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Do you have “enough” insurance? The importance of uninsured/underinsured coverage.

Lawyer Blog Post 2011/03/20 10:05

http://jassimlaw.com/blog/do-you-have-enough-insurance-the-importance-of-uninsuredunderinsured-coverage/3/

Most reasonable and responsible citizens carry at least the minimum required liability insurance, if not more than the minimum. The general rule of thumb has been to carry enough liability insurance to cover the value of your assets. While that is a good place start, the reality is that protecting your assets just may not be enough.

Consider this: You carry a $100,000 liability auto policy, with $100,000 UIM (uninsured/underinsured limits). In case you were not aware, you cannot obtain UIM coverage in excess of the amount of your own liability limits.

Now, assume an auto accident occurs and YOU are injured through little or no fault of your own. Your medical expenses are almost 6 figures, and you will need some long term care. The other driver has $50,000 policy limits and no other assets to collect upon.

Under that scenario, your maximum recovery would be $100,000. You could recover the other driver’s maximum of $50,000, plus an additional $50,000 from your own insurance policy.

Unfortunately, $100,000 is not going to cover your expenses in the long term, or possibly even the short term.

Now, for only a couple hundred dollars more per year, you could have obtained a $500,000 or even $1 million liability and UIM policy. Under the previous hypothetical, if you had higher limits you could have recovered $50,000 from the other driver, plus up to an additional $950,000 from your own policy – for a total of $1 million. Now, assume the other driver had the California State mimimum of $15,000. In that case, you could recover $15,000 from the other driver’s policy, plus up to $985,000 from your own policy if your injuries and damages justified a maximum recovery.

So, when you are thinking about purchasing an auto policy, or if it is time to renew, don’t simply consider what limits you need to “cover your assets”, but also consider that you may be faced with the very real possibility of being injured by someone without adequate coverage, or assets. If that happens, you should be prepared with sufficient liability and UIM coverage of your own.

When it comes to your life, and the life of your loved one’s, you do not want to take the gamble that the stranger about to collide with you has the right policy to cover you.

Military Courts-Martial: What lies ahead?

Lawyer Blog Post 2011/01/26 14:37

Its a normal Tuesday morning. You report for work as usual but soon after your immediate supervisor pulls you aside and says to you: “NCIS (or OSI, CID, or base police) is here and wants to see you now.” You are ushered into an office, the door is closed behind you and two agents identify themselves as law enforcement and show you their badges. What do you do?

The first thing you need to be aware of is that if you are suspected of having committed a criminal offense in the military, you have the right to remain silent and not answer any questions regarding the alleged offense. You also have the right to speak to a military defense lawyer before making any statement to investigators. These rights are guaranteed by the U.S. Constitution and the Uniform Code of Military Justice (UCMJ). Of course, simply being aware of and invoking your rights does not guarantee that charges will not be brought against you. In many instances, attempting to interrogate the suspect in an effort to gain a damaging confession or admission is the last step taken by criminal investigators after perhaps many weeks or months of investigation.

If you find yourself in this situation, the early assistance of an experienced military defense lawyer is essential to presenting your best defense in court. Criminal charges in the military can be prosecuted at many levels depending on the severity of the allegations. Minor infractions may be handled by administrative means or through non-judicial punishment (NJP or Article 15) while more serious charges may be referred to a special or general court-martial. Assuming the allegations are serious enough to bring to court, the likely next step is preferral where an individual (usually a legal clerk or technician) swears to the charges before an officer authorized to administer oaths. You are entitled to receive a copy of the sworn charges.

What happens next depends on whether the government intends to refer the charges to a special or general court-martial. In the military, final charging and forum decisions are made by the Convening Authority (normally the commander of the unit or organization you are assigned to). The Convening Authority is usually not a lawyer but may have a judge advocate assigned to the staff to provide legal advice. Typically, if the commander is a Flag or General officer, they will have a staff judge advocate (SJA). Smaller commands may have a non-lawyer officer who has received some training as a collateral duty legal officer. In addition, the command may receive advice from the prosecutor (called a Trial Counsel) and various law enforcement agencies.

As you can see, the government has a wide array of resources at its disposal and the odds may seem stacked against you. The government, however, always has the burden of proving guilt beyond a reasonable doubt and there are other procedural and Constitutional safeguards you are entitled to. It is therefore essential that you have the assistance of counsel to assist you in defending your case. If you have been charged with a criminal offense in the military or know that you are under investigation, contact an experienced military defense lawyer to protect your rights.

http://ericroperlaw.com/blog/military-courts-martial-what-lies-ahead/55/

There Is No Bar to Bringing a 23(b)(3) Class Action and a FLSA Collective Action Together

Lawyer Blog Post 2011/01/19 23:00

January 19, 2011

Yesterday, the Seventh Circuit held that there is nothing in federal law that prevents a party from seeking class certification under Rule 23(b)(3) and a collective action under the FLSA in the same lawsuit in Ervin v. OS Restaurant Services, Inc., Case No. 09-3029. In reaching this decision, the Court reversed a decision by the district court, which found a "clear incompatibility" between the FLSA proceeding and the proposed class action. The Seventh Circuit is the first federal appellate court to weigh in on this issue.

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The plaintiffs in this case were restaurant employees who brought wage and hour claims against their employer under both the FLSA and state law. The plaintiffs moved for conditional approval of a federal collective action under 29 U.S.C. § 216(b), which authorizes employees to act together to seek redress for violations of the statute's minimum wage and maximum hour provisions. A collective action allows potential plaintiffs the opportunity to opt into the action. At the same time, the plaintiffs sought certification under Rule 23(b)(3) of three different classes alleging state-law claims, all of which would have been opt-out classes. The district court found a "clear incompatibility between the 'opt out' nature of a Rule 23 action and the 'opt in' nature of a Section 216 action," which automatically meant that the class action device was not a superior mechanism for resolving the plaintiffs' state-law claims. It, therefore, permitted the collective action to proceed, but denied class certification.

On appeal, the Court concluded that there is no categorical rule against certifying a Rule 23(b)(3) state-law class action in a proceeding that also includes a collective action brought under the FLSA.

In combined actions, the question whether a class should be certified under Rule 23(b)(3) will turn — as it always does — on the application of the criteria set forth in the rule; there is no insurmountable tension between the FLSA and Rule 23(b)(3). Nothing in the text of the FLSA or the procedures established by the statute suggests either that the FLSA was intended generally to oust other ordinary procedures used in federal court or that class actions in particular could not be combined with an FLSA proceeding.

The district court recognized that allowing the two types of actions to proceed together would mean that some of the people included as part of the state-law classes (those who did nothing) would be excluded from the FLSA collective action. It then apparently determined that this outcome would undermine the intention of Congress expressed in the FLSA.

In our view, the court jumped too quickly to congressional intent. Before taking that step, we must examine the text of the FLSA itself. Nothing we find suggests that the FLSA is not amenable to state-law claims for related relief in the same federal proceeding.

While reaching this conclusion, the Court criticized the district court for suggesting that it might treat combined actions that are first filed in a state court and then removed to federal court differently from comparable cases that originate in federal court.

There is no reason for any such distinction, however. An original filing and a proper removal are each appropriate ways to reach federal court. Once a suit is removed from state court to federal court, it is governed by the federal court's procedures, there is no exclusion for Rule 23 or for any other rule. If there is a problem with combined actions, as the district court suggested, then the problem exists for all cases within the federal court's jurisdiction.

Finally, the Court made one point that litigators should remember when preparing for any oral argument. At one point, the employer argued that having an opt-in and opt-out notice sent to the same set of employees carries too high a potential for confusing notice to potential group members.

When we asked at oral argument whether Outback's lawyers could provide any concrete examples of confusion resulting from this type of notification, they were unable to point to a single instance.

While the Court noted the "commendable concern for [the] employees' interests" by their employer, it did not find the possibility of this confusion to be dispositive.

Lessons:

A plaintiff may bring a 23(b)(3) class action and an FLSA collective action within the same lawsuit.
Application of federal procedure does not rest upon whether the case was removed to federal court or originally brought in that court.
If you are going to argue a practical problem with your opponent's argument, make sure to have a real-life example of that problem in action.

http://indianalawupdate.com/entry/There-Is-No-Bar-to-Bringing-a-23b3-Class-Action-and-a-FLSA-Collective-Action-Together

7th Circuit Will Not Allow You to Resign from Its Bar to Avoid Disbarment

Lawyer Blog Post 2010/12/10 23:01

December 10, 2010

We here at the Indiana Law Update sincerely hope that none of our readers ever need to apply yesterday's decision from the 7th Circuit in In re Wick, Case No. D-10-0015 to their own practice. However, it is an interesting decision dealing with how the Court will treat a request to resign from its bar.

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Lessons:

The Seventh Circuit will not allow you to resign from its bar in order to avoid attorney discipline.

http://indianalawupdate.com/entry/7th-Circuit-Will-Not-Allow-You-to-Resign-from-Its-Bar-to-Avoid-Disbarment

Residential Real Estate Disclosures Must Be Made in Sale to Living Trust

Lawyer Blog Post 2010/12/07 23:02

December 7, 2010

I.C. Chapter 32-21-5 abrogates the common law rule of caveat emptor with regard to representations made in a statutorily required Sales Disclosure Form. Yesterday, the Court addressed a related issue in Rex Breeden Revocable Trust v. Hoffmeister-Repp, Case No. 03A04-1003-CT-18 -- whether these rules apply to any residential real estate sale to a living trust. The Court found the statute ambiguous and limited its language to sales from one person to that person's own living trust.

In this case, a homeowner sold a home to a buyer. However, the buyer did not buy the property directly; rather, he purchased it using a living trust. A dispute arose concerning whether the seller had made misrepresentations about the residence and the buyers eventually brought suit. The parties filed cross-motions for summary judgment and the trial court granted the seller's motion. The buyers appealed.

At issue was whether I.C. Chapter 32-21-5 applied to the sale. I.C. § 32-21-5-1(b)(9) states that this Chapter does not apply to "[t]ransfers to a living trust." The buyer argued that this language clearly exempted this sale from the Act. The seller argued that this could be illogical. The Court found this language ambiguous -- arguably because the parties disagreed over its interpretation.

http://indianalawupdate.com/entry/Residential-Real-Estate-Disclosures-Must-Be-Made-in-Sale-to-Living-Trust

Managing Outsourced Work

Lawyer Blog Post 2010/09/06 21:33

Outsourcing has become easier with modern technologies like the Internet. I suspect outsourcing will become even more popular as businesses seek greater efficiency and as professional services become more specialized.

If you are a business handling confidential client information, outsourcing comes with risks and responsibilities. The risks are fairly obvious. Sensitive information in the hands of third parties presents opportunities for identity theft, fraud, and other illegal or unseemly activities. In many cases, you cannot closely monitor third party activities or easily hold them accountable for mishandling information or breaking confidences.

Such risks probably do not outweigh the benefits of outsourcing, but they should perhaps inspire your adhesion to policies and procedures designed to minimize them. For example, maybe all your clients should know about and give explicit written consent to your outsourcing, even if your outsourcing seems like a commonplace, obvious, or implied part of the service being offered. Although you may have good relations with your third-party vendors, keep in mind that the good relations are yours, not your clients’. Even if you regularly outsource to a firm which you know and trust and which has its own professional responsibilities, your clients may have personal reasons for avoiding contact with your vendors of first choice.

You may also wish to formally evaluate the credibility of third-party vendors you hire to perform outsourced work, perhaps maintaining a list of credentials for being eligible to handle confidential information. Explaining these concerns to your clients, and the steps you’ve taken to mitigate them, will inspire confidence in your services.

Do you have “enough” insurance? The importance of uninsured/underinsured coverage.

Military Courts-Martial: What lies ahead?

There Is No Bar to Bringing a 23(b)(3) Class Action and a FLSA Collective Action Together

7th Circuit Will Not Allow You to Resign from Its Bar to Avoid Disbarment

Residential Real Estate Disclosures Must Be Made in Sale to Living Trust

Managing Outsourced Work

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