For more information on Automobile Accidents Click Here: http://www.brevardlawyer.com/html/auto-accidents.html

For more information on Automobile Accidents Click Here: http://www.brevardlawyer.com/html/auto-accidents.html

For more information on Automobile Accidents Click Here: http://www.brevardlawyer.com/html/auto-accidents.html

 What An “As Is” Clause Does Not Do

An “as is” clause in a contract of sale is not an exculpatory clause. Sellers who have sold a product “as is” typically assert that disclaimer as a defense against all warranty (or contract) liability. In litigation, some sellers also assert “as is” disclaimers as a defense against tort liability as well. Given that warranties are contracts, without more, an “as is” clause should not be interpreted as affecting tort liability in any way. These defenses are based on an incorrect assumption that an “as is” clause can be treated as a type of exculpatory clause.

An exculpatory clause, as opposed to an “as is” clause in a sales agreement, if properly written and executed, expressly relieves one of the contracting parties of tort liability. However, the law in most states, including Florida, strongly disfavors exculpatory clauses. This is primarily because their effect is to relieve one party of the obligation to use due care and to shift the risk of injury to the contracting party who is often the most ill-equipped to prevent the loss or bear the risk of loss. Such clauses are strictly construed against the party seeking to be relieved of liability and therefore, a bare bones “as is” clause should never be construed as affecting tort liability. The law regarding exculpatory clauses requires that an exculpatory clause must be so clear and understandable that “an ordinary and knowledgeable person will know what he is contracting away”. Further, an exculpatory clause in a sales contract that is intended to relieve one of liability for its own negligence must expressly state that it releases a seller from liability for its own negligence. Clearly, an “as is” clause is not an exculpatory clause.

What An “As Is” Clause Does Do

A typical “as is” clause in a vehicle sales agreement may say nothing more than the words “as is”, or on the other hand, it may include extensive additional language disclaiming liability for specific warranties or for any oral statements made during sales negotiations. It is also typical to require the buyer to acknowledge that they are “knowingly” purchasing the vehicle “as is.”

Despite common arguments to the contrary, the law in Florida is clear that both express and implied warranties can be applied to sales of used products. Further, in order to disclaim such warranties, a valid disclaimer must be made. In addition to being so clear and understandable that “an ordinary and knowledgeable person will know what he is contracting away”, a valid disclaimer must meet specific statutory requirements to effectively eliminate specific warranties. For example, the Uniform Commercial Code provides that, in order to exclude an implied warranty of merchantability, writing must be conspicuous and must mention merchantability. To exclude an implied warranty of fitness, the exclusion must be in writing and conspicuous. If a valid disclaimer has been made, it will generally be enforceable and effective in relieving the seller of liability for repairing or replacing the product, as well as for incidental and consequential damages.

“As Is” Clauses Do Not Relieve a Seller of Common Law Duties to Warn or Inspect

Despite the general enforceability of valid “as is” sales agreements, these agreements are limited in their reach. For example, even if an “as is” agreement is effective to relieve a seller of any duty to repair or replace a defective vehicle, if that seller would otherwise be liable under applicable case law for failing to properly inspect a vehicle, or to warn of dangerous conditions in the vehicle, an “as is” clause cannot relieve them of that responsibility.

Florida case law supports the argument that sellers of used products have no duty to discover or warn of latent defects. This authority is often used to support the argument that a seller of used vehicles has no duty whatsoever to inspect those vehicles prior to sale. There is no clear Florida authority to support such a blanket “no duty to inspect used vehicles” argument. Florida’s Fifth District Court of Appeals had occasion to address the duty to inspect used vehicles in Masker v. Smith and declined to rule one way or the other. The court in that case stated that, “[w]hatever may be the duty of a used car dealer to inspect a vehicle prior to sale for defects which could or might be discovered by reasonable and customary inspection, a point not before us and therefore one which we do not decide, we are not aware of any duty on such dealer to discover latent defects which by their very nature could not be discovered by a reasonable and customary inspection.^” Based on this language, it is at least arguable that sellers of used vehicles have a duty to perform “usual and customary” inspections.

Further, even if used vehicle dealers did not have a legal duty to perform inspections of used vehicles prior to sale, as a practical matter, most dealers actually do perform an inspection of some sort before taking a vehicle into their inventory. More often than not, the dealer will even charge a fee for cleanings and inspection. Indeed, it would be impractical for dealers to purchase used vehicles without first performing some type of inspection, because they must have some basis on which to value the vehicle prior to purchasing it. Even obtaining a “Blue Book” type value requires some inspection of the condition of the vehicle. Therefore, in most cases, a dealer will have performed an inspection of some sort, and if such an inspection reveals defects, those defects then become known defects that the used vehicle seller should have a duty to disclose. Likewise, if the seller becomes aware of defects through means other than a “usual and customary” inspection, such as through interactions with the prior owner of the vehicle, that seller has a duty to warn potential buyers of such known defects.

The duty to warn of defects is different depending on whether the defects are patent defects or latent defects. The Florida Third District Court of Appeals has held that a duty to warn of latent defects may arise in situations where the seller had no reason to expect the buyer would discover or realize the danger involved. In Alverez v. E&A Product Company, the defendant brought its commercial truck to plaintiffs service center to have the tire repaired. The tire was repaired, but exploded while the mechanic was mounting it on the rim, causing injuries. The injured mechanic sued the owner of the vehicle. In discussing the duty to warn of patent and latent defects, the court in Alverez indicated that the owner of the vehicle would have a duty to warn the plaintiff of latent defects in the tire, if the owner had no reason to expect that the plaintiff would discover the condition of the tire and realize the danger involved. With respect to patent defects, the Court in Alverez stated that it was not necessary for the defendant to warn the Plaintiff of patent defects, defined by the court as a condition that a “mere casual looking over will disclose” unless tw-1 the defendant had special experience or expertise, knew the condition of the tire was dangerous and had no reason to believe the Plaintiff had special experience or expertise that would have enabled her to perceive the danger. Thus, there is not a hard and fast rule that sellers of used vehicles have no duty to warn buyers of either latent or patent defects.

In some cases, a vehicle or even an individual part on a vehicle may haveboth latent and patent defects that must be evaluated separately. For example, a tire may have latent defects such as over aged rubber, that could only be detected by someone who had the specialized knowledge to interpret the Department of Transportation numbers on the in order to identify dates of manufacture. The very same tire may have patent defects such as an improper repair, a bubble in the sidewall or accelerated wear in the tread evidencing an existing separation.

In any given case, regardless of whether a vehicle or its components contain latent or patent defects, a jury might reasonably conclude that a used vehicle dealer possessed specialized knowledge and experience the plaintiff did not have, or that the dealer knew the plaintiff had no reason to know of dangers known to the dealer. In that case, the dealer may be responsible for warning the buyer of both patent and latent defects, and this duty should not be affected by any disclaimers that may have been made. Further, a reasonable jury might conclude, based on the facts of the case, that a seller had examined the vehicle or had in some other manner gained actual knowledge of latent or patent defects and therefore created a duty to warn the buyer of the defects, regardless of whether disclaimers had been made. A jury could find that the seller had no reason to believe the buyer had special experience or expertise that would enable them to perceive the dangers caused by the patent or latent defect in the vehicle. A jury could conclude that the seller warned the buyer of the defect, but that the warning was insufficient to protect the buyer.

Affirmative defenses relating to disclaimers are often raised in the summary judgment context. However, whether or not the parties to a contract had the same understanding as to what was meant by “as is” is generally a question of fact for the jury. In interpreting an “as is” clause in a real estate contract, the Second District Court of Appeals held that this disclaimer was relevant to the issue of duty of care to the buyers.” The effect of an “as is” clause in the context of an action for negligence “is a question of fact subject to the jury’s determination of what was reasonable under the circumstances.”

Conclusion

While a valid “as is” clause may be effective to disclaim liability for repair or replacement of a vehicle, it should have no impact on tort liability. Further, “as is”, or similar contract language should not be interpreted as affecting any existing obligation of used vehicle sellers, to inspect or warn of latent, patent or otherwise known defects.

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According to documents released by the National Highway Traffic Safety Administration, the friction material on the rear brake pads may detach from the backing plate, resulting in a drop in rear braking efficiency and increased stopping distance.

The problem affects a particular batch of rear brake pads from supplier Federale-Mogul. Internal testing by both Ducati and Brembo determined the problem is with the adhesive used to attach the friction material to the backing plate of the affected brake pads. The problem

Authorized Ducati dealers will inspect rear brake pads of the recalled units and, if they are identified as being from the faulty batch, replace them at no cost to the consumer. The recall campaign affects 283 units.

For more information on Motorcycles Click Here:  http://www.brevardlawyer.com/html/motorcycle-accidents.html

For FLORIDA TODAY

MELBOURNE — His years at Florida Institute of Technology have been quite the ride for Wade Dauberman: Saturday morning, he graduated with a Bachelor of Science degree in astrobiology, the first degree of its kind at FIT and the country.

When he returns to the university to pursue a doctorate in biological sciences, it will be after he takes a ride of an entirely different sort: 4,700 miles crosscountry, to raise funds for the Scleroderma Foundation, which fights and researches the autoimmune disease that took the life of his father two years ago.

It will begin at 8 a.m. today at the university, proceed up the East Coast to Washington, where he has supporters following an internship at the Goddard Space Flight Center; and then to his hometown, Turbotville, Pa. There, festivities have been organized to welcome the favorite son and contribute to his cause.

“Basically, the whole town should be there,” he says with a laugh. “It’s a small town.”

From Turbotville, he will head west to Michigan, where, in Ann Arbor, he will visit the University of Michigan, which has one of the world’s primary centers of scleroderma research; to Michigan State University, where he has friends; and to Lambeau Field in Green Bay, Wis., “because it sounded like a good thing to do. My roommate is a huge Packers fan.”

He expects to make 80 miles a day across the northern states, finishing in late summer at the Pacific coast of Washington, having seen Mount Rushmore and Yellowstone National Park.

“The challenging part is the Rocky Mountains. It’s just brutal,” he said. “There are so many hills, and I’m carrying a lot of extra weight on my bike. I’ll have about 40 extra pounds of baggage with my tent, sleeping bag and bike tools. But, really, the hardest part is going to be the mental and physical toll of riding alone.”

So it will be, but Dauberman is not one to shy away from a challenge. A personal trainer and cycling instructor at FIT, he took up the bicycle while rehabilitating after knee surgery, following an injury suffered while playing soccer and quickly grew to love it.

The driver, however, is what befell his father.

Having gone undiagnosed or wrongly diagnosed for years, James Dauberman’s symptoms — skin problems, swelling, hardening of organs, eye problems, infections — finally were determined to be caused by scleroderma in 2008, when he was 58 years old. He died in 2010.

“It was not found soon enough and doctors did not know the correct way to fight it,” his son said. “I feel as though his death never had to happen and could have been avoided with the right treatment. My mom had to fight to get them to start a certain treatment, and by the time they allowed it, it was too late. After countless surgeries, he ended up contracting an infection and could not fight it off. I do not know all the details exactly, because I was at school in Florida while most of this was going on back home in Pennsylvania. However, I did get to spend my last summer at home with him and I will cherish that forever.”

He is determined that others need not go through what his father did and wants the world to know about scleroderma, which affects more than 300,000 Americans.

“I do not want to see this happen to other individuals and will do everything I can to help fight it,” he said.

He hopes to raise $4,700, a dollar per mile, during his trip, and it is more than likely he will do so before he ever takes off in earnest, already having raised $2,400, with more expected at his departure, where representatives of the university and Scleroderma Foundation will be present, and at that fundraising event in his hometown.

“Maybe I should go for $2 per mile,” he joked.

He confessed that his mother, Diana Dauberman “is worried” about his long, solo voyage during what he called “the last summer I will have free in a long time.”

Those who seek a cure for the condition that killed James Dauberman consider his son a hero.

“We are honored to team up with Wade as he leaves on this remarkable journey to honor his father’s legacy. Not only that, his trip will raise much-needed awareness about scleroderma. This trip is a message of hope and a reminder to everyone with a connection to scleroderma that there are others battling to find a cure,” said Robert J. Riggs, chief executive officer of the Scleroderma Foundation.

And Dauberman will have more remarkable journeys, should all go his way.

His doctorate will be in biological sciences, and to take it, he will study the effects of space travel on astronauts, whose ranks he would love to join.

“If they accepted me to be an astronaut, I would say, ‘fantastic,’ ” he said In the meanwhile, he pedals forward to the Northwest and, hopefully, answers to questions about a killer.

“I want to help others get a diagnosis faster and have a better chance,” he said. “You can’t beat scleroderma entirely but you can break it down so it doesn’t affect your life as much. That’s what I want.”

For more information regarding Automobile Accidents Click Here: http://www.brevardlawyer.com/html/auto-accidents.html

Allstate Insurance Co., which worked with local officials to determine which intersections pose the greatest threats to motorcycles, announced the signs this week. The company says there are plans to install them in more than 30 other U.S. cities this year.

In Georgia, Allstate officials say the motorcycle warning signs will also be installed at Marietta Parkway and Whitlock Avenue in Marietta; and at Athens Highway and Grayson Parkway in Snellville

For more information on Motorcycle Click Here:  http://www.brevardlawyer.com/html/motorcycle-accidents.html

Choosing the minimum amount of coverage your state requires can save you a few dollars every month, but it can’t protect your financial security in the long run. If the state minimum for Bodily Injury Liability is $15,000, you should have at least $100,000. If your state requires you to have Liability coverage of $30,000 per accident, have at least $300,000. If the state minimum for Property Damage Liability is $5000, have at least $50,000. To protect yourself against Uninsured/Underinsured Motorists, you should have a minimum of $100,000 coverage per person, and $300,000 per occurrence—even if your state doesn’t require it.

Find out which options you can choose, and think about the coverage options that will best protect you, your passengers and your family. You can make policy updates at any time. Just don’t wait until after you’ve been in an accident! Then, it’s too late.

There are a couple types of coverage you may want to consider adding to your existing policy. The first is Bodily Injury Liability, which will cover any claims against you if you are found legally responsible for causing someone to be injured. The second is Uninsured/Underinsured Motorist Coverage, which will protect you if you’re involved in an accident with a financially irresponsible motorist.

Look into “stacking” your motorcycle insurance on existing coverage. If possible, you should have your motorcycle insurance with the same company and on the same policy as the other vehicles in your household; then you can request stacking. For example, if you have two vehicles on the same policy, each with Uninsured/Underinsured Motorist Coverage of $100,000/$300,000, you can stack them and have $200,000/$600,000 of available coverage.

When talking to an agent, ask questions: What are my coverage options? What are the stipulations and exceptions for each type of coverage? Can I include the vehicles in my household on the same policy as my motorcycle? Am I eligible for stacking? What are the benefits for choosing insurance through your agency? In what circumstances would my rates increase? How can I contact you? Does the agency have emergency numbers to use if I’m in an accident? Find someone who responds quickly to your questions and is up front about coverage options. Word-of-mouth is the best form of advertising, so get recommendations from friends and family.

It’s impossible to completely eliminate your chances of being in an accident. Many drivers don’t exercise as much caution around motorcyclists as they should. An animal could run out in front of you. A drunk driver could drift into your lane. But by having adequate motorcycle insurance coverage, you’ll know that you’re being proactive in protecting your legal rights and your financial security.

We encourage you to take a few minutes to review your insurance policy. Having adequate coverage will help protect your legal rights and the rights of your passenger if you’re ever involved in an accident.

* Research by Edgar Snyder, Esq.

If you have been involved in a motorcycle accident, you can benefit from the experience and knowledge of the 

Brevard County motorcycle accident lawyer http://www.brevardlawyer.com/html/trucking-accidents.h\\hich\\af0\\dbch\\af31505\\loch\\f0 tmlat Charpentier Law Firm, P.A.Brevard County personal injury attorneys at Charpentier Law Firm, P.A., have the experience and resources to handle any type of motorcycle accident case, no matter how complex the circumstances. Contact our practice for a case review.

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