HOA settles Trayvon death — over $1,000,000?

Homeowners association is believed to have paid more than $1 million.

“During an interview in February, Zimmerman’s attorney, Mark O’Mara, said Trayvon’s parents had made a wrongful death claim against the homeowners association. They’d tried to settle through mediation, he said, and the association or its insurer had offered $1 million but Trayvon’s parents had rejected that amount.”

 Gee, where were all those fantastic HOA attorneys to educate HOA boards as to their liabilities not only under HOA laws, but corporate, agency, and tort laws?

http://www.orlandosentinel.com/news/local/trayvon-martin/os-trayvon-martin-settlement-20130405,0,6893976.story

References:

HOA liability: respondeat superior and agents as in Trayvon case

Trayvon — Zimmerman reported to be acting for HOA

If Trayvon HOA is sued, who should share the blame?

legislative support for HOA regimes has created a dysfunctional society

“The times, they are a changin”

When state legislators allow private government HOAs to be unaccountable to state laws as required by all other government entities, then an attitude that anything goes develops. Why? Because there are no penalties to serve as a check and balance on HOA activities.  It creates a lawless attitude of, “Go for it, what do you have to lose?”   It creates a dysfunctional society.

 It is commonly known that state legislators have a blind adherence to the false belief that HOAs do no wrong, and that there is no need for HOA penalties to serve as detriments to intentional and willful violations of the laws.   State legislators continue to believe that homeowners are openly and fully informed when accepting a deed binding them to an unsigned contract; and that the HOA and its special interest attorney national organization are acting in good faith.  

State legislators continue to believe that the HOAs and their hired hands, the management firms and attorneys, will comply with both the letter and intent of state laws, rather than seeking loopholes for income producing court cases. Such dogmatic beliefs have created a dysfunctional society operating outside constitutional government under a second set of laws just for HOA subdivisions.

 And we know where this can and has led to:  financial and emotional stress and even deaths attributed to the enforcement of HOA rules uber alles (German for “above all”). The latest shocking incident, after the Trayvon Martin incident (HOA liability: respondeat superior and agents as in Trayvon case), is the incident reported in the Sun-Sentinel article, “Parking at home shouldn’t bring tow — or death.”

Ask yourself why do towing companies roam the streets towing cars in private communities without obeying the laws, or without getting a complaint from the HOA? BECAUSE they can and because the HOA really doesn’t care — its rules are being enforced by someone else. And there are no penalties against HOA boards violating their own governing documents. The HOA is the sovereign, and it can do no wrong!

 However, there is hope. An indication of a return to sanity comes from the Republican Party’s realization that its obsessive adherence to dogmatic principles of laissez-faire corporatism has been a failure. (HOAs are a prime example of corporatism in operation in America).  Republicans are beginning to think in terms of less dogma but a more principled “protecting private property,”  always a fundamental principle of this country.  It stands in opposition to socialist states operating for the benefit of the corporation and not for the rights of the people.

 State legislators should take heed. They have created a dysfunctional society with their unreasonable and irrational support of authoritarian HOA regimes.  It’s well beyond time for an awakening, enlightenment, in their views of authoritarian HOA private regimes.

HOA liability: respondeat superior and agents as in Trayvon case

Orlando attorney W. Jeff Earnshaw, Esq. of Taylor & Carls, P.A. wrote in its Blog about, What the Trayvon Martin Case Can Teach Associations.  Some excerpts from this very informative article.

The case of Trayvon Martin demonstrates how something as seemingly innocuous as labeling a member of an association as the “Captain” of the neighborhood watch can open an association to possible liability.

Understanding how this designation in the association’s newsletter could ultimately lead to liability for the association can help HOA’s and Condominium Association’s limit their own potential liability for actions of others. . . . A well-established legal concept is respondeat superior, which literally means “let the master answer”. Respondeat superior provides the basis for a principal to be held responsible for the wrongful acts of their agent when those acts are performed within the scope of the agent’s duties.

While an employer-employee is the most common principal-agent relationship, with the employer being the principal and the employee their agent, an agency relationship can exist whenever someone acts on behalf of another. . . . The third element; the principal’s control over the actions of the agent, should not be overlooked. The general concept behind respondeat superior liability is that a principal generally controls their agent’s behavior, and therefore the principal should be responsible to the public for the agent’s actions while the agent is under the employer’s control.

See also What is an HOA’s duty of care liability to its members and to all others?

Insurer denies HOA coverage in Trayvon death

This position by the insurer points out that the HOA board is NOT 100% protected for wrongful acts.  Especially for those that are grossly negligent or intentional acts.

Homeowners should step outside the HOA attorney greated box that implies that the HOA can do no wrong, and remember that laws other than those HOA or Condo Acts  also apply to HOAs:  Restatement of Servitudes, tort law, and corporation law.

From the COURTHOUSE NEWS SERVICE Aug. 6, 2012

 

ORLANDO (CN) – Traveler’s Insurance sued Trayvon Martin’s mother and The Retreat at Twin Lakes Homeowners’ Association, where her son was killed, claiming it has no responsibility to defend the HOA or cover the teenager’s death.

Travelers Casualty and Surety Company of America sued The Retreat at Twin Lakes Homeowners’ Association and Sybrina Fulton, as representative of her son’s estate, in Federal Court.

The Retreat at Twin Lakes’ Neighborhood Watch captain George Zimmerman shot Trayvon Martin to death on Feb. 26. The shooting set off a national furor, as police initially let Martin’s killer, George Zimmerman, go free after questioning him. Martin was black; Zimmerman is not.

Travelers claims that on March 30, it issued the HOA a “claims-made, nonprofit management and organization liability insurance policy.

Fulton then sought monetary damages against the HOA’s policy with Travelers for her son’s death.

Travelers claims it is not liable because of the policy’s “wrongful act” exclusion.

Travelers claims the exclusion states:

“‘The insurer shall not liable to make any payment for loss in connection with any claim made against any of its insureds: 1) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving bodily injury, sickness, mental anguish, emotional distress, disease or death of a person, provided that this exclusion shall not apply to allegations of mental anguish or emotional distress if an only to the extent that such allegations are made as part of a claim for wrongful employment practices.’

“Travelers is in doubt of its rights under the policy and, by this petition, seeks a declaration of its rights and obligations with respect to the claim and demand made by Fulton upon Travelers and The Retreat at Twin Lakes as a result of the fatal shooting or Martin, and a finding by the court that under the above-referenced policy of insurance Travelers has no duty to indemnify or defend The Retreat at Twin Lakes in connection with the Fulton claim because coverage is precluded by the above exclusion.”

Zimmerman was rereleased on $1 million bond in August his first bond of $150,000 was revoked.

State Judge Kenneth Lester ordered Zimmerman back to jail after finding that Zimmerman and his wife Shellie misled the court about how much money they had.

Shellie Zimmerman was arrested and charged with perjury days later, and released on a $1,000 bond. She was to be arraigned July 31 but her attorney Kelly Sims filed a written not guilty plea.

George Zimmerman has pleaded not guilty to second-degree murder and claimed self-defense under Florida’s so-called “stand your ground law.”

Judge Lester last week refused to recuse himself after Zimmerman’s attorney Mark O’Mara asked him to. O’Mara accused Lest of making “gratuitous, disparaging remarks” when he set Zimmerman’s second bond, according to wire reports. Lester denied the motion as “legally insufficient.”

Insurer Says It Should Not Have to Pay for Trayvon Martin’s Death

HOA Gestapo tactics — the slippery slope steepens

In California there is the report of a midnight raid on HOA members to forcibly evict them. The Courthouse News Series reports (The Foreclosure From Hell) that

“Nine condo residents claim Taser-toting private security guards burst into their homes at 3 a.m. and assaulted them, forcing them into the street in their underwear, in a foreclosure the residents had never been informed of.” 

The security organization for the HOA and the HOA are being sued.  The complaint alleges, among other things, that

“During this approximate two-hour ordeal, the armed men threatened arrest and incarceration, menaced the plaintiffs with weapons, engaged in intimidation, positioning themselves immediately in front of and/or behind the plaintiffs, glaring at them menacingly and invading the plaintiffs’ space.” 

The plaintiffs seek damages for trespass, extortion, assault and battery, false imprisonment, invasion of privacy, conversion and intentional infliction of emotional distress.

In the highly public Travon murder case in Florida questions of HOA negligence are being raised.   In Arizona, for the 5th year, a bill that  re-asserts that public streets within HOA subdivision territories are regulated by the local government and not the HOA was again defeated.   In Illinois, however, the court did put a stop to HOA security people stopping and detaining people on the roads.

The question before us is:  what are the factors, the causes that lead HOA boards to act in such an uppity, defiant manner against their members and the public, as if they were indeed independent principalities?  The simple answer is,  because they can!  Is it the culture within the HOA that is too similar to the experimental conditions of the Milgram and Stanford Prison experiments? (See Why do people harm others in HOAs?)

Is it the public policy that the HOA must survive at the expense of individual rights and freedoms, with members’ losing the privileges and immunities guaranteed to all citizens?  Is it the pro-HOA laws that do not hold the HOA accountable to the state, that presumes that the HOA can do no wrong?  There are no penalties against HOA law-breakers, but there are plenty of state supported penalties that make HOA attorneys rich and force hardship and the loss of one’s home for trivial fines.

With this sentiment, this bias in our culture and society, HOAs have no restraint on running amuck, and on intentionally running amuck as witnessed here with the Gestapo raid.   I wrote about this dangerous slippery slope path in The public policy of the states with respect to HOAs.  In Legislative protection of HOAs: replacing US organic law with HOA organic law I wrote about the disappearance of the social contract and a return to a state of nature, to anarchy.

It is not too difficult to realize that this country has been on a regressive, slippery slope path to a governmental system very much like the rejected Articles of Confederation of some 225 years . . . . And it appears, with the rhetoric abounding here and elsewhere on other constitutional issues, we are rejecting the social contract and returning to a state of nature.

 Yes, each day, little by little, more and more such acts that were once unthinkable occur as this country speed us along the slippery slope to disaster.  I’m waiting for the knock on the door.  I have my papers ready.