WERE YOU WRONGFULLY DISCHARGED?
While most of the legal principles and practices of the workplace back an employer’s right to fire a worker, there are grounds for employees to make a “wrongful discharge claim.” The most flexible way to challenge a job dismissal is for a worker to show that there has been a breach of good faith and fair dealing. An example of breaching this responsibility would be contriving reasons for firing an employee on the basis of on-the-job performance, when the real motivation is to replace that employee with someone who will work for lower pay. If you feel that you were wrongfully fired, consult with a lawyer to see if you have the basis to challenge the dismissal.
HINT: If you have a written employment contract setting out the terms of your work, pay, and benefits, you may be able to get it enforced against an employer who ignores any one of its terms.
SETTLING YOUR WORKERS’ COMP CLAIM
If you were injured at work resulting in a lasting impairment, you may be able to negotiate a settlement. For instance, if the state allows injured workers to negotiate a lump sum settlement, you may prefer that over continuing to receive permanent weekly disability payments. You may also be able to settle any disputed amounts, past-due temporary disability payments, and unreimbursed medical expenses. In addition, it may be possible to negotiate an agreement for a structured settlement. However, by accepting a settlement, you may be giving up your right to receive compensation for future medical treatment. Because the wording of the settlement can be critical, it pays to have an experienced attorney on your side.
HINT: Estimating the value of a workers’ comp settlement is more complicated if you are on permanent total disability because the settlement value has to take into account the present value of your future entitlement to benefits.
A “revocable trust” (also known as a “living trust”) may be amended or revoked at any time and directs the manner in which its assets are to be managed during the lifetime of its creator. This estate-planning tool acts similarly to a will by instructing how its assets should be distributed after the grantor’s death. While a revocable trust offers, essentially, no tax advantages, it does offer some financial and administrative advantages. For one, revocable trust assets pass to named beneficiaries and are not controlled by the will, avoiding probate delays and costs. In the event of its creator’s incapacitation, assets held by the trust would be managed automatically by a named trustee, thereby avoiding potentially costly guardianship proceedings.
HINT: An “irrevocable trust” cannot be altered, changed, modified, or revoked once it has been created. When assets are transferred into an irrevocable trust, they are safe from creditors.
OVER BEFORE IT STARTS
The vast majority of civil cases never go to trial either because both sides reach a settlement beforehand or cases are dismissed. A “motion to dismiss” may be filed by a defendant who asserts that the plaintiff has failed to state a viable cause of action. In short, the plaintiff has no case, or has missed the statute of limitations. Another way to avoid a lawsuit going to trial involves filing a “motion for summary judgment,” typically filed after discovery is completed. This motion is granted when a party can get the court to determine that there is no issue of material fact and the undisputed facts indicate that one party should win the case as a matter of law.
HINT: If a plaintiff in a malpractice suit fails to retain a qualified expert to testify that the defendant committed malpractice, the defense can bring a motion for summary judgment because the plaintiff cannot prove the case with an expert.
When a home improvement contractor fails to finish the work he or she was contracted to perform, a homeowner may seek reimbursement from the contractor’s “bond.” When a contractor is bonded, there is an agreement between the consumer, the contractor, and the (insurance company) agent who issues the bond that guarantees the contractor will do the work outlined in the contract. If not, the consumer can report the problem to the issuing agent and receive compensation. Otherwise, consumers may hire an attorney to help initiate legal action. A lawyer may also help when a homeowner wants to fire a contractor. This action can be taken if it can be proven that the contractor committed a material breach of contract.
HINT: Breach of contract remedies are designed to put the non-breaching party in the same position as if the contract had been fully performed.
ARE YOU LIABLE FOR INJURIES ON YOUR PROPERTY?
Property owners have a responsibility to maintain a relatively safe environment that ensures that those entering the property have a reasonable expectation of not getting injured. This legal concept, known as “premises liability,” comes into play when an injury is caused by an unsafe or defective condition on someone’s property. Regardless of whether the accident takes place in a store or residence, or on public property, two basic rules determine who is legally responsible. First, the owner of the property has a legal duty not to expose those who enter to unreasonable risk due to faulty design, construction, or condition. However, property owners are not held liable for those entering the property in an unexpected, unauthorized, or dangerously careless manner.
HINT: If you are a guest or tenant who is injured in an accident on rental property, the party responsible for maintaining the area or condition that caused your accident is liable.
Because not all families start out in accordance with the traditional sequence of marriage followed by the birth of a child, there are cases that call for a man to establish that he is the father of a child. Contrary to popular belief, “paternity” cannot be established by a man’s name on a child’s birth certificate. The fact is that the mother can list anyone whom she believes or wants to believe is the father on the birth certificate. Nor is a DNA test the only way for a father to establish paternity. With an attorney’s help, paternity can be established through several means, including having an unmarried couple sign a voluntary acknowledgment of paternity or a similar agreement.
HINT: Paternity may be legally established in cases where the child is born to an unmarried couple if the parents marry after the child is born and sign a legitimation form.
THE MAKE WHOLE DOCTRINE
When individuals are physically harmed as the result of the negligence of others, the “make whole doctrine” seeks to place the damaged parties back into the position they would have been in before the injury caused by another. Both economic (out-of-pocket) and non-economic (loss of physical and mental well-being) losses are restored through monetary compensation. The term “general damages” refers to non-economic losses such as “pain and suffering.” The valuation of such loss is left largely to the jury’s discretion. “Special damages” are those awarded for compensable harms such as medical expenses and lost wages. These can easily be quantified with the help of bills, pay stubs, and the like. Plaintiffs should give a full accounting of their losses.
HINT: “Nominal damages” is the term used to describe a damage award issued by a court when a legal wrong has occurred, but where there was no actual financial loss as a result of that legal wrong.
Neighbors need not necessarily throw noisy parties or play loud music to disrupt the lives of those living close by. In this era of sensitivity to noise pollution, leaf blowers and lawn mowers are perceived as having the potential to create a credible noise problem. The first step in addressing this situation involves talking directly and respectfully to the neighbor making the noise in an effort to arrive at a resolution that both parties find acceptable. If that does not work, the noisy neighbor should be confronted with a copy of the local noise ordinance, with a note that repeats the request to keep the noise down. If this fails, a call to the police may be in order.
HINT: If necessary, a neighbor whose life has been continually disrupted as a result of another neighbor’s noise may sue the offending party for damages or to order the neighbor to “abate the nuisance.”