SEARCH OF COLLEGE DORM DECLARED UNLAWFUL

We often forget as citizens of Massachusetts and the United States that we have a constitutional right, both state and federal, to be free from unlawful searches. In other words, there must be probable cause to believe that a crime has, is, or will be committed in order to legally effectuate a search. More particularly, our laws absolutely prohibit searches of a person’s home or residence without a properly based and substantiated search warrant.

Recently, our Supreme Judicial Court declared that a college campus dormitory room which was searched without a warrant and with the use of coercive tactics by the campus police was illegal. This decision finally stems the tide of cases which for one reason or another once seemed to uphold similar searches on the basis of consent of the student or occupant.

Speaking to the issue, the court said “If either the officer’s request or the occupant’s response is so ambiguous that we are unable to discern whether the occupant voluntarily consented to the search, our inquiry will be over and the entry must be deemed unlawful”.

The important point to make is that neither the campus police nor anyone acting on their behalf has a right to search a college dormitory room without a warrant and definitely not without the permission of the student or occupant.

Injured by Fall on Snow and Ice? Property Owner can now be found negligent for failure to remove the snow.

Massachusetts followed a rule that for years prevented an injured person from recovering against the property owner as a result of a slip and fall on ice and snow. The reason why that happened is because Massachusetts did not allow a person who was injured, no matter how seriously, to sue the owner of the property if the snow and ice accumulated naturally. There was no duty to shovel or clear the snow and there was no duty to sand or salt the ice. There essentially was no negligence in failing to do so.

Finally, Massachusetts following the majority of other states with respect to snow and ice cases returned to the “reasonably safe standard”. The property owner whether a homeowner, government entity, or commercial property owner is now held to the ordinary standard of negligence when it comes to snow and ice. The property owner must now keep his property in a reasonably safe condition and take precautions which are reasonable to prevent injuries to those persons who are lawfully upon the property.

Now it can be argued that if a property owner fails to shovel his walk and remove the snow; sand and salt the ice, he will be considered negligent and will be held responsible for personal injuries to any third party lawfully on his property. This would include sidewalks, driveways, parking lots, walkways and ramps.

The change in the law also provides for retroactive application. That means that any person who was injured as a result of a slip and fall on a natural accumulation of ice and snow within the last three years may now have a case. So, if you or anyone you know has been injured and has been told that you did not have a legal case that could be pursued under the old law, you may now have to take a second look. Call Ianello & Brittain right away at 413-731-3131.

Ianello & Brittain P.C.: Motorcycle Collision Results in Severe Personal Injury

Ianello & Brittain P.C.: Motorcycle Collision Results in Severe Personal Injury

Motorcycle Collision Results in Severe Personal Injury

The negligence of the operator of a van caused a head-on collision with a motorcycle operator who sustained not only a fracture to his left wrist, but also second degree burns to eight percent of his body. These injuries can be devastating and must be properly documented with photographs and medical records, including nurses’ notes and medication charts. Motorcycle injuries often are permanent. At Ianello & Brittain those injured as a result of motorcycle collisions are given specialized treatment to assure that all of the evidence is properly preserved and analyzed so that liability or fault is established at the outset.

Operating Under the Influence – OUI, DUI and DWI - Sobriety Checkpoints

You know about sobriety checkpoints from my previous articles on OUI, DUI and DWI. There will be a sobriety checkpoint this Friday, October 29th somewhere in Hampden County, which usually means one of two locations. The state usually has about a ten person quota as long as you have been drinking, you will likely be arrested. You will be treated just like a criminal, arrested and brought to jail. The most popular location and where the roadblock will likely be set up is on West Columbus Avenue in Springfield heading south in the hospitality center parking lot located between State and Union Streets. The other location could be Memorial Avenue in West Springfield with set up in the main gate entrance to the Big E. You do not have to be drunk to be arrested. Having had an alcoholic beverage which can be detected is enough.

Routinely a police cruiser will be parked on the right hand side of the road just prior to the roadblock. Although there should be signs indicating that you are approaching a sobriety checkpoint, they are not often very well illuminated. Remember to use your judgment and remember to exercise your Constitutional right not to submit to any type of testing which would violate your Fifth Amendment privilege against self-incrimination. You will need a criminal attorney to defend and win your case. If charged call Ianello & Brittain right away, so that we can advise you of the criminal penalties upon conviction of an OUI, DUI or DWI charge. Insist upon speaking with an attorney before answering any questions or performing any tests.

We can be reached in an emergency by calling our office, Ianello & Brittain P.C. at (413)731-3131 and pressing 8 on your phone key pad.

October 29, 2010

New Texting Law in Massachusetts

Massachusetts just passed a “Safe Driving Law” with civil and criminal penalties effective September 30, 2010 covering the use of mobile phones and mobile electronic devices. Although the law was drafted to provide civil and criminal penalties for texting the law covers many other areas including a prohibition against the use of mobile devices by junior operators.

JUNIOR OPERATORS

Junior operators are barred from using a cell phone or operating any mobile device while driving a motor vehicle. The first violation calls for a $100 civil penalty or fine, a 60-day license suspension and the completion of a training course at the operator’s expense. For the second offense, a $250 fine will be assessed as well as a 180-day license suspension. The third or subsequent violation will trigger a $500 fine and a one year license suspension. Remember all license suspensions require payment of a re-instatement fee once the penalty period expires. There is no provision for a hardship license either for school or work.

PUBLIC TRANSPORT MOTOR VEHICLE OPERATORS

Adult operators of buses, vans and taxis among others are barred from using a mobile phone and each offense will produce a $500 fine. For those offenders over the age of 18, who improperly use a mobile phone (one hand must be on the steering wheel at all times) will be assessed for the first offense $35, the second offense in twelve months is a $75 and the third or subsequent offense in twelve months is a $150.

SENDING OR RECEIVING TEXT MESSAGES

Any operator who sends or receives text messages, emails or instant messaging while driving, will be assessed a $100 fine for the first offense, $250 fine for the second offense and a $500 fine third offense.

All of the above violations are considered civil and therefore will not incur any insurance surcharge which can form the basis of any additional suspension periods under the general guidelines of the Registrar of Motor Vehicles. The new law with reference to general motor vehicle suspensions for surchargeable events has been changed from the five surchargeable incidents in a three year period to three surchargeable incidents within a two year period. In other words, since some of the above violations call for their own suspensions, it will not also be considered or included in order to suspend a person’s license for any additional period of time in the event that he has also violated the regular guidelines as well. Criminal charges such as negligent operation will be sought against anyone using a device and who causes an accident or injury.

NEGLIGENT OPERATION AND INJURY FROM MOBILE PHONE USE

A. JUNIOR OPERATORS

A first offense is 180-day suspension and a second offense within three years is a one year suspension. Both require $500 reinstatement fees.
B. ADULT OPERATORS

For the first offense a 60-day suspension will apply and a second or subsequent offense within three years results in a one year suspension. A $500 reinstatement fee applies as well.

Since this offense is a criminal offense an insurance surcharge will apply as well. That means that in addition to the specific suspension period provided herein, if the surcharge triggers an additional suspension under the general guidelines of the Registrar, an additional suspension period will apply.

ELDER DRIVERS

There is also a provision for elder drivers who must now renew their drivers license in person if they are 75 years of age or older. They must now take and pass a vision test or provide an appropriate screening certificate from an appropriate healthcare provider to complete the renewal process.

Posted October 12, 2010

Violation of Abuse Prevention Orders (September 24, 2010)

A district court jury recently convicted a defendant for violation of an abuse prevention order by calling the victim and threatening her.

The courts in these matters usually hear from the victim and issue a restraining order which is intended to protect the victim. The terms of the order can be crafted by the judge to prevent the defendant from contacting the victim. The terms of an abuse prevention order usually contain no abuse and to stay away from the victim’s work and home. The courts sometimes issue an order of no abuse and allow the parties to remain in the same household when they do not want to be separated.

The courts usually enter these orders ex parte without notice to the defendant. The period between the issuance of the court order and the time that the defendant is notified can create a problem.

In the case of Commonwealth v. Melton, 77 Mass. App. Ct. 552, the defendant contacted the victim; the victim informed the defendant that she went to court and received a restraining order and that the defendant would be served with that order in due course. After this conversation took place the defendant knowing that there was a restraining order in effect but before he was served, contacted the victim again using threatening language. A jury convicted the defendant, even though he had not been formally served with the court order.

The judges and police departments take these matters very seriously and the temptation to contact a victim when there is a restraining order outstanding even though strong should be avoided.

Bad Faith Claim Could Cost An Insurance Company Over $1 Million (September 17, 2010)

Our Massachusetts Appeals Court recently reviewed a case in which the Plaintiff, who was seriously injured, brought a claim and ultimately sued the Defendant who was insured by Arbella Mutual Insurance Company. The Defendant’s operator was 100% at fault. The Plaintiff suffered fractured bones which required surgery and she incurred more than $50,000 in medical expenses. A demand was sent to Arbella by the Plaintiff’s attorney requesting payment of the $20,000 policy limits carried by the Defendant. Arbella failed to respond within the thirty (30) day period and a lawsuit was brought by the Plaintiff. Ultimately, Plaintiff’s attorney reached a settlement with the Defendant in the amount of $450,000. According to the agreement the Defendant assigned all rights with Arbella to the Plaintiff. In exchange, the Plaintiff agreed not to enforce the judgment against the Defendant personally. Almost two years post settlement with the Defendant; the Plaintiff sent a 93A demand letter to Arbella demanding $1.4 million. Arbella responded with an offer of $23,966.16. Shortly thereafter suit was filed against Arbella by the Plaintiff as assignee of the rights of the Defendant. Recently, the court issued a judgment against Arbella of more than one million dollars.

After about twenty years where the insurance companies have been treated with kid gloves by our appellate courts, we finally have a court which has taken the hammer, as it should, to Arbella. Hopefully, other insurers will take note and treat injured plaintiffs with the respect and dignity which they deserve.

Personal Injury Cases – The Decision to Sue (Tuesday 9/14/10)

We all know that when a person is injured in an accident or incident in which it is clear that someone else is at fault, a claim may be made for money damages to make up for the injuries and resulting damages. When to bring a lawsuit is not always that clear. In order to win a court case, an injured party (referred to as the plaintiff) must prove that the wrongdoer (referred to as the defendant) was negligent or careless. This burden of proof is on the plaintiff, and the standard of proof is an objective one. The standard is that of the hypothetical, ordinary and prudent person and if that person would act under the same or similar circumstances as that of the defendant. If this ordinary, reasonable and prudent person would not do what the defendant did under the same or similar circumstances or if the defendant did something or acted in a particular way which differs from that which the ordinary and reasonably prudent person would do, then the defendant is responsible.

Not only must there be negligence but there must be a causal relationship between that negligence and the resulting injury and damages. Finally, the case must be properly evaluated to determine whether it makes economic sense to justify a claim and perhaps a lawsuit. At Ianello & Brittain P.C. we rarely take cases which cannot proceed to court. Therefore, it is imperative that a client’s case be properly screened and evaluated to determine whether or not it makes economic sense to justify a lawsuit. In other words, will the expected monetary result justify the time and expense, not just for the lawyer, but for the plaintiff and his or her witnesses. The average lawsuit involves 50 to 100 hours of time to properly analyze, evaluate and prepare the case for trial. Litigants and witnesses must be thoroughly and completely prepared for trial to have the confidence it takes to win. Discovery requests, medical records and bills, wage and employment records, and financial records including bank statements and tax returns, if applicable, may also be necessary in the proof of the case. Using superior trial techniques, at Ianello & Brittain we take pride in maximizing a client’s recovery.

Sobriety Checkpoints

Sobriety checkpoints are deemed to be constitutional in OUI, DUI, DWI cases. In two cases the defendants attacked the sobriety checkpoints as unconstitutional because the first stop is made by an officer or state trooper who inquires as to whether someone has been drinking or using alcohol. It is at that point that the trooper makes a determination as to whether or not you are to be directed to a second checkpoint where you are asked to perform field sobriety testing as well as a breath test.

The lower courts both felt that the checkpoint was unconstitutional because it was purely discretionary on the part of the first officer or state trooper’s judgment as to whether or not you should proceed to the second checkpoint. The Supreme Judicial Court, however, reversed the lower court and decided that it was constitutional as long as the officer’s training and experience will allow him to differentiate between someone who is merely drinking (which is not a crime) and someone who may be under the influence as noted by the smell of alcohol, the responses from the person, and observations about speech, movement, etc.

The court did not change the existing law that a person instructed to proceed to the second checkpoint does not have to submit to any field sobriety testing or breath testing as such refusals are still constitutionally protected.

Wind Project Gets OK

On August 31st the Supreme Judicial Court decided that the wind project planned for Nantucket Sound may go forward. Some of the wealthy residents of Nantucket formed a corporation named Alliance To Protect Nantucket Sound, Inc. in order to try and block the wind farm. The wind farm will supply three quarters of the energy on Cape Cod. The wind farm project started in 2001 and it was originally thought that the wealthy residents who were well connected like former Senator Kennedy, current Senator John Kerry and many others would be able to block the project. But even with the help of former Senators Kennedy and John Kerry, both of whom opposed the project, the wind farm should be a great accomplishment to reduce our dependency on oil. It will also advance the technology of wind power which is in the infancy stage at present.

It seems like a repeat of the same old story. Everybody jumps on the bandwagon to support alternative energy and green house gas free but “not in my back yard”.

Loss of Chance Survival

This is a new theory that Massachusetts adopted with reference to our medical malpractice laws as of September 2008 which reinforces an additional theory of recovery in Massachusetts in a delayed diagnosis of cancer case.

For example, a breast cancer patient whose doctor commits medical malpractice by failing to detect a tumor until it has reached the size or the category of a Stage III or IV cancer has reduced the chances for the cancer patient to survive. If the cancer had been properly diagnosed and detected at a Stage I there is a 90% chance of survival, but at a Stage III or IV there is only a 30% chance of survival.

This theory also rebuts the inevitable argument by the negligent doctor that the patient would have died anyway; it was just a matter of time. Unfortunately, some doctors don’t understand that time is a precious commodity to someone who is battling cancer.

Of great significance is whether or not the plaintiff in a malpractice claim was proactive and did everything that they could to seek timely diagnosis and treatment. Any delay on their part could and most likely will be construed as contributing to their delay in diagnosis.

Remember we have been helping people for over 35 years and we can help you too.

Liquor Sale Liability

A seller of alcohol was liable for the negligent acts of a minor to a third party.

The court has now expanded the ruling to include not only sales to minors but also sales to a minor who obtains alcohol and gives it to another minor. If the minor who ultimately received the liquor injures a third party, the liquor establishment or package store will be held responsible.

The court decided this case on the basis that the sale to a minor, whether or not it is transferred to another minor, is foreseeable in today’s society. Whenever alcohol is involved in a personal injury case this aspect must be investigated thoroughly as there may be additional assets or insurance coverage available to secure a proper settlement or award.

At Ianello & Brittain P.C., we have a great deal of experience in handling these cases. Call us anytime you need our help.

IMPORTANT AUTOMOBILE INSURANCE – MEDICAL PAYMENTS BENEFITS

The law has changed with reference to Medical Payments (“Med Pay”) benefits to cover medical expenses as a result of injuries sustained in an automobile accident.

Before the new law, if you had sustained injuries in an automobile accident, your automobile insurance company would pay the first $2,000 in medical bills and/or lost wages under your Personal Injury Protection (“PIP”) benefits. If you had health insurance coverage, the remaining medical bills would be submitted to your health insurance company. If you had a claim against a third-party and recovered damages, the health insurance company would have to be paid back out of your settlement. The result would have been that you would receive that much less in your pocket.

The new change is significant in that after the first $2,000 has been paid by PIP, the remainder would be paid by Med Pay if you carried this optional coverage. If your claim against a third party were settled, the Med Pay benefits would not have to be paid back, which would result in significantly more money in your pocket. Since this optional coverage can be purchased through your insurance agent at a very low premium, I strongly urge you to call your insurance agent and add this coverage to your policy.

Trebled Damages for Unauthorized Cutting Down of Trees

A jury recently found a defendant responsible for cutting down his neighbor’s trees without permission and awarded the neighbor $30,000 in damages. The neighbor proved by expert testimony that the replacement value of the trees came to $30,000. What the average person does not know is that the law under M.G.L. c. 242 §7, requires any damages to be tripled. Thus the final award was $90,000 plus interest and costs.

You must receive written permission from your neighbor to cut down trees which may block your view or for any other personal reasons. If you are able to obtain a written permission slip describing the details permitted, make sure that you give a copy to the tree service because they will not perform the service on someone else’s property without written authorization.

CDL Rules and Regulations Applicable to OUI

This is a federal regulation adopted by the Federal Motor Carrier Safety Administration applicable to all commercial drivers’ licenses across the country. Our Massachusetts Registry of Motor Vehicles is mandated to follow these rules and regulations.

A first offender who holds a CDL will lose his privilege for one year and his employer must place the employee “out of service” until such time as his CDL has been reinstated. A second offense requires a lifetime suspension whether or not a commercial or non-commercial motor vehicle was being operated at the time of the offense. This penalty is a lifetime loss of license. The offender after ten (10) years may appeal the suspension, as long as he attends an alcohol rehabilitation program mandated by the state, but there is no guarantee that his CDL will be restored.

Unfortunately, our Board of Appeals which normally has authority in applicable cases to issue a hardship license has no authority to issue a hardship commercial driver’s license. For more complete information visit our website at www.iblawpc.com under important links, additional resources, Federal Motor Carrier Safety Administration - Rules and Regulations.

Employer’s Liability for Alcohol Consumption

The court recently affirmed an appeals court case that decided that an employer cannot be held liable for injuries to a third party caused by its employee’s negligence in the operation of his motor vehicle. The employee had been out at a restaurant consuming alcohol with his company’s supervisor for the purpose of discussing company business. After the employee left the restaurant, he was no longer on company business and was on his way home when the accident happened.

The court purposefully ruled that after the meeting had ended at the restaurant, the employer had ceased to be responsible even though the consumption of alcohol by the employee was sanctioned by his supervisor with whom he had the company meeting. It seems that one of the important factors that the court took into consideration was that the employee bought and paid for his own liquor and presumably was responsible for his own intake of alcohol. The court also spent time analyzing the going and coming rule which in most cases with the exception of police officers and those who work from their homes, are not working when they travel to and from their work place. A tough case nonetheless.

Restraining Order

Massachusetts General Law provides that family or household members may apply for a restraining order against another family or household member who has attempted to cause or has caused physical harm or placed another in fear of imminent serious physical harm or caused another to engage in involuntary sexual relations.

It is interesting to note that in addition to those originally intended for its protection such as husbands and wives and those living together, the statute has been expanded to those related by blood or marriage and those having a child in common regardless of whether they have ever been married. A substantive dating or engagement relationship is also covered.

The technical aspects of this law can easily be overlooked. Since the issuance of a restraining order usually contains serious conditions, it is essential to make sure that those conditions are not unfairly or arbitrarily applied. Conditions which are doomed for failure will result in a criminal complaint against the defendant for violation of the restraining order, which could result in incarceration.

INCREASED SMALL CLAIMS FEES

Effective August 1, 2010, the small claims limit was raised from $2,000 to $7,000. However with that the courts have taken advantage of tough times and have raised all of the filing fees. The filing fee will depend on the amount of the claim:

• $500 or less.................$40
• $501 to $2,000...............$50
• $2,001 to $5,000.............$100
• $5,001 to 7,000..............$150

Personal injury cases may now be filed in small claims court as long as the damages awarded won’t be more than $7,000. This is a significant change in that insurance companies on behalf of the defendant will no longer have the opportunity to sit on small cases for the usual two years it takes to get a case to trial or if they wish to proceed to trial and receive an adverse judgment, they have a right of appeal. Remember that the defendant has a right to appeal, the plaintiff does not. However if the defendant appeals from an adverse judgment, the primary or original judgment may be entered as evidence in court in the second trial. In essence, the original judgment is enough proof in and of itself to allow the court or jury to find for the plaintiff once again, without the plaintiff having to present any evidence. One other feature is that if the defendant transfers the case to the regular civil docket and loses, the defendant or his insurer will have to pay the plaintiff attorney fees.

One further quick note is that M.G.L. c. 93A, our consumer protection act, wherein double or triple damages plus attorney’s fees may be awarded, should not be effected by the $7,000 maximum. In other words, if the damages are $7,000 and there has been a violation of c. 93A, theoretically the magistrate may triple that amount to $21,000. The magistrate may also award attorney’s fees as well uneffected by the $7,000 limit. Accordingly, since an insurance company may be sued for bad faith in the small claims court you will now probably see the pendulum swing more equitably in favor of the injured. Let's hope so anyway.

Government Allowed to Retain DNA Sampling

In a recent decision in the Federal Court it was decided that a person who is convicted and consequently must provide a DNA sample cannot have that sample destroyed and cannot have the DNA information collected expunged from the data base once he has finished his sentence or probationary period.

The DNA Act authorizes the government to use such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample. Even if the person cooperates, once collected, a qualified federal offender’s sample is analyzed by the FBI to create a DNA profile. The DNA profile is then loaded into the FBI computer called CODIS short for Combined DNA Index System. CODIS is a three tiered system which links databases maintained at local, state, and national levels. There are over eight million offender profiles in the system and over 300,000 forensic profiles. The government claims that it has assisted in producing 120,000 matches as of June 2010. This has assisted in 117,000 investigations of various crimes nationwide.

The probationer in this case was never sentenced to prison but to a one year term of probation during which time he had to submit his DNA sample. The court concluded that the DNA sample was not an unreasonable search and seizure under the Fourth Amendment and allowed the government to retain the sample and the DNA profile. It will be interesting to see if contamination or human error will lead to false charges and wrongful convictions. Only time will tell.

Nursing Home Contracts

Nursing homes are now putting language in their contracts with their residents (or with a relative with a health care proxy) which requires, in a dispute over care or injuries, resolving the matter in an arbitration forum.

In the case of Miller vs. Cotter the Supreme Judicial Court ruled that a lawsuit was precluded by the arbitration clause which was signed by the son who had the requisite authority to make a binding agreement on behalf of his 91-year-old father. This is a significant ruling because arbitration awards are generally non-appealable and generally result in an award that is much less than a jury award. They may also be limited in the type and amount of damages which may be awarded.

Absent fraud, duress, or undue influence, arbitration agreements are enforceable in the context of nursing home agreements and, therefore, have become your only remedy in resolving disputes of negligence or substandard care which you may have alleged against a nursing home facility.

To read our five steps to protect your loved ones from nursing home neglect, please visit our Important Links page, click on Law and Penalties, then click on Nursing Home Neglect.

Always keep in mind that if you have any questions concerning a possible claim, our consultations by phone or in person are always free.

Changes to Drug Evidence

Drug Certificates are no longer accepted to prove the type, quality and quantity of the drug evidence against a defendant. The Supreme Court in the famous case of Melendez-Diaz v. Massachusetts now requires that a chemist who is an expert in drug analysis be called as an expert witness to prove the type and quantity of the drugs which the Commonwealth intends to use or introduce against the defendant before the court will allow that to happen.

While the new law will create a tougher burden upon the Commonwealth, the testimony by the expert which is subject to cross examination by the defendant’s attorney assures that the claimed drug quantity and quality is what it purports to be.

Although this is a heavier and costlier burden in the prosecution of these cases, hopefully the Commonwealth will spend its energies on the larger cases rather than those which are minor or insignificant.

Check the National Driver Register

This entity is a government registration bureau that requires all state Registry of Motor Vehicle departments throughout the United States to file reports of violations and license suspensions of all drivers.

If you have had any traffic violations or suspensions of your right to operate outside of Massachusetts or outside of your home state, it would be wise to request a record check.

Since a notice of suspension is often triggered by an open case from a foreign state it may take some time for Massachusetts to notify you of a suspension. By checking you will be able to clear up the outstanding matter and avoid suspension of your driver’s license.

Upon completing the appropriate form, the National Driver Register will provide you with all information, if any, free of charge. To obtain a copy of this form please go to our website at www.iblawpc.com for a link to the register which will provide you with a request form as well as filing instructions.

Automobile Insurance You Must Have

Oftentimes when clients come into our office as a result of a motor vehicle collision in which they have sustained serious injury, our first question is, “What do you have for automobile insurance coverage that protects you in the event that the wrongdoer has inadequate insurance?”

The response is nearly universal: “I have full coverage.” Unfortunately, very few realize that insurance agents keep insurance rates to a minimum at your expense by failing to recommend insurance coverage that will protect you in the event of serious or catastrophic and permanent injuries.

If you look at your insurance coverage selection page, you will find that the mandatory coverage is 20/40. This means that in the event that the wrongdoer is insured for only $20,000, your maximum recovery is only $20,000. It makes no difference how serious your injuries are; the $20,000 maximum will apply.

We recommend that you consult with your insurance agent and obtain quotes for a minimum of $100,000 for the following:

#3 Uninsured Coverage
#12 Underinsured Coverage
#5 Optional Bodily Injury to Others
#6 Medical Payments

With reference to medical coverage, most people believe that $8,000 in Personal Injury Protection Benefits (PIP) is adequate. Today, if you miss work and you have medical bills and lost wages that exceed $8,000, your coverage ends. Even if your health insurance pays your bills, the insurer will have a lien on your case and must be paid back out of your recovery. By having the extra coverage (#6 – Medical Payments), your bills and medical liens will likely be paid in full.

If you have any questions or require any assistance in determining the appropriate insurance coverage to protect yourself, please feel free to call us for help.

PROTECT YOURSELF FROM IDENTITY THEFT/FRAUD

Today, more and more people are aware of the dramatic increases in identity theft/fraud thanks to a variety of media outlets. However, very few people take proactive steps to protect themselves from identity theft/fraud. Below, we have listed some simple steps to protect yourself from identity theft /fraud as well as what you should do if your wallet is lost or stolen.

1. The next time you order checks do not use your full name. Use your first name initial and your last name. If you have a P.O. Box, use that rather than your home address. Never have your social security number printed on the checks. If a merchant requires your phone number on the check, use your work number.

2. When writing checks to pay credit cards, do not write your entire account number on the check. Instead, write just the last four numbers of your account number.

3. Do not sign the back of your credit cards. Instead, write “Photo ID Required”

4. Photocopy the contents of your wallet. This includes your license, credit cards, social security card, etc. Place the photocopies in a safe place where they can be quickly retrieved if your wallet is lost or stolen.

5. If your wallet is ever lost or stolen, you should IMMEDIATELY:
a. Report all credit cards lost or stolen;
b. File a police report; and
c. Call the three national credit reporting organizations to place a fraud alert on your name and social security number. This is particularly important as the company that checks your credit will know your information was lost or stolen and will have to contact you to authorize new credit.

6. Below are the numbers you will need if your wallet, I.D., etc. has been stolen:
a. Equifax: 1-800-525-6285
b. Experian: 1-888-397-3742
c. Trans Union: 1-800-680-7289
d. Social Security Administration (fraud line): 1-800-269-0271

MASSACHUSETTS SUPREME JUDICIAL COURT ABOLISHES NATURAL ACCUMULATION RULE

Massachusetts up until a recent decision followed the rule that a person who was injured by a fall caused by a natural accumulation of ice or snow could not recover. In other words, a land owner or occupier had no obligation to sand or salt a sidewalk, parking lot or driveway as long as nature created the defect. Even if there was a rain storm or sleet storm which coated an owner or occupier’s property with a sheet of ice, there was no obligation to sand, salt or remove the ice. Massachusetts now follows the majority rule throughout the U.S. that a land owner or occupier must keep the premises in a reasonably safe condition for all those persons who are lawfully on the owner or occupier’s property. Many of the quite serious and debilitating injuries were suffered by the elderly and handicapped because they neither have the physical skills nor the reflexes to appreciate and avoid the danger.

The new law is a good one as it will force homeowners to shovel their walks and clear their driveways and businesses to make sure that their parking lots are properly plowed, salted, sanded and maintained throughout our winter season. In the long run this will avoid many injuries to those that can least afford it.

VIOLATION OF PUBLIC POLICY RESULTS IN A WRONGFUL DISCHARGE

The general rule in Massachusetts does not protect an at-will employee (an employee without a contract) who has been fired for complaints about internal company policies or a violation of a company rule even though in reporting the violation the employee’s intent was made in good faith and was reasonable under all of the circumstances.

There is, however, a public policy exception which protects employees from complaining about violations of public policy. For example, recently there was a case where an appliance dealer forced an employee to install appliances requiring plumbing and electrical work when it knew that a licensed plumber and licensed electrician were required. There was also a violation in that the proper permits and inspections were not obtained. The employee’s case was allowed to proceed under a wrongful discharge claim because it was confirmed that his installations without license and without permit were against the law and these laws were passed to protect the safety and health of the public. So remember, when purchasing new appliances make sure that the dealer, if providing free installation, provides a licensed plumber or electrician and also verify that a proper permit has been issued. Your safety as well as your families is at stake.

ARGUMENT OR DISAGREEMENT MAY TURN INTO CRIMINAL HARRASSMENT CHARGE

It is now a misdemeanor to willfully and maliciously engage in a known pattern of conduct over a period of time directed at a person, which “seriously alarms” that person so that it would cause a reasonable person to suffer “substantial emotional distress”. The punishment for this misdemeanor is two and half years in the House of Correction or by a fine of not more than $1,000 or both.

The conduct which this law seeks to control would be any contact conducted by mail or by use of telephone or telecommunication devices. Any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic, photo-electronic, or photo optical system would be included along with email and other internet communications such as instant messaging directed at another. It is obvious from a reading of the law that the intent is to control the boom in technology related communication devices.

Our guess at Ianello & Brittain is that the term “substantial emotion distress” will be tested and contested in nearly every prosecution. Name calling or the use of vulgar or indecent language or gestures could cause a reasonable person to suffer “substantial emotional distress”. Some words or gestures might “seriously alarm” one person but might not alarm another. What might be offensive to one person may not be offensive to another. If a person takes things literally, then even communications made in jest may warrant a criminal charge. A valid constructive criticism lodged against another which “seriously alarms” that person or causes that person to suffer “substantial emotional distress” may now be a crime. If we don’t tread softly, and reflect more about the laws which our elected officials are passing these days, we may find our first amendment rights being usurped by our ever growing socialist population.

ANTI-BULLYING LAW

Is it legally necessary or an over-reaction? Our elected officials in another knee jerk reaction to a tragic event, a teen suicide, decided to show their sympathy by passing what is probably the most unnecessary and costly piece of legislation for school districts and law enforcement in the past 20 years. The new law defines bullying as the repeated use by a student toward another student of written, verbal or electronic expression or physical act or gesture which: 1. Causes physical or emotional harm to the victim’s property; 2. Places the victim in reasonable fear of harm to himself or of damage to his property; 3. Creates a hostile environment at school for the victim; and 4. Infringes on the rights of the victim at school or materially and substantially disrupts the education process or the orderly operation of a school. This will include cyber bullying as well. The law applies to public or private school students of an elementary or secondary school. The next logical step will be a future amendment to include college students, as well.

Cyber bullying for those of you who don’t know has been defined as the use of technology or any electronic communication which includes any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by wire, radio, electromagnetic, photo-electronic or photo-optical system, including but not limited to email, internet communications, instant messages or facsimile communications. Cyber bullying also includes someone who creates a web page or blog and assumes the identity of another person or a knowing impersonation of another person as the author of posted content or messages if the creation or impersonation creates any of the conditions enumerated in the previous clauses.

This is a confusing and unimaginable concoction of words, many of which are clearly prohibited from limitation by our Constitution. When will our lawmakers learn that you cannot restrict the freedom and free speech of 99.9% of the student population to protect 100th of 1%. Some things can’t be legislated and this is a good example of a law that hopefully will be struck down as unconstitutional before our cash-strapped state, cities and towns and private schools are forced to spend millions and millions of dollars to increase police, court, school and social service personnel.

Has Your Driver’s License Been Revoked or Suspended?

You may be able to obtain a “Cinderella” or 12-hour hardship license through the “Board of Appeals”, an arm of the Registry of Motor Vehicles which can change or modify decisions of the Registry of Motor Vehicles. The Board, however, only has jurisdiction as long as the basis of the suspension has not originated from a reported suspension by another state.

Since the creation of the National Driver Register, all states report suspension to this entity. Under the law, the home state must honor suspensions from the foreign state.

The Massachusetts Registry of Motor Vehicles is mandated to suspend a person’s driver’s license until such time as their “right to operate” is reinstated in the foreign state.

For example, if your right to operate has been suspended in Connecticut and you hold a Massachusetts license, Massachusetts will suspend your license until such time as your “right to operate” has been reinstated in Connecticut. Since Connecticut is right next door, it would be easy to clear up the Connecticut matter to the satisfaction of the Board. What happens if the foreign state is Pennsylvania or Georgia, for example? It could be insurmountable.

When you have done all that is required in the foreign state, make sure all paperwork is certified, and make sure your privilege to operate has been formally restored. Since Massachusetts will require proof of reinstatement by you, make sure that you obtain a copy of the driving history in the foreign state as well.

A hardship license will be granted generally for work but may also apply to a student going to school full time. Any documents presented to the Registry must be within thirty (30) days of your hearing. Additionally, a letter from your employer, on letterhead, must state the applicant’s need for a hardship license and your hours of work. (Remember this is a 12 hour license that may be given and the hours must start on the hour not on the half hour.) The applicant will also have to show that there is no public transportation which could be a substitute.

Don’t Be Scammed by Dishonest Contractors

Home improvement contractors (such as painting, roofing, siding and window replacement) are among the worst for dishonesty. The nature of the business makes it easy to prey upon low and moderate income families.

Their actions typically involve false and deceptive advertisements and misrepresentations as to registration, licenses and insurance coverage. Demanding excessive advanced deposits, cashing deposits personally as opposed to depositing to a business account and refusing to refund deposits are also deemed to be violations.

By spending the time to check out the contractor before any deposit is given, you can save your money and an unnecessary lawsuit. Typically, you should check with the Chamber of Commerce and the Better Business Bureau. Make sure to ask for references and a copy of the contractor’s license and certificate of insurance for general liability and workers compensation.

Call us anytime if you need help.

Winter Slip and Falls

Winter has once again arrived with dangerous snow and ice conditions from our New England weather. If you or someone you know slips on ice or snow, and you feel it was the fault of the tenant or property owner, please call us immediately. Our office hours are 8:30 a.m. to 5:00 p.m. Monday through Friday with evening and Saturday hours by appointment only.

In order to learn more about your rights and what to do, you can either call our office or leave a message any time during the day or after hours in our voice mailboxes to request our brochure on slip and fall cases. You may also visit our website at www.ianello.com for the appropriate brochure that pertains to your case.

Remember, if you are a victim of someone else’s negligence and are seriously injured as a result, you need the services of an expert. The law in this area is much too complicated for the average general practitioner.

We at Ianello Legal Associates pride ourselves on knowing the law and getting results. We would be glad to help you anytime you need us. We will always give you a straightforward analysis of your case. Remember, our consultations are always free.