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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.
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Petitioner’s Motion to Extend Time
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.
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Petitioner’s Motion to Extend Time
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
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Petitioner’s Motion to Extend Time
February 19, 2015
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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.
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Petitioner’s Motion to Extend Time
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:
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Petitioner’s Motion to Extend Time
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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.
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Petitioner’s Motion to Extend Time
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
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~ 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
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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
Thank you for your consideration.
Sincerely, Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481Telephone: (352) 854-7807
D
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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
Thank you for your consideration.
Sincerely, Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481Telephone: (352) 854-7807
D
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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
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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
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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.
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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
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§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.
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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.
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); 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.
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).
§ 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
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§
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
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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
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§
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
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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
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§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
8/9/2019 Motion to Extend Time SC14-1637, Gillespie v The Florida Bar
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
8/9/2019 Motion to Extend Time SC14-1637, Gillespie v The Florida Bar
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
8/9/2019 Motion to Extend Time SC14-1637, Gillespie v The Florida Bar
24/38
Tweet 1 Follow
Judge Hale Stancil
« PREVIOUS CHAPTER 1 2 3 ... 10 11 12 13 14 15 NEXT CHAPTER »
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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
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The Seduction1.
The Sting2.
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Her Defense4.
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E.1
Filing # 23964246 E-Filed 02/19/2015 02:08:40 PM
8/9/2019 Motion to Extend Time SC14-1637, Gillespie v The Florida Bar
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
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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
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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
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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
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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
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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
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HUNTON
& WILLIAMS LLP
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2500
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MIAMI, FLORIDA 33131
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305·
810· 2460
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DIRECT
DIAL.
305 • 810
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March
10,2014
FILE
NO:
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Theodore P. Littlewood Jr., Bar Counsel
Attorney Consumer Assistance Program
The Florida
Bar
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