, among which are the right to enjoy and defend life

and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and

protect property; except that the ownership, inheritance, disposition and possession of

real property by aliens ineligible for citizenship may be regulated or prohibited by law.

No person shall be deprived of any right because of race, religion, national origin, or

physical disability.

8. Bar Counsel Ms. Savitz wrote in her amended letter February 10, 2015 in the matter of

Complaint by Neil J. Gillespie against Danielle Nicole ParsonsThe Florida Bar File No. 2014-30,525 (9A)

“...The allegations in your complaint involve the civil and federal cases regarding the

efforts to pursue a foreclosure on your home. The underlying litigation is ongoing and

vigorously contested. It is clear from your materials that it remains your position that Ms.

Parsons engaged in unethical conduct during her representation of foreclosure plaintiff,

Reverse Mortgage Solutions, Inc. However, the grievance committee has determined that

there insufficient basis for further disciplinary proceedings regarding the actions taken by

Ms. Parsons in the foreclosure case. Moreover, it would appear that the issues raised in

this matter are appropriate for review and determination by a court of competent

jurisdiction assigned to handle such cases. Accordingly, this case is now closed...”

9. The foregoing is conclusive evidence supporting a right to civil counsel appointment in

matters of shelter, sustenance and safety and/or health. The American Bar Association (ABA)

recently added a "Civil Right to Counsel" page, "Law Governing Appointment of Counsel in

State Civil Proceedings", with 50 research reports, one for each state detailing existing authority

for appointment of counsel in various types of civil proceedings. The ABA contends there is a

right to civil counsel, inter alia, under Fla. Stat. § 29.007 Court-appointed counsel, “...in any

situation in which the court appoints counsel to protect a litigant’s due process rights.”

10. I am continuing my efforts to obtain private counsel.


7/38


February 19, 2015

7

11. In compliance with Rule 9.300(d)(10), I request the Supreme Court toll time. A separate

request to toll time accompanies this motion.

WHEREFORE, I respectfully move the Supreme Court to extend time to file a proper

petition for writ of mandamus.

RESPECTFULLY SUBMITTED February 19, 2015.

Neil J. Gillespie, petitioner pro se

8092 SW 115th

Loop

Ocala, Florida 34481

Telephone: (352) 854-7807

Certificate of Service

I hereby certify Petitioner’s Motion to Extend Time, and Petitioner’s Separate Request to

Toll Time, were furnished on February 19, 2015 through the E-Filing Portal by email to:

Adria E. Quintela, Director of Lawyer Regulation John F. Harkness, Executive Director

The Florida Bar, [email protected] The Florida Bar, [email protected]

Neil J. Gillespie, petitioner pro se


8/38

~ u r t t

ourt

of

jflortba

TUESDAY, JANUARY 27 2015

CASE NO.:

SC14-1637

NEIL J. GILLESPIE

vs. THE FLORIDA BAR

Petitioner(s)

Respondent(s)

In reviewing our records, we note that YOllr case is subject to dismissal for

failure to comply with this Court s direction. See Fla. R. App. P. 9.410.

We have not received the proper petition for writ

of

mandamus in accordance

with this Court s order dated December

12 2014.

Failllre to file the above

referenced documents with this Court within fifteen days from the date

of

this order

could result in the imposition

of

sanctions, including dismissal

of

the petition.

Please understand that once this case is dismissed, it may not be subject to

reinstatement.

A True Copy

Test:

JohnA. Tomasino

Clerk, Supreme Court

ab

Served:

ADRIA E. QUINTELA

NEIL J. GILLESPIE

A

Filing # 23964246 E-Filed 02/19/2015 02:08:40 PM


9/38

Neil Gillespie

From: "Neil Gillespie" To: "John Anthony Tomasino" Cc: "John F Harkness" ; "Adria E Quintela" ; "Neil

Gillespie" Sent: Wednesday, February 18, 2015 3:34 PM

Attach: 31 FlaJur2d sec 2195 Total-Partial Disability-pocket part 1p..pdf; 31 FlaJur2d sec 2191 Duty ofinsured to remove disability..pdf; 31 FlaJur2d sec 2195 Total-Partial Disability, etc..pdf; LethalPunishment, Chapter 5+front material 34p.pdf; Lynchings in Florida, Ocala #1 - UF Professor JackDavis.pdf; Appendix Vol 14, BRC & DVR, w exh.pdf

Subject: Extend time in Petition SC14-1637

Page 1 of 1

2/19/2015

VIA Email: [email protected]

John A. Tomasino, ClerkSupreme Court of Florida500 South Duval StreetTallahassee, Florida 32399-1927

RE: Extend time in Petition SC14-1637

Mr. Tomasino:

This is a letter motion to extend the time to file in Petition SC14-1637. I would have preferred to file aformal motion, but time is of the essence in matters in my foreclosure.

Attached you will find Chapter 5 of the book Lethal Punishment, The End of Lynching In MarionCounty, with front book material, 34 pages. Chapter 5 shows the prevalence of white supremacy inMarion County, which I contend is prejudice against me for disability.

Marion County leads Florida in the number of lynchings, according to UF Professor Jack Davis.

Also attached are portions of 31 FlaJur2d on disability, which is related to my ADA Title II requests,and Judge Stancil’s "driver’s licensee" disability test. I testified that I curtailed driving due to accidents,and will provide photographic evidence of the cars I crashed, along with other supporting evidence,including a federal tax return, in a motion being prepared. All of this is taking time that I could haveused on Petition 14-1637. Also attached is an Appendix from SC11-1622 related to vocationalrehabilitation, which was denied. Florida claimed I was too disabled to benefit from VR services.

Also, see this "Speech by Judge Hale Stancil on Sept. 1, 2008" given as keynote speaker at the annual National Association of Forensic Counselors held in Las Vegas in September 2008.http://www.stancilreunion.com/hale.html


Sincerely, Neil J. Gillespie

8092 SW 115th Loop

Ocala, Florida 34481Telephone: (352) 854-7807

D

Filing # 23964246 E-Filed 02/19/2015 02:08:40 PM


10/38

Neil Gillespie

From: "Neil Gillespie" To: "John Anthony Tomasino" Cc: "John F Harkness" ; "Adria E Quintela" ; "Neil

Gillespie" Sent: Wednesday, February 18, 2015 3:34 PM

Attach: 31 FlaJur2d sec 2195 Total-Partial Disability-pocket part 1p..pdf; 31 FlaJur2d sec 2191 Duty ofinsured to remove disability..pdf; 31 FlaJur2d sec 2195 Total-Partial Disability, etc..pdf; LethalPunishment, Chapter 5+front material 34p.pdf; Lynchings in Florida, Ocala #1 - UF Professor JackDavis.pdf; Appendix Vol 14, BRC & DVR, w exh.pdf

Subject: Extend time in Petition SC14-1637

Page 1 of 1

2/19/2015

VIA Email: [email protected]

John A. Tomasino, ClerkSupreme Court of Florida500 South Duval StreetTallahassee, Florida 32399-1927

RE: Extend time in Petition SC14-1637

Mr. Tomasino:

This is a letter motion to extend the time to file in Petition SC14-1637. I would have preferred to file aformal motion, but time is of the essence in matters in my foreclosure.

Attached you will find Chapter 5 of the book Lethal Punishment, The End of Lynching In MarionCounty, with front book material, 34 pages. Chapter 5 shows the prevalence of white supremacy inMarion County, which I contend is prejudice against me for disability.

Marion County leads Florida in the number of lynchings, according to UF Professor Jack Davis.

Also attached are portions of 31 FlaJur2d on disability, which is related to my ADA Title II requests,and Judge Stancil’s "driver’s licensee" disability test. I testified that I curtailed driving due to accidents,and will provide photographic evidence of the cars I crashed, along with other supporting evidence,including a federal tax return, in a motion being prepared. All of this is taking time that I could haveused on Petition 14-1637. Also attached is an Appendix from SC11-1622 related to vocationalrehabilitation, which was denied. Florida claimed I was too disabled to benefit from VR services.

Also, see this "Speech by Judge Hale Stancil on Sept. 1, 2008" given as keynote speaker at the annual National Association of Forensic Counselors held in Las Vegas in September 2008.http://www.stancilreunion.com/hale.html


Sincerely, Neil J. Gillespie

8092 SW 115th Loop

Ocala, Florida 34481Telephone: (352) 854-7807

D

Filing # 23964246 E-Filed 02/19/2015 02:08:40 PM


11/38

TRACY WILCOX/The Gainesville Sun

University of Florida professor Jack Davis is ascholar of race relations in the South.

According to his and others' research, Alachua

County has the second highest number of

lynchings on record of any county in Florida,

right behind Marion County.

Lynchings in Florida? It was a problem here,

too

B y C L AUD I A ADR I EN

Special to The Sun

Published: Saturday, September 3, 2005 at 6:01 a.m.

The shelves of Jack Davis' home office are

wall-to-wall, filled with books that depict

anything and everything about the states south

of the Mason-Dixon Line. Davis, a University of

Florida history professor, isn't just passionate

about the events that mark the Deep South.

Simply put: They're his life.

Feeding his passion, though, hasn't come

without a price."I just don't have it in me to do another

race-relations study," Davis says.

The study of race and the South, a never-ending

discussion among historians and laymen alike,

is a hot topic nowadays.

In June, a Mississippi jury convicted former Klansman Edgar Ray Killen of three

counts of manslaughter for the 1964 deaths of civil-rights activists James Chaney,

Andrew Goodman and Michael Schwerner. Also in June, the U.S. Senate officially

apologized for all lynchings that took place between 1882 and 1968 in this country.

Numerous attempts to pass anti-lynching legislation in the Senate had been

filibustered or blocked decades earlier.

For Davis, studying lynchings has meant interviewing hundreds of people living instates like Mississippi and Georgia. And Florida.

"A black man had more risk of being lynched in Florida than any other place in the

country," Davis contends.

The NAACP defines lynchings as any murder that was/is conducted extra-legally or

beyond the rule of the court, under the pretense of upholding justice, Davis says.

The NAACP and other sources show that, per number of black people, Florida had

the highest lynching rate among any Southern state. Davis says about 36 percent of

these lynchings occured in what historians call Florida's Old Plantation Belt,

stretching from the Panhandle to the central part of the state. Between the 1880s to

the 1940s, there were more than 200 lynching deaths in the state, and 20 confirmed

deaths occured in Alachua County alone, according to University of Florida research.

Alachua County was the second most lynch-prone county behind Marion County.NAACP numbers show 21 lynching deaths there.

Davis began serious research into Florida's lynching past about 15 years ago in

Madison County for his master's thesis at the University of South Florida. He

investigated the 1945 death of Jesse James Payne, a sharecropper who Davis says

had threatened to expose his employer, Levy Goodman, a local tobacco farmer,

because the farmer hadn't paid federal taxes on his crop.

Goodman, angered by the potential exposure, accused Payne of molesting the

farmer's 5-year-old daughter, historical accounts say. According to these accounts, a

lynch mob of 50 white men went after Payne. Davis says the mob was legally

organized. The tobacco farmer's brother-in-law, Lonnie T. Davis, was the Madison

County sheriff. Payne survived, with a single gunshot wound in an arm. State

This copy is for your personal, noncommercial use only. You can order presentation-ready copies for distribution to your colleagues, clients or customers here or use the "Reprints" tool that appears aboveany article. Order a reprint of this article now.

http://www.gainesville.com/article/20050903/DAYBREAK/50903003?template=p

D.2

Filing # 23964246 E-Filed 02/19/2015 02:08:40 PM


12/38

Trooper Simeon Moore intervened and sent Payne to the state prison hospital.

Moore hoped Payne's injury and his brief hospital stay would calm the mob,

accounts say.

But Payne never made it into court after being transferred from the hospital to the

Madison County Jail. He was sprung from the jail and shot, his body riddled with

bullets, and found on a dirt road, according to Davis' research.

The Payne lynching was the only one on record in the U.S. in 1945, and it became a

national story. The lynching took place just after the Allied victory in World War II,

when optimism about the country's future reigned.

Florida Gov. Millard F. Caldwell condemned the Payne lynching, but Davis says that

was primarily because Caldwell worried the news would hurt Florida's lucrative

tourism industry.

"After the 1920s, state leadership generally condemned lynchings," he says, "mainly

because Florida was becoming a tourist state."

The nation's focus on Payne's lynching didn't help solve the murder, although Davis,

through his research decades later, gathered new evidence. Davis' thesis is part of

the UF libraries' collection.

The Payne lynching was only one of several that exposed Florida to nationwide

scrutiny. In 1934, Claude Neil was accused of raping a white woman, and many in

the town of Marianna were complicit in his lynching, Davis says. A majority of

victims were lynched on accusations of murder or theft, not rape, Davis says.

"(The Claude Neil case) really represented a turning point," he says. "It was a

lynching that outraged much of the American public outside the South."

The NAACP tried to use the Claude Neil incident to push the federal government

into passing anti-lynching legislation - legislation that was never passed.

Despite these high-profile cases, lynchings in Florida for decades received little

scholarly attention, Davis says.

"(Florida) doesn't tend to be studied as part of the South as a whole," says W.

Fitzhugh Brundage, a history professor at the University of North Carolina, Chapel

Hill.

Brundage, a noted scholar of the South who has written several books about

lynchings, says there's no definitive book written about Florida lynchings, and many

historians fail to include Florida in their analysis of lynchings. As the former chair of

the UF history department, Brundage is keenly aware of Florida's unflattering

history, especially in Alachua County.

In 1998, Brundage encouraged a student of his, Susan Jean, to explore her interest

in Florida lynchings and especially those that took place around Gainesville. The 18

lynchings Jean verified in Alachua County is a significant number, as few counties in

Georgia had that high a figure, Brundage says.

"That is extremely high by any standards in the South," Brundage says.

A surge in interest Scholars didn't begin in-depth lynching studies until the 1990s.

That's because, after the civil-rights movement, scholarly concentration moved to

affirmative action and more forward-looking issues surrounding race, says

Brundage. Lynching, scholars reasoned, was part of the past.

That began to change earlier this summer when U.S. senators pushed a resolution

through the Senate apologizing for the long string of lynchings in U.S. history. The

vote was oral, so no record was kept of who agreed or disagreed with the resolution.

Many of the senators who initiated the legislation were inspired by a book of

lynching photographs. The material from "Without Sanctuary: Photographs and

Postcards of Lynching in America" was first on display in Atlanta in 2002, and has

toured the country since. The exhibit is currently on display at the Chicago Historical

Society.

Brundage says the resolution was also inspired by the political motives of a few.

Despite lawmakers' ambiguous motivations, Brundage says he's excited about the

recent attention placed on this country's lynchings. Renewed scholarship may shed

light on the darkest elements of human behavior. But, Brundage also hopes there's



13/38

continued emphasis on Florida's past lynchings.

Digging into the past Jean, Brundage's former student, brought much of this past to

light more than seven years ago.

"I got started on it by accident," she says of her honors thesis.

Originally, Jean's intentions were only to look into Alachua County lynchings. But,

she felt there wasn't enough information. Instead, Jean spent a summer digging

through hundreds of issues of Florida papers and summarily verified more than 200

recorded Florida lynchings between the 1880s and the 1940s.

"Susan has the best count," Brundage says.

History, though, is more than compiling evidence. Jean decided to analyze the ways

in which white Southern reporters covered lynchings in Florida, if the lynchings

were covered at all.

"I wanted to see if there was continued discussion in the papers," she says.

Jean discovered that some smaller papers would cover a small-town lynching in full

detail, whereas a nearby larger newspaper would give it no coverage. Sometimes

newspapers were unlikely to report a lynching that could embarrass the community,

Jean says.

"(Newspapers) were a product of their time, and they were shaping their time," Jean

says. "You're always at the mercy of your records."

Some residents of Newberry, just west of Gainesville, claim there were more

lynchings than the 20 that Jean was able to verify for Alachua County. Jean hopes to

donate her research to the Newberry Public Library.

Davis insists that renewed study of past lynchings serves a greater purpose than

contributing to a body of knowledge.

"It's important we don't forget the way things were," he says.

Copyright © 2015 Gainesville.com — All rights reserved. Restricted use only.



14/38

INSURANCE

§

2195

his or

her

disability,

should

be

under

the regular

care

of a

physician; however, minor deviations (such

as

one or two

d'ays) from

such

minimum intervals are not sufficient to

bar recovery.5

In the absence

of

a policy stipulation to the contrary, the

treatment of the physician need not be at the

insured's

home.

6

c

Total

nd

Partial isability

§ 2195

Generally; what constitutes

total

disability

Research

References

West's Key Number Digest, Insurance CS=>2557 to 2562

Disability or accident insurance policies, or disability

clauses in life insurance policies, may properly restrict their

coverage to disability that is total. 1

Total disability is a relative term,

depending

upon the

character of insured's occupation. the capabilities of

the

insured, and the circumstances of the particular case,

2

and

which must

be

determined in the context of a liberal

construction

of

the

disability provision

in

order to

protect

the

policyholder.

3

However, that

term

does

not require that

the

insured be bedridden or reduced to complete helplessness.

4

5Mutual

Ben. Health Ace.

Ass'n v. Bunting, 133 Fla. 646, 183

So.

321

(1938).

6Mutual Ben.

Health Ace.

Ass'n v.

Bunting,

133 Fla. 646, 183

So. 321 (1938).

[Section 2195]

1Am

Jur. 2d, Insurance § 1474.

2Groff v. Paul Revere

Life

Ins.

Co.,

887 F. Supp. 1515

(S.D.

Fla.

1993), related

reference,

887 F.

Supp. 1519

(S.D.

Fla.

1994), related

reference,

85 F.3d

642

(11th Cir.

1996) and related

reference,

85

F.3d 643

(11th

Cir. 1996); Hazouri

v. Travelers Ins. Co.,

192

So. 2d

296

(Fla. Dist.

Ct. App. 3d Dist.

1966).

3New England Mut. Life

Ins.

Co. v. Huckins,

127

Fla.

540, 173

So. 696 (1937); Lorber v.

Aetna

Life

Ins. Co., 207 So. 2d

305

(Fla. Dist.

Ct. App. 3d Dist. 1968).

4Equitable

Life

Assur. Soc. of

the U.S. v. Neill, 243 F.2d 193

(5th

Cir. 1957); Groff v. Paul

Revere

Life Ins. Co., 887 F. Supp. 1515

(S.D. Fla. 1993), related reference,

887 F.

Supp.

1519 (S.D.

Fla.

1994),

related

reference, 85 F.3d 642

(11th

Cir. 1996) and related

reference, 85

F.3d

643

(11th

Cir. 1996);

New

York Life

Ins.

Co. v. Bird, 152 Fla.

532, 12 So. 2d 454 (1943); Grauer

v. Occidental Life Ins. Co. of

California,

363

So. 2d

583

(Fla.

Dist.

Ct. App. 1st

Dist.

1978).

355

D.3

Filing # 23964246 E-Filed 02/19/2015 02:08:40 PM


15/38

§2195

FLORIDA

JUR 2d

Whether one

is

totally

disabled is

ordinarily a question of

fact.

5

Disability provisions are generally of

two

types: an oc-

cupational

disability"

clause,

which

requires

only

that

the

insured

be unable to perform

the

duties of his or her partic-

ular

occupation

in

order

to recover,

and

a

"general

disabili-

ty" clause, which conditions the

payment

of benefits

there-

under on the insured's inability to perform the duties of any

occupation.

6

§ 2196 Occupational

disability

Research References

West's Key

Number

Digest,

Insurance ~ 5 4 3 2561

A typical occupational disability

provision

requires

that

the insured be

unable

to

perform

the

duties

pertaining

to

his

or

her

regular occupation.

In applying such a clause,

the

court must look at

the

insured's

occupation as a whole.

2

The

insured's

disability

will

be

considered

total

if

it

is such

that

he

or she

is unable to do "substantially" all the

"material"

acts

which

are usually

required to be performed in the oc-

5New York Life Ins. Co

v

Bird,

152 Fla. 532, 12 So. 2d 454 (1943).

6For general discussion of such

clauses, see §§ 19566, 2197.

[Section

2196]

1S

ee

, for example, Groff v Paul

Revere Life Ins. Co., 887 F. Supp.

1515 (S.D.

Fla.

1993),

related

reference, 887 F. Supp. 1519 (S.D.

Fla.

1994),

related

reference,

85

F.3d

642

(11th

Cir. 1996) and re-

lated reference, 85 F.3d 643 (11th

Cir. 1996).

2S

un

Life Ins. Co of America v.

Evans, 340 So. 2d 957

(Fla.

Dist.

Ct. App.

3d

Dist. 1976); Lorber v.

Aetna

Life Ins. Co., 207 So. 2d 305

(Fla. Dist. Ct. App. 3d Dist. 1968).

nnotation References What

constitutes total

disability within

coverage of disability insurance

356

policy issued to lawyer, 6 A.L.R. 4th

422.

What constitutes permanent or

total disability within coverage of

insurance policy issued to physical

laborer

or

workman,

32 A.L.R. 3d

922.

What

constitutes total or

per-

manent disability within

the

cover-

age of disability

insurance

coverage

issued to farmer or agricultural

worker, 26 A.L.R. 3d 714.

What

constitutes permanent or

total

disability

within

coverage of

disability insurance policy issued to

one engaged in

retail

merchandis-

ing, 23 A.L.R.

3d

773.

What constitutes total or per-

manent

disability

within the

mean-

ing of

insurance

policy

issued

to

physician or dentist, 21 A.L.R. 3d

677.


16/38

INSURANCE

§ 2196

cupation or profession or work

in

which he or she is engaged,3

in a customary and

usual

manner.

Thus, the total disabili-

ty provisions were applicable to a physician who continued

his office practice by

examining patients, supervising

office

staff and

making

post-operative visits,

but

was

unable to

perform unassisted major

head and neck

cancer surgery,

which previously constituted a major portion of his practice.

5

Total disability

does not

mean

a

state of helplessness

6

or

inability to

do

any

part

whatever

of

the

occupation,

or

to

perform any

work whatever

for compensation,7 and the fact

that

the insured performs, or

is

able

to

perform, some

inconsequential, trivial, or

incidental

duties connected with

his or

her

usual employment or occupation will

not preclude

recovery.8

On the

other hand, the mere

inability

to

perform

one duty or operation required

in

the

particular

occupation

does

not constitute

total disability,9

unless the insured

obtained a modification of the policy entitling him to benefits

if

he could

not

perform a specific aspect of his practice.

10

3Groff v. Paul Revere Life Ins.

Co.,

887 F.

Supp.

1515

(S.D.

Fla.

1993),

related

reference, 887 F.

Supp. 1519 (S.D. Fla. 1994), related

reference, 85

F.3d 642 (11th

Cir.

1996)

and

related reference,

85

F.3d 643

(11th

Cir. 1996);

Franklin

Life Ins. Co. v.

Tharpe,

130 Fla.

546, 178 So. 300 (1938),

reh'g

denied,

131 Fla. 213, 179 So. 406

(1938); Grauer v. Occidental Life

Ins. Co. of

California,

363 So. 2d

583 (Fla. Dist. Ct. App.

1st

Dist.

1978); Lorber v.

Aetna

Life Ins.

Co., 207 So. 2d 305 (Fla. Dist. Ct.

App.

3d

Dist. 1968).

4Groff v.

Paul

Revere

Life

Ins.

Co.,

887

F. Supp. 1515 (S.D. Fla.

1993), related reference,

887

F.


reference, 85 F.3d 642 (11th Cir.

1996) and

related

reference, 85

F.3d

643 (11th Cir. 1996); Grauer

v. Occidental Life Ins. Co. of

California, 363 So.

2d

583 (Fla.

Dist. Ct. App. 1st Dist. 1978);

Sun

Life Ins. Co. of America v. Evans,

340 So.

2d

957 (Fla. Dist. Ct. App.

3d Dist. 1976).

5Groff v. Paul Revere Life Ins.

Co., 887 F. Supp. 1515 (S.D. Fla.

1993), related reference, 887 F.


reference,

85 F.3d

642 (11th

Cir.

1996) and related reference,

85

F.3d 643 (11th Cir. 1996).

§ 2195.

7New

England

Mut. Life Ins.

Co. v. Huckins, 127 Fla. 540, 173

So. 696 (1937).

8Lorber v. Aetna Life Ins. Co.,

207 So. 2d 305 (Fla. Dist. Ct. App.

3d

Dist. 1968).

9Danzig v. Reliance Standard

Life Ins. Co.,

668 F.

Supp.

1551

(S.D. Fla. 1987) (postal worker).

1oRosenberg v. Guardian Life

fns. Co., 510 So. 2d 610, 12

Fla.

L.

Weekly 1541 (Fla. Dist. Ct. App. 3d

Dist. 1987) (ophthalmologist unable

to perform surgery).

357


17/38

§

2196

FLORIDA

J

UR

2d

Under an

occupational disability policy defining total dis-

ability as your

inability to engage

in your occupation, the

term

"your

occupation" referred to specific work done by

insured

at the time of

injury,

not to work

requiring similar

skills

and producing

comparable

income.

So,

under

such a

provision,

insured

who,

before suffering

a

disabling knee

injury, had been working as

a

yacht salesman,

was

engaged

in

the activity

or business of

selling

yachts,

notwithstanding

that he had worked

at

other

sales jobs

during

the

life of the

policy and

had obtained employment

as a

freight-space sales

man

for a trucking company after he began

receiving benefits

under the policy 12

•

Observation:

An

occupational disability clause may

provide

further

that

recovery

may be

had

only if the

insured is not engaged in

any other

gainful occupation or

employment.

13

§ 2197

General disability

Research References

West's

Key

Number

Digest,

Insurance ~ 2 5 6 1 5

A typical

general

disability clause

requires that the

insured

be

unable to

perform

the material

or substantial

duties of

any

occupation in

which

insured

reasonably could

1

be expected to

engage,

or prevented

from engaging

in

any

occupation or performing

any

work

for

compensation of

financial value,2

or

from performing any work, following any

occupation,

or engaging

in any business for remuneration or

11Berkshire

Life

Ins.

Co. v.

Adelberg, 698 So. 2d 828, 22 Fla. L.

Weekly

S513 (Fla. 1997);

Strama v.

Union Fidelity Life Ins. Co., 793

So.

2d

1129, 26

Fla.

L.

Weekly

D2210 (Fla. Dist. Ct. App. 1st Dist.

2001).

12Berkshire Life Ins.

Co.

v.

Adelberg, 698 So.

2d

828, 22 Fla. L.

Weekly

S513 (Fla. 1997).

13Grauer

v. Occidental

Life

Ins.

Co. of

California,

363 So.

2d

583

(Fla. Dist. Ct. App. 1st Dist. 1978).

Forms

References

Defense

that plaintiff earned money during

period of alleged disability. Am.

Jur. Pleading and Practice

Forms,

Insurance

§ 1032.

[Section 2197]

1McCluney v.

General

American

Life Ins. Co., 1

F. Supp. 2d

1347

(M.D. Fla. 1998), aff'd, 162 F.3d

1178 (11th eire 1998).

2S

ee

, for example, Equitable

Life Assur. Soc.

of

the U.S. v. Neill,

243

F.2d

193

(5th

eire 1957).

358


18/38

INSURANCE

§

2197

profit,3 or that

the

insured suffer

any

impairment of

mind

or

body

that

continuously renders it impossible for insured to

follow a gainful occupation.

4

Under such a clause, the insured

is totally disabled when his or

her

condition is such that he

or she

is

not

able to perform

the duties

of

any

occupation for

which

he

or

she

is fitted

or

qualified by education, training,

or experience.

5

Thus, a travel and market consultant was

not

totally disabled

from

an

injury

to

his

foot

and

back while

running,

even though

the

injuries

allegedly

restricted his

travel and reduced

his

firm's income, where the consultant

continued

to perform the duties of

employment as

owner of

the firm, continued to

travel, and

failed to show

that his

business

lost

money due to his alleged disability, and

the

policy defined total disability as

an

inability to perform

material and substantial

duties

of any

occupation

which

insured reasonably could be expected to engage in.

6

3S

ee

, for

example,

New York

Life Ins. Co. v. Bird, 152 Fla. 532,

12

So. 2d 454 (1943).

4S

ee

, for

example,

Mutual

Life

Ins. Co of New York v. Knight, 130

Fla. 733, 178 So. 898 (1937).

5Equitable Life

Assur.

Soc. of

the U.S. v. Neill, 243 F.2d 193 (5th

eire 1957); McCluney V. General

American Life Ins. Co., 1 F. Supp.

2d 1347 (M.D. Fla. 1998), aff'd, 162

F.3d 1178 (11th Cir. 1998); New

York Life Ins. Co. v. Bird, 152 Fla.

532, 12 So. 2d 454 (1943); Equita-

ble Life

Assur.

Soc.

of

U.S. v.

McKeithan,

119 Fla.

486, 160 So.

883 (1935).

Annotation References What

constitutes

total

disability within

coverage

of disability insurance

policy

issued

to lawyer, 6 A.L.R. 4th

422.

What constitutes permanent or

total disability within coverage of

insurance policy issued to physical

laborer or

workman,

32 A.L.R.

3d

922.

What constitutes total or per-

manent

disability within the cover-

age of disability insurance coverage

issued

to

farmer

or

agricultural

worker, 26 A.L.R.

3d

714.

What

constitutes

permanent

or

total disability within coverage

of

disability insurance policy issued to

one

engaged in retail

merchandis-

ing, 23 A.L.R. 3d 773.

What

constitutes

total or per-

manent disability within the mean-

ing of insurance policy

issued

to

physician or

dentist,

21 A.L.R.

3d

677.

Insurance: total disability or

the

like

as referring

to

inability

to

work

in

usual occupation or

in

other

occupations, 21 A.L.R. 3d 1155.

Trial Strategy

References

Unemployability as total disability.

Unemployability

Of

Insured Under

Disabi lity Policy, 18 Am.

Jur.

Proof

of Facts 2d 407.

6McCluney v. General American

Life Ins. Co., 1 F.

SUppa

2d 1347

(M.D. Fla. 1998), aff'd, 162

F.3d

1178 (11th Cir. 1998).

359


19/38

§

2197

FLORIDA J UR 2d

Generally,

an insured who continues or resumes working

subsequent to the

commencement of the

disability

is

precluded

from receiving total or

permanent

disability

benefits whenever he

or

she

substantially performs the

important

and material duties

of his

or

her occupation.

However

this

rule is

subject

to

many important

exceptions.

Thus, recovery

will

not be precluded where the insured

makes

an

unsuccessful

attempt to

works or

returns

to a

reduced or relaxed workload, or where he

or

she

participates

in

merely trivial or minor activities.

9

Thus, an elderly dentist

did

not terminate

his period of total

disability

because

of his

activities

as a partner

in

a firm

dealing in automatic laundry

equipment where the insured

came

to the office frequently

when he felt

like it

and performed a variety of odd jobs, but

two business trips attempted

by

him had

terminated

en route

because of his

physical condition,

he signed many

checks

while at home in

bed, he

drew

no salary

or

other

compensa-

tion, and

had

no specific

duties

to perform. 10

Even though

a

person

who becomes wholly

disabled

from

engaging in his or her occupation may nevertheless follow

some gainful

occupation after years of preparatory study and

mental training,

until

that end is accomplished and

the

insured

is

receiving profits

or remuneration

from

his or her

new

vocation,

the

insurer is

not

justified in

refusing monthly

benefit

payments.

11

§

2198 Specific injuries,

loss,

or a1llictions

as

total

disability

Research References

West's Key Number

Digest, Insurance

~ 5 6

7S

ee

Am. Jur. 2d, Insurance

§

1479.

Annotation

References

Con-

tinuance or resumption

of work

as

affecting finding

of total or

perma-

nent disability within insurance

coverage, 24 A.L.R. 3d 8.

sINA Life Ins. Co. of New York

v. Davis, 404 So. 2d 397 Fla. Dist.

Ct. App.

5th

Dist. 1981).

9Equitable

Life

Assur.

Soc.

of

the

U.S. v. Neill, 243 F.2d 193 (5th

Cir. 1957), stating

that

the

insured

is not

required

to remain completely

idle by confining his activities to his

home

or

the

recreational

pursuits

of elderly

retired

persons.

10Equitable Life

Assur.

Soc. of

the

U.S. v. Neill, 243

F.2d

193

(5th

Cir. 1957).

New York Life

Ins.

Co. v

Leeks, 122 Fla. 127,

165

So.

50

1935).

360


20/38

INSURANCE §

2199

Generally,

when the term "total

disability" is

used in

a

contract of insurance without any limitation whatever,

ei-

ther as to the

duration

of the

disability

or

as

to the cause

fromwhich it should arise, it may refer to temporary or per-

manent total disability arising from

various

causes, includ-

ing mental incapacity (which mayor

may

not render the

insured

wholly

or

totally disabled) or disease,1 or physical

sickness

or

disorder

such as

arthritis or diabetes,

3

loss

or

impairment of

vision

4

or

hearing,5

or

a

circulatory

disorders

such as clotting of veins in

the

legs,diminished bloodsupply

in the

lower

extremities,

phlebitis

with production

of emboli,

and bloodclots,with danger

of

occlusionsin

the heart,

lungs,

or extremities.

6

§2199 Continuity and permanence

Research

References

West'sKey

Number

Digest,Insurance

~ 5 6

to2562

A policy

may include the element of continuity,

and

undertake

to

insure

only

for

loss

resulting

from bodily

injuries

that wholly

and

"continuously"disable the

insured

.

In this

context,

the

word "continuously" means

regularly,

protracted, enduring,

and

without

any substantial interrup-

[Section

2198]

1Clarkson v. New York LifeIns.

Co.,4F.

Supp.

791 (S.D.Fla. 1933).

Annotation References

Men-

tal incapacity or disease as consti-

tuting total or permanent disability

within

insurance

coverage,

22

A.L.R.

3d

1000.

Annotation References:

Back injury or

condition

as

consti-

tuting

total or permanent disability

within

insurance

coverage,

23

A.L.R.

3d

1108.

3Pacific Mut. Life Ins. Co. of

Cal. v. McCaskill, 126

Fla.

82, 170

So. 579 (1936).

4New

York

Life

Ins.

Co.v. Bird,

152 Fla.

532, 12

So.

2d

454 (1943)

(insured

who suffered from cata-

racts in

both eyes was

totally

dis-

abled

even though he was able to

use

his vision to walk and to recog-

nize members of

his

family

and

friends, and to look

at

the

headlines

in the

newspaper

and

to

use a type-

writer

forafew

minutes).

5Am

Jur.

2d,

Insurance

§

1483.

6Equitable Life

Assur. Soc.

of

the U.S.v. Neill,

243

F.2d 193 (5th

Cir.1957).

Annotation References:

Heart

or vascular condition as

con-

stituting

total

or

permanent dis-

ability

within insurance

coverage,

21 A.L.R. 3d 1383.

361


21/38

§2199

FLORIDA J

UR

2d

tion

of

sequence.

1

Where the policy

language

is

unambigu

ous, a finding

that

there was a period following an employee's

injury during

which

he

was

not

disabled precludes recovery

under a policy requiring

continuity

of injury.2

Where

a policy provides for the

payment of the

compensa

tion for permanent disability,

and

then

stipulates

that such

payments

will be

made

only

during

the

continuance

of the

disability, the

insured

is entitled to recover

if

the nature of

the injury renders

it

reasonable to suppose that he will be

permanently disabled.

3

If it turns out that,

contrary

to

expectation, the disablement was not

permanent,

then pay

ments cease.

4

Under a policy

requiring

that total

disability

must have

existed continuously for at least a specified period, the

presumption of permanency attaches to a proved total dis

ability

after it has

existed continuously for

such

time,5 even

if the cause

of

the disability is no longer the

same

as what it

was when first incurred.

6

But if the insured is totally dis

abled

for a

time

but

not totally disabled within

the policy

definition following the

lapse of the prescribed

period, his

recovery is limited to

whatever the

contracts provides for in

the case of temporary total disability.7

[Section 2199] Defense that plaintiff is no longer

lAm. Jur. 2d, Insurance

§

1487.

totally disabled. Am. Jur.

Pleading

and Practice

Forms,

Insurance

2Skinner

v. Continental Cas.

§ 1031.

Co., 268 So.

2d

576 (Fla. Dist. Ct.

App.

2d

Dist. 1972).

4Cassens

v.

Metropolitan

Life

Ins. Co., 114 Fla. 659, 154 So. 522

3Equitable

Life

Assur.

Soc.

of

(1934).

U.S. v. Wiggins, 115

Fla.

136, 155

So. 327 (1934); Cassens v Metro

5Equitable

Life

Assur. Soc.

of

politan

Life Ins. Co., 114 Fla. 659,

U.S. v.

McKeithan,

119 Fla. 486,

154 So. 522 (1934).

160 So. 883 (1935).

Where total

disability

was not

6Mutual Life

Ins.

Co. of

New

of

such nature as

to indicate or sug

York

v. Knight,

130 Fla.

733,

178

gest

that

it was or would be perma

So. 898 (1937).

nent, insured

was

not entitled to

uggs

v.

Occidental Life Ins.

recover. Berry v. Fidelity

Cas.

Co.

of N.

C.,

256

So. 2d 243

(Fla.

Co.

of New

York, 163 So.

2d

339

Dist. Ct. App. 3d Dist. 1972) (in

(Fla. Dist. Ct. App.

3d

Dist. 1964).

sured

received

indemnity

for desig

Forms References Answer-

nated

24-month period).

362


22/38

INSURANCE

5. Extent of Injury or Disability

c Total and Partial Disability

§ 2195 Generally;what

constitutes"total

disability"

Cases

Under

Florida

law,

letter

from disabil-

ity

insurer's

chiefunderwriting

officer

to insure


23/38

§ 2190

FLORIDA JUR

2d

that

it

does not

cover

injuries

of

which there is no

visible

contusion

or

wound on the exterior of the body of the insured

causing the death where

the body

of the

insureq

is found

floating in water and there are

no visible

marks

or abrasions

on

the

exterior

of

his

body.

2

§ 2191

Duty of

insured

to

remove disability

Research References

West's Key

Number

Digest, Insurance ~ 5 6 4 2565

n

insured

who is suffering

from

a disability is under a

duty

to

avail

himself

or

herself

of

all reasonable

means and

remedies to

remove

such

disability.1

Thus,

an

osteopath with

a skin

condition on his hands, diagnosed as infectious

eczematoid

dermatitis,

was denied benefits

for

total disabil-

ity where he made no effort to have his condition treated by

a

dermatologist

until after

filing

his claim

of

disability, which

was several years after the onset of the condition, having

previously

prescribed and administered his own

treatment,

which

consisted mostly

of trying

out

free samples sent

to

him by

pharmaceutical companies;

and

where

there was

no

evidence that with

a

proper diagnosis and

regimen

the

condi-

tion would not yield to treatment.

2

If,

however, there is

a difference

of opinion

among doctors

about the

cause

of

the

disability,

benefits

may not be with-

held because

of

the party's

failure to follow the medical

advice of

the

insurer's doctor.

3

lVoelker

v

Combined Ins. Co of

Ellison, 223 F.2d 686

(5th

Cir.

America, 73 So. 2d 403 (Fla. 1954),

1955); Mutual Life Ins. Co.

of

New

in which recovery was denied where

York

v

Knight, 130 Fla. 733, 178

the insured's body was found float-

So. 898 (1937).

ing

in a canal near his

wrecked

2Mutual Life Ins.

Co

of N.

Y v

automobile.

Ellison, 223 F.2d

686

(5th Cir.

Annotation References

Life

1955).

or accident insurance: Sufficiency of

showing that death from drowning

3Mutual Life

Ins.

Co. of New

was due to

accident

or

accidental

York v. Knight, 130

Fla.

733, 178

means, 43 A.L.R. 3d 1168.

So. 898 (1937).

[Section 2191]

1Mutual Life Ins.

Co

of

N Y v

352

D.5

Filing # 23964246 E-Filed 02/19/2015 02:08:40 PM


24/38

Tweet 1 Follow

Judge Hale Stancil

« PREVIOUS CHAPTER 1 2 3 ... 10 11 12 13 14 15 NEXT CHAPTER »

WE RECOMMEND

Sexy Maid Caught In The Ac t from

South Beach Tow

Daddy-Daughter Competition from

FROM AROUND THE WEB

Remembering Jessica Savitch 30

Years After Her Death AARP

11 Things You Should Never Do Again

BY Ka t h er i n e Rams l a n d

Due Consideration

In Judge Hale Stancil's court, no plea would be accepted. In December 2005, he set a court date,

but three months later the prosecutor dropped the charges, based on a psychological assessment

that indicated there would be damage to the boy should he be forced to testify. In addition, there

were ramifications for other children who considered telling on their wayward teachers. If they saw

a boy paraded through the court system and the press, they might choose instead to suffer in

silence.

Judge Stancil was not pleased. In March, he handed down a

six-page decision in which he stated that, while no one of any

age looks forward to cross-examination, he did not think the

victim would have that much difficulty relating the crime in court.

He also decried the lack of victim advocacy in the case and

suggested that the psychiatric expert had not made a through

study before forming an opinion. As cited in the legal document,

Judge Stancil stated that accepting the plea agreement

undermined the court's credibility. He added that it "would erode

public confidence in our schools...[and] send the message that if enough publicity is generated, and

the media's interest continues long enough, and because of that interest the victim does not wish

to testify, a defendant can avoid an appropriate sentence." That consequence disturbed him. So,

once again, he rejected the deal and ordered a trial to commence in April.

However, it was the prosecutor who made the final decision. He declined to proceed. In fact, he

was dropping the charges in Marion County. It was a surprise, but perfectly legal, and it left Debra

Lafave with only the house arrest imposed in Hillsborough. Many people believed that the court

should have forced this case to trial, to teach her and other women like her a lesson, but there was

no going back now. She'd gotten off with a very light punishment.

By this time, Lafave had come to accept that she'd been influenced by a condition that had caused

mental instability. She called a press conference to reiterate this, in effect shucking her

responsibility in the matter. By this time, she was also engaged to another man, and he stood by

her. She said, "I know that I 'm a good woman," and affirmed her newfound Christian fai th. She

offered no reason as to why she had done what she did and did not show remorse. But it wasn't

long before she was ready with an answer. With aspirations herself to become a journalist, sheagreed to do an interview with Matt Lauer for Dateline on NBC television, which aired on

September 13, 2006. It was time, she thought, to tell her side.

21RecommendRecommend ShareShare

SE R H

F r o n t P a g e

Ser i a l K i l l e r s

Gangs t e r s

Ter r o r i s t s & Sp i e s

N o t or i o u s M u r d er s

Cr i m i n a l M i n d

Pho t o s

Criminal Psychology

Criminal Profiling

Forensics & Investigation

Sexual Assault

Scams & Hoaxes

All Criminal Mind

ADVERTISEMENT

The Seduction1.

The Sting2.

The Details Emerge3.

Her Defense4.

The Teacher 5.

The Boy6.

Illegal Acts7.

Truth or Consequences8.

Legal Actions9.

Deal or No Deal?10.

Due Consideration11.

Lafave and Lauer 12.

Reaction13.

Teacher Predators14.

Follow11kLikeLike

TM & © 2015 Turner Entertainment Networks, Inc. A Time Warner Company. All Rights Reserved Terms of Use Privacy Policy AdChoices

http://www.crimelibrary.com/criminal_mind/sexual_assault/debra_lafav

E.1

Filing # 23964246 E-Filed 02/19/2015 02:08:40 PM


25/38

IN

THE

CIRCUIT

COURT OF THE

FIFI H JUDICIAL

CIRCUIT

IN

ND FOR M RION

COUNTY, FLORIDA

STATE

OF

FLORIDA

vs.

DEBR BE SLEY

LAFAVE,

Defendant.

CASE NO. 04-2454-CF-A-Z

- - - - - - - - - - - - - - - - - - - - - - - - ~

ORDER REJECTING PROPOSED BELOW GUIDELINES PLE GREEMENT

The Defendant in this case is charged with two counts oflewd and lascivious battery on a

child, in violation

of

section 800.04(4)(a)

of

Florida Statutes, and one count

of

lewd and

lascivious exhibition, in violation

of

section 800.04(7)(a)

of

Florida Statutes. Consent

is

not an

issue, because both alleged victims were less than 16 years old at the time of the alleged

offenses. ee §§ 800.04(4)(a), 800.04(7)(a), Fla. Stat. (2005). All three charged offenses

constitute second degree felonies, each punishable by up to 15 years in the Department of

Corrections.

ee§§

800.04(4), 800.04(7)(c), 775.082(3)(c), Fla. Stat. (2005). Under the Florida

sentencing guidelines, the Defendant s lowest permissible prison sentence is 203.25 months or

16.9375 years. In order to sentence the Defendant to any lesser sentence, the Court must find

certain mitigating circumstances.

ee§§

921.00265, 921.0026, Fla. Stat. (2005).

The Defendant was charged with similar offenses in Hillsborough County, Florida, which

have been resolved by plea agreement.

1

The parties have presented to this Court a proposed plea

agreement with similar

if

not identical) terms. The parties first presented the plea agreement at

the December 9, 2005 pre-trial/status conference, and the Court rejected it. Subsequently, the

Court set a hearing on March

8

2006 to hear evidence regarding the rationale for the plea

agreement. The proposed plea agreement will require the Defendant to enter a plea

of

guilty as

1

The Hillsborough County plea agreement was apparently conditioned upon this Court s

acceptance

of

a similar plea agreement.

In

other words, if the proposed plea agreement were

rejected by this Court, the Defendant would have the right

to

withdraw her plea to the charges

in

Hillsborough County and proceed to trial. However, this Court was not a party to plea

negotiations

in

Hillsborough County and was not apprised

of

the plea agreement in Hillsborough

County until the December 9, 2005 pre-triaVstatus conference.

omputer

9

Page 1

of6

E.2

Filing # 23964246 E-Filed 02/19/2015 02:08:40 PM


26/38

State vs. Lafave

04-2454-CF-A-Z

charged for an adjudication

of

guilt. The Defendant would be sentenced to three years

of

community control followed by seven years

of

probation (with a myriad of special conditions),

to run concurrently

with

her Hillsborough County sentence.

For

the reasons that follow, this

Court finds that the parties have failed

to

present sufficient justification to accept the below

guidelines plea agreement.

The charges in this case stem from allegations

of

sexual relations between a 23-year-old

female teacher (who

is

now 25 years old) and a 14-year-old boy (who is now 16 years old), one

instance ofwhich was witnessed by the boy s 15-year-old cousin (who is now 17 years old). The

factual basis for the plea,

as

proffered by the State,

is as

follows:

On or about June 15 2004, the Defendant transported the then-14-year-old victim M.M.

m her vehicle from Hillsborough County, Florida to Ocala, Marion County, Florida. The

Defendant and the victim were previously acquainted, as the Defendant was a teacher at the

middle school M.M. had attended. Upon arriving in Ocala, the Defendant and M.M. picked

up

M.M. s then-15-year-old cousin B.B. With the Defendant s consent, B.B. drove her vehicle on

State Road 200 in Ocala, while the Defendant and M.M. engaged in sexual activity in the back of

the vehicle. B.B. was aware of the sexual activity taking place in the vehicle, and saw the sexual

activity in the rear-view mirror

of

the Defendant s vehicle. On or about June 17, 2004, the

Defendant again transported M.M. in her vehicle from Hillsborough County, Florida to Ocala,

Marion County, Florida. The Defendant and M.M. again picked

up

B.B., whereupon they drove

to Brick City Park in Ocala and parked the Defendant s vehicle. After B.B. exited the vehicle,

the Defendant and M.M. again engaged

in

sexual activity in the back

of

the vehicle. Shortly

thereafter, M.M. and B.B. disclosed these events to their mothers, who notified law enforcement.

On June 28, 2004, the Defendant was arrested and charged in Marion County with two counts

of

lewd and lascivious battery on a child and one count

of

lewd and lascivious exhibition.

The parties have set forth several arguments for this Court to consider

in

determining

whether to accept the proposed plea agreement. The State has made it clear that the victim s

family wishes the case to be concluded without a trial,

2

and the Defendant has made it clear that

she will not agree to any sentence of imprisonment. The parties assert, as their main justification

for the proposed plea agreement, that the victim does not wish to testify at trial and that it would

The Court recognizes that there are actually two minor victims in this case, M.M. and

B.B. However, the majority of the testimony and argument relates only to victim M.M.

Page 2

of


27/38

State vs. Lafave

04-2454-CF-A-Z

be detrimental to the victim to do so. The victim's family believes that he would be traumatized

by testifying at trial and receiving increased media attention. The family is also concerned that if

this case proceeds to trial their privacy will be compromised by the intense media attention this

case continues

to

receive.

The State called two witnesses at the March

8

2006 hearing: Assistant State Attorney

Michael Sinacore,

of

the Hillsborough County State Attorney's Office, and Dr. Martin Lazoritz,

a licensed psychiatrist and associate chairman

of

the University

of

Florida Department

of

Psychiatry. Mr. Sinacore testified that he only agreed to a plea without any term

of

imprisonment at the insistence of the victim's mother, who felt that her family's privacy was

being compromised by the media and that a trial would further traumatize her son. Mr. Sinacore

further testified about his negotiations with Court TV, which intended to broadcast the

Defendant's trial. The attorneys for Court TV would agree not

to

show the victim's face when

he testified, but would not agree not to show the victims' mothers when they testified and would

not agree to delay the broadcast in case the victims' names were inadvertently mentioned by one

of the 40-50 potential witnesses. Mr. Sinacore did not indicate whether

he

had interviewed the

victim M.M. regarding the incidents in question or his impressions of M.M's ability to testify

and withstand the rigors

of

cross-examination.

Dr. Lazoritz testified that he met with victim M.M. and his mother for approximately 90

minutes. Dr. Lazoritz testified that the victim

is suffering from anxiety about his relationship

with the Defendant, which has been compounded by the media coverage the case has received,

and has an adjustment disorder, meaning simply that he is responding to a stressor. Dr. Lazoritz

also testified that the victim had a very difficult time talking about things. He stated that the

victim wishes to

go

to the University ofF lorida, play basketball, and live in anonymity. He

further explained that the victim

is

afraid that

if

the case proceeded to trial he would always be

plagued by it. Dr. Lazoritz expressed his opinion that it would be detrimental to the victim's

emotional well-being to testify at trial. Dr. Lazoritz believes that if this case were concluded

without the victim having

to

testify

at

trial, he would continue to improve, but would likely

deteriorate if the case proceeded to trial.

The Court recognizes that it very well may be impossible for the State to proceed to trial

without presenting the testimony

of

the victim M.M.

n

order to establish the essential elements

of the offenses beyond a reasonable doubt, the State would be required to delve into the details of

Page 3 of


28/38

State vs. Lafave

\_

04-2454-CF-A-Z

the sexual relations between the Defendant and the alleged victim. Furthermore, the nature of

the defense raised by the Defendant would require the victim s actions to be put at issue before

the jury.

The Court also understands that the victim may be reluctant to testify at trial. Certainly,

no 16-year-old male wants to be examined and cross-examined in a public forum regarding every

minute detail of a sexual encounter, which very well may be viewed by some as entertainment.

He would not want to discuss it with his parents, doctor, counselor, victim/witness advocate, or

an attorney. In fact, this Court cannot comprehend any individual whether he is 15, 45, or 75

years old - looking forward

to

discussing such an experience in public. Most likely

no

one who

reads this order would voluntarily discuss a sexual experience that took place when he or she was

4

years old, especially if his or her partner was a former teacher. Indeed it would be strange if

one were eager

to

discuss such

an

experience. Sex may sell books, movies, and magazines, but

no one looks forward

to

discussing private sexual encounters in public.

For most witnesses, especially victims of sexual offenses, testifying is an experience they

would like

to

avoid. Rarely does one find a witness who enjoys testifying in a courtroom before

a jury and being cross-examined by attorneys. The Court does not believe that the witnesses in

this case are different from most witnesses in any other case. Moreover, the victim in this case

is

not a young child; he is now

6

years old. The effect a trial

of

this nature might have

on

young

children (less than 2 years old) therefore is not a factor

in

this case.

The Court

is

not convinced that the parties have presented sufficient justification to

accept the proposed plea agreement. The Court might have been more inclined to accept the

proposed plea agreement if the Hillsborough County charges did not exist and the Defendant was

facing charges only in Marion County.

As

it stands, the Court

is

unable

to

comprehend what is

to be gained by a plea and concurrent sentence in Marion County. Likewise, the Court might

have been more inclined to accept the proposed plea agreement had the parties presented

additional evidence. First, it certainly would have been beneficial if the State or the defense had

presented additional experts. Second, either party could have presented the testimony

of

a

victim/witness advocate. There are victim/witness advocates available in the State Attorney s

Office, the Ocala Police Department, and the Marion County Sheriffs Office. However, there

has been no indication to this Court that any victim/witness advocate has worked with the

victims or their families to prepare them for a trial in this case. Third, the investigating officers

Page 4 of6


29/38

State vs. Lafave

04-2454-CF-A-Z

who interviewed the victim could have been called

to

testify regarding their impressions

of

his

ability to give testimony, as could have assistant state attorneys Mr. Ridgway or Ms. Youmans.

The Court has reviewed the probable cause affidavit and

it

does not appear that the victim had

any difficulty describing the incidents in question to the investigating officers. Fourth, either

party could have attempted

to

take the victim's deposition to demonstrate his difficulty in

testifying. t appears that no depositions

of

either victim have been taken. Finally, the parties

could have requested the Court meet with the victim in camera as was done

by

the judge

in

Eversole

v

Superior Court 195 Cal. Rptr. 816 (Cal. Ct. App. 1983).

Moreover, with the exception of Dr. L azoritz (whose testimony is somewhat less than

convincing), neither party has presented any testimony about the victim's need for professional

counseling. When asked by the Court whether the victim M.M. needed counseling, Dr. Lazoritz

stated, [U]nfortunately, he is not the kind

ofyoung

man who is a good candidate for verbal

counseling. He

is

not a very verbal, talk-about-your-feelings kind ofkid .... I don't know that he

needs counseling right now. He needs to be able to play basketball in anonymity, and that's

helpful for him. The Court might have been convinced to accept the proposed plea agreement

if

the State had offered the victim and his family professional counseling, in an effort to prepare

them for trial, and such counseling was unsuccessful. However, that does not appear

to

be the

case. Dr. Lazoritz's meeting with the victim for 90 minutes or less seems to this Court

inadequate if the victim has in fact suffered mental damage

as

a result

of

the incidents

in

question.

Furthermore, the Court is not convinced that the State has fully investigated its options in

regards to protecting the privacy of the victim and his family if the case were to proceed to trial.

The Court recognizes that the press and the general public have a constitutional right

of

access to

criminal trials. See Globe Newspaper Co

v

Superior Court 457 U.S. 596, 603-05 (1982);

Richmond Newspapers Inc v Virginia 448 U.S. 555, 580 ( 1980). However, that right is not

absolute, and it may be appropriate

to

restrict access in order

to

safeguard the well-being of a

minor victim. See Globe Newspaper Co. 457 U.S. at 606-09; see also Waller v Georgia 467

U.S. 39, 45-48 (1984). Specifically, it very well may be appropriate

to

exclude the electronic

media during the victim's testimony. See Fla. R Jud. Admin. 2.170(a); Chavez v State 832

So.2d 730, 758-59 (Fla. 2002); State

v

Palm Beach Newspapers 395 So.2d 544 (Fla. 1981); In

rePetition o Post-Newsweek Stations 370 So.2d 764, 779 (Fla. 1979). Indeed

it

would

be

Page 5 of


30/38

State vs. Lafave

04-2454-CF-A-Z

necessary for the Court to take certain precautions to ensure that the Defendant receives her

constitutional right

to

a fair trial.

See e.g. Richmond Newspapers Inc.

448 U.S. 555;

Nebraska

Press Association

v

Stuart

427 U.S. 539, 563-65 (1976);

Sheppard

v

Maxwell

384 U.S. 333,

357-62 (1966). But the Court

is

aware that the victim does not have a constitutionally

recognized right of privacy in the context

of

a judicial proceeding, which is a public event that by

its very nature denies certain aspects

of

privacy.

In rePetition o Post-Newsweek Stations

370

So.2d at 779.

t is the opinion

of

this Court that accepting the proposed plea agreement would

undermine the credibility of this Court, and the criminal justice system as a whole, and would

erode public confidence in our schools. Accepting the proposed plea agreement would likewise

send the message that

if

enough publicity

is

generated, and the media s interest continues long

enough, and because

of

that interest the victim does not wish to testify, a defendant can avoid

an

appropriate sentence. Quite frankly, if the allegations against the Defendant are true, the agreed

upon sentence shocks the conscience of this Court. t is, therefore,

ORDERED The proposed below guidelines plea agreement is hereby rejected.

ORDERED this 21st day ofMarch, 2006 at Ocala, Marion County, Florida.

~ t ? ~ ~ r

H:AiERSTANciL:

Circuit Judge

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and accurate copy

of

the foregoing has been provided

by U.S. Mail/Inter-Office Mail this 21st day ofMarch, 2006

to

the following:

John M Fitzgibbons, Esquire

Attorney for the Defendant

Tampa Theatre Building, Suite 700

707 North Franklin Street

Tampa, Florida 33602-4441

Stacy M Youmans, Esquire

Richard

D

Ridgway, Esquire

Office of the State Attorney

(by Inter-Office Mail)

Page 6

of


31/38

i

HUNTON

& WILLIAMS LLP

l \. j

.

..)li;...

HuNToN

1

J

BRICKELL

VENUE

SUITE

2500

WILLIAMS

MIAMI, FLORIDA 33131

TEL 305· 810· 2500

FAX

305·

810· 2460

B RRY R DA V1DSON

DIRECT

DIAL.

305 • 810

•

2539

[email protected]

March

10,2014

FILE

NO:

Via Federal Express

Theodore P. Littlewood Jr., Bar Counsel

Attorney Consumer Assistance Program

The Florida

Bar

651 East Jefferson Street

Talla

Documents

Motion to Extend Time SC14-1637, Gillespie v The Florida Bar