Newsletter - Spring 2012

 

This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call today. The information in this newsletter is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.

Many people who are injured don’t talk to a lawyer right away about obtaining compensation. Sometimes they’re not sure how badly they’re hurt, or what the long-term consequences of their injury will be. Sometimes they believe (mistakenly) that they can’t be recompensed for their medical bills, lost wages or pain and suffering. Sometimes they’re just scared of the legal system, or so busy dealing with the injury itself that they put off pursuing their rights.

But that’s a problem, because lawsuits are subject to a “statute of limitations” – a period of time in which a suit must be filed, after which you lose all your rights.

The time limit for injury victims is very short – often only a few years. The limit is usually much shorter for injury cases than it is for lawsuits over a broken contract or a real estate deal.

Keep in mind that a lawsuit has to be filed within that brief window – which means not only that an injury victim has to talk with a lawyer, but that the lawyer has to investigate the case, interview witnesses, research the factual and legal issues, determine everyone who may be legally at fault, etc., before the suit can be filed.

Certain types of injury lawsuits have even shorter deadlines. This is often the case with lawsuits for medical malpractice, lawsuits for libel or slander, lawsuits against a local government (such as for a slip-and-fall on city property, or an accident resulting from poor road maintenance), or a lawsuit for job discrimination.

(On the other hand, the time limit for injuries to children often doesn’t begin to run until the child turns 18 or 21. So if you know of a young person who was injured as a child, you might want to speak with a lawyer even if the accident occurred many years ago.)

 

The time limit in which injury victims must bring a lawsuit is often very short – and much less than for a claim over a broken contract or a real estate deal.

Usually, the time limit for filing a lawsuit begins to run at the time the injury occurs. It’s usually obvious when that is, but not always, which is another good reason to speak with an attorney as soon as possible.

For instance, a doctor in Oklahoma claimed she developed multiple sclerosis as a result of problems with a series of Hepatitis-B vaccinations. In her particular case, the statute of limitations was three years. But a court determined that the three-year clock started ticking as soon as the doctor had her first “medically recognized symptom” of the disease. Because the doctor waited until the disease had progressed before she looked into seeking compensation, she missed the deadline and wasn’t able to recover anything for her harm.

On the other hand, sometimes people are allowed to sue even though an injury occurred a long time ago. There is often a rule that says the time limit doesn’t start running until an injury victim knows who is responsible for the harm, or at least until the victim should have been able to figure out who was responsible.

For instance, a woman in Illinois had shoulder surgery in 2001, and afterward she suffered severe pain and loss of motion. At first she thought it was her surgeon’s fault. It wasn’t until 2008 that experts determined the problem was caused by a defect in a pain pump that was installed in her shoulder during the surgery.

The woman then sued the manufacturer of the pump. Although the suit was brought many years after the injury, a court said it was okay because the woman couldn’t have reasonably determined who was responsible for the harm until long after she was injured.

Can-workers-be-punished-for

A lot of companies assume it’s okay to fire or discipline employees who complain about their jobs on Facebook or other social media sites. But in some cases, disciplining an employee for a Facebook rant could violate federal labor law, and the employee might be able to file a complaint with the National Labor Relations Board…even if he or she doesn’t belong to a union.

In the past year, more than 100 complaints have been brought before the NLRB over “Facebook firings.” In about half the cases it reviewed, the NLRB issued a civil complaint.

In one of the first cases, a paramedic was fired after she called her supervisor a “scumbag” and a “17” (code for a psychiatric patient) on Facebook. The ambulance company ended up settling the complaint with the government and agreeing to revise its Internet policy.

Federal law makes it illegal for companies to discipline workers for “protected concerted activity.” That means that workers have a right to discuss their conditions of employment with each other, try to speak on behalf of other workers about workplace conditions, and attempt to improve things for other workers.

If a Facebook rant falls into any of those categories, it may be protected.

For instance, the paramedic was unhappy about being reprimanded earlier for a customer complaint, and made the “scumbag” comment during an online discussion with other employees. The NLRB decided that discussing a supervisor’s actions with co-workers was “protected activity.”

As a general rule, as long as workers are commenting on workplace issues with each other or hoping to improve work conditions generally, they can even call supervisors names or bad-mouth the company in certain ways – although they can’t make verbal or physical threats.

On the other hand, if workers are just griping to their friends outside of work about something that only affects them personally, and they aren’t trying to improve general conditions or speak for other employees, they aren’t protected.

For example, a BMW salesman in Chicago was fired after he made two sarcastic posts on Facebook. One mocked his employer for serving hot dogs and bottled water at a sales event for luxury cars. Another showed a picture of a customer’s 13-year-old son driving an SUV into a pond.

The result? A judge found that the hot-dog post was protected (because other employees were also complaining online about the sales event, which could impact their earnings). But the salesman could be fired for the pond photo because it had nothing to do with his working conditions.

Many power of attorney and health care proxy documents that were created years ago should be revised now as a result of a federal medical privacy law.

The law, known as HIPAA, generally prevents health care providers from disclosing your personal medical information to anyone but you and someone you’ve named as your “personal representative.”

Medical privacy is a good thing – but the law can create complications. For instance, you may have a health care proxy that names someone you want to make medical decisions for you if you’re not able to make them yourself. But if you haven’t also named that person as your “personal representative” under HIPAA, then he or she might not be able to access your medical information in order to make informed decisions.

Many-older-powers-of-attorn

Also, many power of attorney documents say that your agent can act on your behalf if you become incapacitated. But if your agent isn’t also your personal representative under HIPAA, then even if you do become incapacitated, your agent might not be able to access your medical records in order to prove it – and as a result, the power of attorney might be of little value.

To make sure your agent doesn’t get caught in this “Catch-22,” your power of attorney and health care proxy documents should contain HIPAA clauses saying that the agent is also your personal representative. In some cases, it might also be a good idea to sign separate HIPAA release forms.

Here’s another issue: When people are admitted to a hospital, the hospital often asks them to fill out a generic health care proxy form. A lot of people dutifully fill out this form as part of the hospital paperwork. But if you do so, it could revoke the more carefully considered form you created as part of your estate plan. You’ll want to be careful to make sure that the form you create as part of your estate plan is the most current form and the one on which the hospital will rely.

Must-couples-share-propertyMost people assume that a divorcing couple’s assets will be divided according to what they own at the time they separate. But in some cases, things that happen aftera couple split up can affect what they’re entitled to in a divorce.

For this reason, anyone who is contemplating divorce should tell their attorney about anything that could affect their own and their spouse’s prospects down the road.

Take the case of a man in South Carolina who was a partner in a real estate project. While his divorce was pending, the value of his share increased, and his partner later bought out his interest for $1.6 million. A court ruled that his wife could share in the increase in value, because it was due to the efforts of the partner and not the husband.

Here are some other examples:

    • A woman in Virginia received stock options from her employer while she was married, but options didn’t vest until after she had separated. The Virginia Supreme Court decided that the options could still be divided at divorce.

 

    • A Pennsylvania man filed a personal injury lawsuit before his divorce, but didn’t receive a settlement until after the divorce. The Pennsylvania Supreme Court said he nevertheless had to share the settlement money with his ex-wife.

 

  • A Vermont couple didn’t have much money, but the husband came from a wealthy family and would likely inherit significant assets in the future. The Vermont Supreme Court said this fact could be considered when dividing the couple’s assets, so the wife could get a larger share.

Be-careful-if-youre-buyingWith the real estate market still in the doldrums, a lot of people are thinking that this is a good opportunity to buy a brand new condominium, rather than one in an older community.

New construction has a lot of advantages: Everything’s new, and you might get to choose your own paint colors, bathroom tile, kitchen surfaces and so on. Plus, developers often need to “pre-sell” a number of units to complete their financing, so they may be willing to offer very attractive prices to people who buy in early.

On the other hand, new construction can be more complicated, and there are some potential pitfalls. You should definitely speak with an attorney before you sign anything in order to make sure you’re protected.

 

 

Here are some things to consider:

 

  • The developer’s offering plan will contain the specifications for the unit, including exact size, the standard appliances or appliance allowance, what finishes to expect, and so on. This document can be dense and difficult. You’ll want to make sure you understand exactly what you’re supposed to be getting, and make sure the developer fulfills his or her obligations as the construction progresses. (Don’t just rely on brochures and verbal promises, which might not be legally binding.)
  • At the time you put down a deposit, the condo documents might not yet be finalized. You’ll want to look these over carefully as soon as they’re official, to make sure you agree with the rules for the association. Are you happy with the condo fees, any restrictions on pets, and other issues?

Be-careful-if-youre-2

  • Getting a mortgage for new construction can be difficult. For instance, Fannie Mae won’t back a mortgage unless a certain percentage of the units in the building are already under contract. That means that if you’re one of the earlier buyers, you might have trouble getting a loan. Even if you’re a later purchaser, Fannie might be reluctant to okay the building if a significant number of the units will be owned by landlords or investors, as opposed to people who actually live there.
  • Another mortgage problem is getting a good appraisal. Appraisals are based on “comparable sales,” and with a new building, it might be hard to find comparable sales. An appraiser might have to rely on sales of units in older buildings, and this could result in an appraisal that comes in below your purchase price.
  • Don’t assume that new construction always means high-quality construction. Developers have been known to cut corners, especially with last-minute details and especially if they’re having trouble selling units and need to reduce their costs. It’s vital to hire a good home inspector even for a brand-new home.
  • Buyers of new construction sometimes qualify for property tax abatements. You’ll want to make sure you understand what tax savings you’re entitled to, and how to obtain them.
  • Closing costs can be higher for new construction, so be prepared.

Many people who buy a new-construction condo end up with a beautiful home at a reasonable price. Just be sure to consult with a knowledgeable advisor first…so you can increase your chances of being one of them.