Nothing Better than this for July 4th

WE hold these truths to be -selfevident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.   

With these words, the greatest, fairest, most prosperous society in human history was launched.   It is now  the responsibility of all to participate and pursue the Happiness that Thomas Jefferson set forth.

From everyone here at Bruce Montague & Partners and the Blog,

 

Have a Safe, Healthy and Happy July 4^th  

 

Supreme Court Gives Plaintiffs a Bad Day

On Monday the U.S. Supreme Court issued three opinions which came out against Plaintiffs.  The issues were far and wide.   Suing a pharmaceutical manufacturer,  bringing a sexual discrimination claim agains tyour employer and  bringing a retaliatory firing action against your employer.    All of these cases were significant victories for the defendants and hurt the little guy.

We fight the best we can for our clients and it sure would be nice if the Supreme Court understood the lives everyday people and see how the difficult hurdles they place before these everyday people do more harm than good.

What do you think?

We recently had a trial with this fact pattern.    An elderly husband and wife exit a livery car.  The wife gets out first and steps onto the sidewalk.  The husband pays the fare and begins to slide out of the car.   As he gets out he holds his wife’s hand.  His small tote bag with two handles slips off his left arm.  He closes the door and one of the handles and a portion of the bag get stuck in the door frame.   The driver begins to move away from the curb, but one of the bag handles is still on the husband’s arm.   Both are pulled like a rubber band into the street.  Tragically, the wife succumbed to her injuries a few months after the accident and the husband suffered a serious injury, but has made an excellent recovery.

you think the liver car driver was negligent?  Do you think the entire accident was the husband’s fault?   Maybe each of them bear some fault.

In this case, we settled after closing arguments.   The settlement was enough that the husband will be able to afford to live in his assisted care facility, which he enjoys,  for the rest of his life.

After the settlement, we spoke to most of the jurors.  Although they all felt terrible for the husband, they seemed to have been split 4-2 against finding the driver negligent, although they were also thinking that they may have come down 50/50 against them both had they had the chance to deliberate.

At Bruce Montague & Partners, we fight hard for our client’s up to and through a trial.  In this case we were able to obtain a settlement that was right for our client.    We take great pride in always doing  what is best for our clients.

Tell us what you think.  Email info@montaguelaw.com

New laws for getting permit and junior license.

Here is an excerpt from an article laying out requirements and rules for those getting their permit and license at age 16.  

 

Summary of New York Law Regarding Young Drivers

Brian P. Heermance and Brian L. Battisti

New York Law Journal

06-06-2012

 

On Feb. 22, 2010, New York State enacted changes to the Graduated Driver Licensing Law (GDL)¹ as a way of improving teenage driver safety. The changes included reducing the number of non-family passengers under age 21 allowed to ride in a vehicle operated by a junior license holder from two to one; increasing the number of supervised driving hours required before scheduling a road test from 20 to 50 hours, including 15 hours of driving after sunset; and eliminating the limited junior license and requiring that a junior permit be held for a minimum of six months prior to obtaining a junior or senior license.

This article will examine the types of licenses for new drivers, the requirements and restrictions of each, and how license restrictions are enforced throughout New York State.

Graduated Licensing Law

The Graduated Driver Licensing Law is applicable to any driver under the age of 18, even if issued a valid out-of-state permit or license, while driving within New York state. The GDL established a three-stage licensing process: new drivers first earn a junior permit, then a junior license and, finally, a senior license.

Junior Permit. Once a new driver turns 16 and completes the required written test, he or she may drive only when accompanied by a validly licensed supervising driver over the age of 21. The supervising driver must be seated in the front passenger seat.

A driver with a junior permit may only have one passenger under the age of 21, unless they are members of the driver’s immediate family.

A driver may not drive on a street in a New York city park, any bridge or tunnel under the jurisdiction of the Triborough Bridge and Tunnel Authority, or on the Cross County, Hutchinson River, Saw Mill River, or Taconic State parkways in Westchester County.

Every passenger must wear a seat belt. Children under the age of eight must use a proper child restraint system, with children under the age of 4 in a federally approved child safety seat. If the child is over four feet, nine inches tall, he or she is allowed to use a seat belt and shoulder harness.

Once a driver has had a valid permit for six months and has completed 50 hours of supervised driving, of which a minimum of 15 must be after sunset, a road test can be scheduled.

The supervised practice driving must be certified (Certification of Supervised Driving (MV-262)) by a parent or guardian and provided to the examiner at the road test.

Regional Restrictions:

New York City. The subject vehicle is required to be equipped with a dual control/brake system.

New York City and Nassau and Suffolk counties.The supervising driver must be a parent, guardian or driving instructor. New drivers are prohibited from driving between the hours of 9 p.m. and 5 a.m.

Remainder of State. A new driver may drive with a supervising driver who is at least 21 between the hours of 5 a.m. and 9 p.m. Between the hours of 9 p.m. and 5 a.m. the supervising driver must be a parent, guardian or driving instructor.

Junior License. If the new driver completes the supervised driving hours and passes the road test, he or she will be issued a junior license. Similar restrictions apply to junior licenses.

A driver with a junior license may only have one passenger under the age of 21 in the motor vehicle, unless the passengers are members of the junior driver’s immediate family. This does not apply if the junior driver is accompanied by a licensed parent/guardian or driving instructor.

Regional Restrictions:

New York City. Junior licensed drivers are not permitted to drive within the five boroughs under any circumstances.

Nassau and Suffolk counties. Junior licensed drivers are permitted to drive without a supervising driver if traveling directly between home and work, a work-study program, college, university, or registered evening high school course, or a driver education course.

In the remainder of cases, junior licensed drivers may drive between 5 a.m. and 9 p.m. with a supervising driver. Only the supervising driver may sit in the front seat.

Remainder of State. A new driver may drive without a supervising driver between the hours of 5 a.m. and 9 p.m.

Between the hours of 9 p.m. and 5 a.m., junior licensed drivers are permitted to drive without a supervising driver if traveling directly between home and employment or educational courses.

Senior License. Once a junior licensed driver has completed a state-approved driver education course and reached the age of 17, the driver can obtain a class D senior license. The driver simply brings the Certification of Completion (MV-285) to his or her local DMV and the restrictions discussed above will no longer apply.

A junior license becomes a senior license once the driver reaches the age of 18.

Portable Electronic Devices. It is illegal for any driver, including new drivers, who may face suspension or revocation for violations, to text using a portable electronic device while the vehicle is moving.⁶ In addition, drivers cannot operate a motor vehicle while wearing more than one earphone attached to an audio device.⁷

As you can see, these rules are much more restrictive they they were when those of  us in our 40s got our licenses.

 

LHWCA- Expanded Test for Qualification of Benefits

There was some good news out of the Supreme Court this week for injured workers.    The Long Shore Harbor Workers Compensation Act (LHWCA)   provides workers compensation benefits for workers injured while performing work on a waterway.  In a case dealing with work on an oil platform off California on the Outer Continental Shelf, (OCS)  the LHWCA also provides coverage if the injury occurs as the “result of operations conducted on the Outer Continental Shelf”   

The case dealt with a worker who spent 98% of his time on the OCS but his injuries which resulted in his death occurred on land.   The Administrative Law Judge denied his widow’s application for LHWCA Benefits ruling that because his injury occurred on land he wasn’t eligible for LHWCA benefits.. (LHWCA benefits are generally higher and more generous than Workers Compensation Benefits.)  

The Supreme Court ruled that the proper standard is not the site where the injury occurred but rather a “substantial-nexux”  test.    This case is a great victory for injured workers.   

The opinion can be found here http://www.littleurl.net/1a61c0

China reaches a new low

I  try to post up to date legal items on this blog.  Sometimes we come across information and articles that are so horrific and unbelievable that I think it is important that as many people see it as possible.  Today I read an article in the NY Times that fits that description.  The Chinese Government is acting so horrifically it hard to believe that this isn’t a bigger story.  Read the following link.

It is hard to believe that in 2011 Chinese officials are stealing babies from its citizens and the world is doing nothing.

And The Decison Is…

After almost 8 months, a decision was finally handed in our motion to extinguish Medicare Replacement Plan lien.  I am pleased to say that we had an overwhelming victory.  Justice Kramer completely extinguished the lien and out client will get to keep over $37,000 of her settlement.  This is a great victory not only for our client, but for all Plaintiffs who have to settle for limited insurance policies but have large medical expenses.

It was extremely unfair of Oxford Insurance (now United Healthcare) to seek almost every dollar of our clients recovery.  They didn’t go through the surgery, they didn’t go through months of recuperation.   Yet, they still wanted to be paid almost all of the money.

This is one of the first (I believe the first) decision in New York State regarding GOL 5-335 and a medicare replacement plan.   I am so pleased for our client that the Court agreed with our reading of this complex medicare law and saw fit to extinguish the lien.

The decision  was printed in the New York Law Journal. http://tiny.cc/4elyt  or http://www.law.com/jsp/nylj/CaseDecisionNY.jsp?id=1202500670901

 

7 months and counting

Well, it’s been 7 months since I’ve posted.  I decided to wait until we received a decision on the medicare replacement plan matter.   Unfortunately we still haven’t received a decision.   Since that time though I have gotten some interesting information.

Between 2005 and 2008 Plaintiff’s have paid back over 1 Billion Dollars to the Medicare trustee.  What does that mean?  It means that Plaintiffs and their attorneys were successful in having third party tortfreasors pay Medicare over 1 Billion Dollars in just 4 years.    It means that contrary to the statments of people in favor of tort reform, (or more accurately deform)  the work of Plaintiff’s and their attorneys are helping the U.S. Treasury.  We are helping to decrease the federal budget deficit and are helping to fund Medicare.

I’ve yet to hear a person in favor of tort reform give an accurrate figure as to how much it will cost the treasury or the Medicare Program.

Medicare Choice and Personal Injury

Many seniors have enrolled with various insurance companies or through AARP into Medicare+Choice programs. These programs pickup and help pay for Medicare Benefits as well as offering additional insurance options. You may ask what does this have to do with Personal Injury cases. Well after a case settles, some sticky issues with healthcare providers are still left to be untangled.    Let’s say your trip and fall case settled for $60,000. If a health insurer, i.e. US Healthcare, paid your medical bills of $10,00 then US Healthcare would say you owe them $10,000 of that $60,000. A fter a few deductions which are called procurment costs are deducted, you would owe US Healthcare about $6,500 of your settlement.
Now, you may say that isn’t fair, you paid a lot of money for that healthcare policy. Check the fine print in the policy and you will see a provision saying if you recover money from another insurer then you must repay US Healthcare. New York State thought this was a little unfair, especially because when people settle a case, they rarely get 100% of the value of the injury or get full reimbursement for healthcare expenses. So an excellent law was passed in 2009 called General Obligations Law 5-335. This law essentially nullifies the healthcare insurance company’s ability to collect on the settlement. A Great win for New Yorkers.

One big exception in GOL 5-335 is for “Statutory Reimbursement”.   Statutory reimbursement includes thing such as Workers Compensation and Medicare provided by the Federal Government.     Medicare+Choice companies argue that they are entitled to reimbursement by the Federal Medicare Statutes the same as the USA.   We disagree with this interpretation of the Medicare Statute and are currently fighting Oxford Insurance Company in Court on this issue.   We have submitted our motion to extinguish Oxford’s lien and the motion was recently submitted.

Stay Tuned.

Bruce Montague & Partners   http://www.montaguelaw.com

Response to Saturday WSJ Editorial

On Saturday Oct. 9, 2010 the WSJ published an editorial decrying the fact that the banks are getting tossed out of Courts all over the country because their Court forms are not signed by the correct people. Here is a short quote from that editorial. “The affidavit was supposed to be signed by the nameless, faceless employee in the back office who reviewed the file, not the other nameless, faceless employee who sits in the front.”

The Banks have a responsibility to follow the law. If the law says that the actual person who reviewed the documents must sign the form, then that is what they must do. The banks brought this problem onto themselves. The borrowers all signed Notes and Mortgages. Those documents set forth the duties of the parties and what happens when the borrower fails to pay. The Banks drew up the terms and conditions. The Banks knew of the State Laws and what they mandated. The Banks loaned too much money to too many people. Now they have to foreclose. The solution for the banks is to hire the necessary personnel so that they can actually review the documents. If the Banks employed enough people to cleanup their mess, they wouldn’t be in this situation. If they moved quicker and did fair short sales, they wouldn’t be in this position.

I don’t feel sorry for Banks having to follow the law. There are plenty of situations when a person or corporation loses in court when they are in the right because of “technical violations” including the failure to have a correct affidavit. This happens everyday in our Courts. The Banks shouldn’t get special rules or dispensation just because they messed up more than anyone else.