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Olive Garden Servers might be getting shorted on tips

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 When we go to a restaurant and pay for our meal with a credit or debit card, the routine is pretty fixed: the server takes the card, carries it over to the nearest Point of Sale machine, slides it to apply authorization to our specific check, and brings the card back to the table with a slip that we can use to write in the amount that we wish to tip. From there, the server collects the slip after we’ve left, and then manually inputs it into the computer either immediately or at the end of their shift.

In some restaurants, however, that routine is changing, according to an article written by Harley Peterson from the Business Insider. That change is coming with some important challenges, as we saw recently in an Olive Garden restaurant in New York Small computers or tablets are popping up at tables to do anything from allowing the guest to peruse the menu, to order, or even to pay and tip the server.

A guest did just that while dining at the Olive Garden in Victor, New York. The guest input into the tablet that he wished to leave the server a 20% tip on a $40 check. That would be about an $8 tip, possibly a little less depending on tax (the percentage amount is typically calculated using the pre-tax total). In this particular case, the tablet computed the tip to be $5.77, well below what it should have been, even with a variation for tax.

The server has said that the issue has been ongoing, affecting him to his coworkers since the tablets were installed five weeks ago. Olive Garden, and its parent company, Orlando-based Darden Restaurants, claim that the error was caused by a glitch in the tablet software. The chain also claims that it is only affecting about half of Olive Garden restaurants, and even then, only about one percent of transactions are affected.

We cannot assume what is at play here, it is entirely possible that the recurring error is a glitch in an otherwise easily programmed software. However, when dining in a restaurant with this technology, it is important to review all the information of your transaction and make sure that the tip that is being logged is the tip that we input into the tablet.

Servers and bartenders that have encountered this problem may have a different take on the cause. Tip-skimming is not a new technique used by employers to pocket more money than they should, often at the expense of the servers and bartenders whose tipped wage is already below the state minimum. Tip-skimming is just another reason to keep a watchful eye out on the technology we use to pay our servers.

If you are a Florida server or bartender, and you’ve had an experience similar to what happened in the New York Olive Garden, and you suspect it might not have simply been “a glitch,” we encourage you to give us a call.

This blog was inspired by the article "Olive Garden Servers are getting shorted on tips- and it's the restauran's fault" written by Hayley Peterson on August 31, 2015. http://finance.yahoo.com/news/olive-garden-servers-getting-shorted-162716202.html

Did You Know That Today Is National Dog Day?

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If you love your dogs like we do here at Cohen Law Group (not even joking, there’s usually at least one dog in our office every day), you might feel like every day is National Dog Day. But alas, today, August 26th is that day, but what does that mean?

Colleen Paige, one of America’s foremost pet and family lifestyle expert started National Dog Day eleven years ago, and it continues today with a simple premise: awareness.

National Dog day was started to bring public awareness and appreciation to the love and affection brought to us by our family dogs or our hardworking service dogs, but also to bring awareness to the sheer number of dogs that need to be adopted from a shelter or rescued from the streets. The Humane Society of the United States estimates that 6-8 million dogs and cats are housed in shelters each year, and that at least half of that number (3-4 million) are put to sleep yearly. Just in our area alone, the Pet alliance of Greater Orlando anticipates that more than 10,000 homeless dogs and cats will be sheltered by their staff this year.

The goal of National Dog Day, then, is to convince people to get out there and adopt from their local shelters. Ms. Paige, however warns about adopting a dog just for the sake of adopting a dog. Many dogs are in shelters because they were unwanted, she says. Maybe they were bought as a Christmas present for a child that ultimately couldn’t handle the responsibility of taking care of them, or people didn’t know how to handle the responsibilities that come with a certain breed, like shedding or health issues.

We should take this opportunity to seriously consider whether we can take on the responsibility, because it’s hard to argue that the love and affection we will get from our pets isn’t worth that little bit of effort. If you cannot take on that responsibility, Ms. Paige recommends that people take this occasion to send a $5 donation towards their local shelter or Humane Society in recognition of the work that they do.

 

Please visit your Local Humane Society and make a difference today

THE INFAMOUS “SWORN PROOF OF LOSS”: IS IT A TOOL OR TACTIC?

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We have fought off attempts by the insurance industry to change nearly a century of law upholding the validity of a post-loss assignment of benefits, and multiple attempts by the insurance industry to pass horrible legislation designed to help them profit at the peril of their insureds. The right of homeowners to use post-loss assignments and the respective rights of assignee-service providers have been reaffirmed in every Florida District Court of Appeal. Unsurprisingly, the insurance industry refuses to acknowledge that assignments actually limit the insurer’s total liability due to the swift and effective work of great restoration companies.

As good as it feels to finally have many of the insurance industry’s tactics exposed for what they are; the war is not over. The battles will now shift from challenges to assignments to the facts of the claim. One tactic favored by State Farm, for instance, is the defense of the homeowner not providing a Sworn Proof of Loss (“SPOL”) as a precondition to coverage and receiving claim benefits. This is very dangerous because only the homeowner-insured can submit a SPOL as part of the duties in the insurance policy that must be performed to protect the validity of the claim and your ability to secure fair payment from the insurance company. This is not a “maybe,” it is a definite and absolute defense. When service providers have an assignment of benefits, they step into the shoes of the homeowner with all the rights they possess, but subject to all defenses the insurance company can raise in its attempt to thwart recovery of benefits. Contractors and service providers must be aware of the ramifications of the SPOL and how it can affect their ability to be paid from insurance benefits. This is especially so when the insurance company is State Farm.

There are two alternative scenarios:

In the first scenario, the insurance company issues a written denial of coverage pursuant to a loss exclusion under the policy, of the usual suspect denials, like the all too familiar: “repeated and long term seepage and leakage, wear and tear, deterioration.” In the denial of coverage scenario, the insurance company waives any claim that the homeowner needed to continue to perform any further “Duties After Loss,” such as submitting to an “Examination Under Oath” or submitting a “Sworn Proof of Loss.” It would be futile to force a homeowner to comply with duties that will aid the insurance company’s investigation of a claim when the insurance company has already made its decision – to denial of coverage and payment. The reasoning is that the insurance company has already investigated enough to decide it will not make payment, so it makes no sense for the homeowner to continue to perform “Duties After Loss” just to go through the motions. Nevertheless, insurance companies deny coverage solely for the reason of loss exclusions under the policy and try to supplant a “Duty After Loss” basis for ridding of a lawsuit. Florida District Courts of Appeal and even the Florida Supreme Court have been swift to strike these arguments down.

The second scenario is where the insurance company extends coverage, but uses the insured’s failure to provide a Sworn Proof of Loss and/or Examination Under Oath to cause a forfeiture of coverage on a technicality. In Hunt v. State Farm Florida Insurance Company, 145 So. 3d 210 (Fla. 4th DCA 2014) the court granted summary judgment in favor of State Farm due to the homeowner’s failure to provide a Sworn Proof of Loss and the homeowner’s inability to prove that State Farm suffered prejudice in their ability to investigate the claim. It is questionable whether the homeowner presented any evidence of prejudice. This is where there is serious potential for future trouble and bad law.

The purpose of a homeowner’s “Duties After Loss” section in the insurance policy is to allow for the insurance company to investigate a reported loss using “reasonably necessary” means in order to make a coverage and payment decision on the claim within 90 days of receiving notice of the loss from the homeowner. Fla. Stat. § 627.70131(3) & (5)(a). It logically follows that the insurance company would provide the Sworn Proof of Loss form to the homeowner prior to triggering an insured’s duty to perform that condition, however the law is not that clear. A court could interpret the Hunt case to require that a homeowner submit a Sworn Proof of Loss without it ever having been requested by the insurance company and without the homeowner having even been provided with the standardized form by the insurance company.

What can service providers with an assignment of benefits do when the proof of loss duty remains with the homeowner? Keep in good communication with homeowners and inquire if they are doing what the insurance company is asking them to do, like provide a proof of loss, to protect their claim – while steering clear of giving any claim advice or taking any action that could be considered unlicensed public adjusting.

It will be up to a jury to decide whether an insurance company was really prejudiced by not receiving a Sworn Proof of Loss and a gamble getting past the decision of a judge. Follow best practices like maintaining good communication with homeowners, providing great customer service, and ensuring that restoration jobs are thoroughly documented with reports and photographs. These are the best ways to protect your right to proper payment for your work, and the best ways to help Cohen Law Group help you with your case.  

MOTOR VEHICLE REPAIR ACT AND GLASS SHOPS

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Many shops who work primarily in windshield repair for automobiles may not be aware that they qualify as a motor vehicle repair shop. Fla. Stat. 559.903(6). Specifically states that any shop doing “glass work” qualifies as a motor vehicle repair shop and is subject to the consumer protection laws pertaining to motor vehicle repair shops. The relevant statutes regarding the Motor Vehicle Repair Act are Fla. Stat. 559.901 – 559.9221. The first thing a shop working in windshield repair must do is register with the Department of Agriculture and Consumer Services as set out in Fla. Stat. 559.904(1). That statute lays out everything an applicant needs to do to register with the Department of Agriculture and Consumer Services. Another very important aspect of this law to be familiar with is Fla. Stat. 559.905 regarding the requirement of the shop to give a written estimate to the consumer if the work should exceed $100.00 prior to the work being commenced. The shop does not need to provide a written estimate if the consumer waives their right to receive the written estimate. However, this waiver must be in writing. Fortunately Fla. Stat. 559.905(2) explicitly lays out how this waiver can be obtained. This article is not an exhaustive list of everything a windshield repair shop must do under the Act. It is important to look over these statutes to make sure you are in compliance with the law.

What is especially important about knowing these statutes is how insurance companies are using them as a way to deny coverage or reject a claim for windshield repair/replacement for the company’s alleged failure to comply with the Motor Vehicle Repair Act. It is this author’s opinion that the failure to comply with these laws does not give the insurance companies the right to reject a claim or deny payment. Generally speaking, the insurance company will not actually put this as a reason for not paying or denying the claim, but using it as a defense once a lawsuit is filed against them. After they assert these failure to comply with Motor Vehicle Repair Act defenses, they will then request that the shop to provide them with any and all documentation to prove their compliance. My main belief is that these insurance companies are employing this strategy as a bullying tactic. What they are essentially doing is conducting an audit of your company, which is beyond the scope of the issues in the lawsuit.

As important as it is to know what is in the Motor Vehicle Repair Act, it is also important to know what is NOT in it. The act is located under the consumer protection section of the Florida Statutes. These laws have been put in place to protect the consumer, and not the insurance company. Nor does it state in the relevant statutes that compliance with these laws is a condition precedent to a lawsuit. In other words, the Florida Legislature has NOT set forth that a windshield repair shop, or any motor vehicle shop, must comply with this statute before filing a lawsuit or even maintaining a lawsuit. Take a look at your auto insurance policy, or your client’s policy and chances are you will not see any provision that requires the insured to use a shop that is compliant with the Motor Vehicle Repair Act. Most likely there is nothing under the “general duties” or “condition precedent” areas of the policy requiring an insured make sure that the shop they are using is in compliance with any Motor Vehicle Repair Act laws.

Although it is prudent (and a requirement) to be following these laws, do not let an insurance company scare you in to not accepting the full amount of your invoices for the work you did because they want to audit your company. The insurance companies already have time, money and resources on their side, let’s not give them another bullet in their chamber.

Chris Martin

Attornay at Law

 

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