Automobile Accident or Premises Lialibility Case
What are my legal rights following an automobile accident or Premises mishap which has resulted in an injury to me?
If you have been involved in a motor vehicle accident or a Premises Injury caused by the fault of another, you have the right to obtain monetary compensation for your economic losses and injuries to your person. Compensation will include your lost wages from work; the medical expenses you incur in treating your injuries; as well as compensation for pain and suffering, anxiety and loss of enjoyment of life caused by your injury. If your injury is permanent, you will also receive compensation for that.
What will the insurance company for the person(s) or company who caused my injury do about my claim?
After notification of the claim, the insurance company will set up a file and appoint an insurance adjuster to handle your claim.
The insurance adjuster will want to take a statement from you regarding the accident and injuries. He or she will most likely want to do this immediately after the accident either by telephone or in person, and will often times want to record the statement.
Should I speak with the insurance adjuster when they call?
Insurance adjusters work for insurance companies. Despite any verbal assurance they may give you about speaking with them, remember they are working for the best interest of the insurance company, not you. Insurance companies are in business to make a profit and they don't make profits by paying claims.
We recommend that you get legal advice before speaking to any insurance adjuster. Often times the adjuster is looking for information from you that can result in a reduction in the compensation you are due.
How am I protected if the person at fault does not have any insurance coverage to pay for my claim?
For a premises liability claim, you may be out of luck unless the owner of the premises has sufficient assets to cover your claim. However, for a motor vehicle accident, you may be in a better position. By law, every automobile liability insurance policy sold in the State of Vermont has uninsured/underinsured motorist coverage. Therefore if the person at fault does not have any insurance, your own insurance policy will cover you up to the limits of your policy.
How am I protected if the person at fault does not have enough insurance coverage to pay for my claim? (This only applies to motor vehicle accident claims)
Here again, your own policy may provide additional coverage for you under the mandatory underinsured motorist coverage of your policy.
For this coverage to come into effect, your damages must exceed the persons at fault's policy limits and your policy must provide a greater amount of coverage than the person at faults' policy. For example, say your total damages are $100,000.00 and the person at fault has only $50,000.00 in liability coverage and your policy has $100,000.00 in underinsured motorist coverage. Under this scenario you would be able to collect the remaining $50,000.00 from your own policy.
This area of the law can be complicated as there are pitfalls that could prevent your underinsured claim. For example, before collecting the $50,000.00 from the person at faults' policy you must first get your insurance companies written consent to do so. Also, if you have more than one auto policy, you may be able to "stack" your underinsured coverage.
In view of the relative complexity of these claims we recommend you do not try to settle these claims yourself without the benefit of legal advice.
How do I pay my medical bills?
Depending on your situation, your bills may be paid by one of the following methods:
a. Medical payments insurance coverage from your own automobile policy if you were driving your automobile and were involved in an automobile collision.
b. Medical payments insurance coverage from the person you were riding with if you were a passenger in an automobile that has automobile insurance coverage.
c. If you were injured on another’s premise, medical payments coverage from the responsible owner’s premises liability insurance.
d. Your own health insurance.
e. Your own personal funds if you were not insured and are able to pay medical bills as they are incurred.
f. Workers' compensation insurance if your injury occurred while you were working on the job and the injury occurred as a result of your employment.
g. The liability insurance coverage for the person, persons or company who caused your injuries. Such insurance coverage will most likely be paid at the time of settlement rather than during the period that you incur such medical bills.
Will the doctors, hospitals and other medical facilities wait for payment if I am unable to pay my bills as they are incurred?
In most cases where there is no immediate method to pay medical bills as they are incurred, many doctors, hospitals, and other medical facilities will wait to be paid for their services when the case is finally resolved by way of settlement or verdict in court. It is important to let medical providers know early in the process if you have no insurance or financial means to pay medical bills are they are incurred. Your attorney can work out all arrangements with the provider, such as providing a voluntary lien on your settlement or verdict proceeds.
Do I really need a lawyer to pursue my claim?
It is our recommendation that you should not attempt to settle even a minor claim without at least speaking to an experienced personal injury lawyer. The main reason is that you would be dealing with an insurance claims adjuster who will try to pay you less than your claim is worth. An experienced personal injury lawyer knows how to properly value your claim. Unless you have been exposed to this, you most likely will not know how to value your claim and will most likely not get the appropriate settlement amount you deserve.
How would I pay for the lawyer, especially if I am out of work due to my injury?
Virtually all personal injury lawyers use the contingent fee agreement. This means that you do not have to pay the lawyer unless you receive monetary compensation for your injuries and losses.
Under the contingent fee agreement, the lawyer receives a percentage of the gross amount recovered. The usual and customary percentage is one-third.
What happens to the person at fault causing my injury?
Motor vehicle claims: If the person committed a crime in the course of causing the accident, he or she may be charged with a criminal offense; i.e. DWI, DUI or Careless and Negligent Driving.
If no crime was committed, usually the person at fault gives a statement to the police and contacts his or her insurance company, usually that person has very little to do with your claim. The greater majority of these cases are settled out of Court. If settlement is not reached and a lawsuit is filed, the person at fault will normally have to cooperate with the insurance company's lawyer, such as answering written discovery, appear at a deposition as well at all required Court proceedings.
Premises Liability: In the vast majority of premises injury claims; after notifying the liability insurance carrier the owner has little or nothing to do with your claim. However, if a commercial premises is involved and a code violation has occurred, the owner will likely be compelled to take action to comply with the code.
How long will it take to settle my claim?
To a large degree, it depends on how soon you reach your maximum medical improvement from your injuries. In order to properly evaluate your injuries your attorney needs to know what effect your injury has had on you. How it has affected your ability to earn a living? How much have you lost in wages and what is the total of your medical expenses? Are you able to engage in daily living activities and recreational activities as you did before the accident? These and many other questions can only be answered after your injury has healed or has gotten as good as it is going to get.
Once you reach your maximum medical improvement, your attorney will then evaluate your claim and make a demand for settlement on the insurance company. From that point, it may take two to four months to settle your claim. If a satisfactory settlement cannot be reached, then a lawsuit will be filed. From that point, it depends on what County or jurisdiction you are in, but you can expect at least one to two years before your case will be tried.
If I do have to file a lawsuit, does that mean my case won't settle and I will have to go to trial?
No, in fact greater than 90% of the suits filed are settled out of Court. Most jurisdictions are supporting of the use of Alternative Dispute Resolution techniques before your case is tried. Chances are your case will go through a mediation session before your trial date. This is a very successful technique that resolves most cases. Also, settlement negotiations will likely continue after suit is filed between your attorney and the attorney representing the insurance company.
How long do I have to bring a claim for my injuries and losses I incurred?
Generally, you have three years from the date of your injury to file suit. If you fail to file within that time, the law will bar your claim. There are some recognized exceptions to this, for example, if you are a minor, you have three years from the date you turn 18 years of age to file suit, after that your claim is barred. This is what is referred to as the Statute of Limitations.
Work Place Injury
How do I get workers’ compensation benefits for an injury that’s just occurred?
First, you need to report your injury to your employer as soon as you become aware of the injury. Next, you need to get medical assistance. Your employer has the duty to report the injury and provide your medical records to the Vermont Department of Labor. This notification of injury to the Department of Labor along with the records documenting your medical treatment is the first step in accessing workers’ compensation benefits.
Can my employer fire me?
If your work related injury has prevented you from returning to your job and you continue to undergo treatment for your injury, your employer may not fire you. If you recover from your injury within two years, the employer must reinstate you in the first available position that is suitable given your position at the time of the injury and your current physical condition. However, you must keep the employer informed of your continuing interest in returning to the job, your recovery and any changes in mailing address. If you are likely to be out of work for more than two years due to your work related injury, we strongly encourage you to contact a workers’ compensation attorney due to the fact that it is likely that you have a permanent injury. In that case you may be entitled to additional compensation and you may benefit from the assistance of an attorney in presenting your claim.
What do I do if the Department of Labor denies my claim for workers’ compensation benefits?
You have the right to appeal a denial of benefits for workers’ compensation. The Department of Labor has an appeals process that allows you to present evidence that shows that you were injured on the job and you are entitled to benefits. You may represent yourself through the appeals process and any hearings held by the Department of Labor. However, we strongly encourage you to talk with a workers’ compensation attorney to determine whether you would benefit from the representation of an attorney. The Vermont Department of Labor website contains information and forms to initiate the appeals process.
Do I need a lawyer?
There is no requirement to have an attorney represent you in accessing workers’ compensation benefits. Moreover, an attorney can never guarantee any outcome for a client. If an attorney promises a particular outcome, you should look for another attorney! However, clients generally benefit from the experience and knowledge provided by a lawyer. Our aim is to makes sure you’re accessing the workers’ compensation benefits that you’re entitled. We encourage you to contact us so that we can discuss your claim and determine whether Kissane can help you.
Do I need a lawyer in a real estate transaction?
If you are purchasing real estate, it is always advisable to have an attorney represent you. An attorney will: assist you in forming a purchase contract (unless you are dealing with a realtor) conduct a title search in the town land records to make sure that the property is free of liens and other encumbrances on title; review the seller’s transfer documents to make sure the are complete and in the proper form; organize and conduct the closing and explain loan documents to you.
If you are selling real estate, an attorney can prepare your transfer documents to make sure they are in the proper form, advise you of any permits you may need and prepare the tax forms that are associated with selling real estate.
Do I need a written contract to buy a property?
A verbal promise to sell real estate is, in most cases, unenforceable. Real estate contracts are required by law to be in writing, otherwise the agreement may not be binding.
What kind of permits or approvals might I need if I am selling?
In the typical real estate transaction, you will need one or more of the following:
- For new construction, a building permit, residential building energy standards (RBES) certificate, wastewater permit and (for drilled wells) a potable water supply permit.
- For new developments, zoning and subdivision approval from the town or city, possible Act 250 land use permit, stream alteration permit, stormwater discharge and other environmental permits.
- For older homes, lead paint disclosure (for pre-1978 construction).
- For condo units or duplexes, a Department of Fire Safety Inspection.
- For any improved property, a zoning certificate of compliance.
- For non-resident sellers, a Non-resident tax withholding form.
- For persons selling non-primary residence held less than six years, a land gains tax return and withholding return.
What is Title Insurance, and why do I need it?
First, there are two types of title insurance policies, owners’ policies and lenders’ policies. Lender policies are required by banks making mortgage loans, and they only protect the bank in the event of a title issue. Owners’ policies protect the owner in the event there is ever a dispute over your title. Even if an attorney does a proper title search, there are many types of problems that can result in a claim against your title. For example, if a document could not be found because it was misindexed, or a document was forged or signed by someone who did not have legal capacity to sign it. There are potential Native American claims, ancient roads and other problems that are not disclosed in the land records. Also, attorneys do not visually inspect a property, so there may be problems with right of way locations or other physical aspects of the property. For the relatively small one-time premium, an owner’s policy is almost always a good idea.
What happens to my estate if I don’t have a will?
If a person dies without a will, state laws determine who will inherit the estate. The Probate Court will decide who handles your estate (the “Administrator”), and who will be appointed guardian of any minor children you may have. Generally, your entire estate will pass to your spouse if he or she survives you, except in second marriage situations where there are children from a previous marriage. If not, it will pass to your biological and adopted children (but not step-children). If you have no surviving spouse or children, the estate passes in the following order: parents; in none, then to siblings; if none, then to grandparents; if none, then to next nearest kin. Having a will allows you to choose who will manage your estate and who will inherit your property.
Does having a will allow me to avoid probate?
No. There are ways to avoid probate, but a will requires probate administration to be effective.
Is probate something I should try to avoid?
It depends. If you have a small family that gets along well, it may help save time and money if your affairs can be arranged to avoid probate. However, there are situations in which having the Probate Court oversee the handling of your estate can be very useful, especially if there is a possibility of discord among family members. There may be other technical reasons, involving tax planning or potential liability, for opting to go through Probate.
Will my family have to pay estate taxes after my death?
Estate taxes depend on the value of your estate. For 2011-12, the federal estate tax only applies to estates over $5 million. Vermont estate tax applies to estates over $2.75 million. For individuals with high net worth, it is important to discuss this subject with a professional. The rules pertaining to what assets are included in your estate and how they are valued are complex, and can be difficult to understand.
Is a trust a good idea for me?
Trusts can be very useful estate planning tools, even for people with modest assets. They can allow you take advantage of certain tax provisions, avoid probate, simplify administration of your estate, insure privacy and manage assets for young heirs well after they reach the age of majority (18).
I have a parent who needs help handling her affairs, what can I do?
A Power of Attorney can allow you to handle a parent’s financial affairs as they reach an advanced age. Advance health care directives can also allow a family member to assist an individual with medical decisions, funeral arrangements, organ donation and end of life care. If a person has already be found to be incompetent, it may be necessary to apply to the Probate Court for an adult guardianship. This would be a good opportunity to make sure your parent’s assets are titled in a way that will be easy to administer once they pass away.
What will happen to my property if I have to go into a nursing home?
Unless you have long term care insurance or qualify for Medicaid, you will be required to spend down your savings until you meet Medicaid requirements, which are quite low. There are steps you can take to protect some assets, including your home, but they involve careful planning.
What can I do to make it easier for my children to handle my estate after I am gone?
It is important to review all of the different assets you own, and how those assets are titled. For example, a joint checking account will automatically pass to the surviving joint owner. Life insurance and qualified retirement accounts can have named beneficiaries that will receive those funds directly, and not through probate. You should have a central spot where you keep all of the important papers your children will need after you pass, including: your will, any life insurance policies, copies of any deeds to real estate, bank or investment account statements to indicate where your funds are located. Each year, thousands of dollars in property end up on the State Treasurer’s abandoned property list because no one knew the account existed when a relative died.
My parent just passed away, what do I do now?
This can be a difficult time, both emotionally and logistically. Once funeral arrangements have been completed, it will be necessary to locate the will, if one exists. If a parent has any assets, which means cash, savings, personal or real property, it may be necessary to file a petition with the Probate Court to open an estate. Depending on the type of assets a person has, or how those assets are titled, probate may not be necessary. In any event, it will be necessary to take several steps to wind up a person’s affairs; everything from notifying Social Security, to collecting life insurance policies and gathering bills for payment. It may be necessary to search the home to make sure that you have all of the necessary documents you need to proceed.
I am starting a new business, what kind of advice do I need?
To be successful, every business owner should have a team of professionals they can rely on to help them avoid common pitfalls. At a minimum, you should have an attorney, an accountant and an insurance agent. This kind of team can make sure you have the right kind of business entity, make you aware of any licenses and permits you may need, help you set up your accounts and make sure you have the right kind of insurance for your needs. As you grow, your needs will eventually include a retirement plan consultant, financial planner and advertising firms.
What is a "business entity", and why do I need one?
A business entity is the legal form in which you conduct your business. It can range from a sole proprietor, partnership, corporation and limited liability company (LLC), with variations on most of the above. There is no "one size fits all" when it comes to selecting your entity choice. Different companies will require different sets of attributes depending on their size, number of owners and employees, liability risks and tax optimization.
What is the difference between these entities?
A sole proprietorship is the simplest form of business ownership, which involves a single business owner who is personally liable for any claims against the business. This means that the personal assets of the business owner could be exposed to those claims. In a general partnership, each partner is not only personally liable for his own claims, but claims against the other partners as well. A corporation has an identity separate from that of its owners, so it can shield its owners from personal liability. An LLC can also shield owners from liability, but it is often simpler, more flexible and easier to maintain than a corporation.
Which entity is best for me?
That will depend on a discussion between you, your accountant and your lawyer. While personal asset protection is important, there may tax-related concerns that will help govern your choice.
Will I need any special permits or approvals to start my business?
That, of course, depends on the type of business. However, there are several areas you may need to look into, such as:
-Professional licenses: Most professions require licenses from the governing state agency.
-Zoning and planning permits: Before you start your business, you will want to make sure it is a type that is allowed by the zoning bylaws in your town.
-State land use and environmental permits (including large farm operations permits): Some businesses will also require an Act 250 permit depending on the type of business, how it impacts the environment and the amount of land involved. In all, there are 45 different state permits in such areas as Wastewater Management; Water Supply; Air Pollution; Watershed Management and Hazardous Wastes.
-Restaurant and liquor licenses;
-Tradename registration: If you do business by a name other than your own, you will want to protect it by registering with the Secretary of State in each state where you do business. If you are a corporation or LLC and do business in other states, you will need to register as a foreign entity in those states.
-Copyright protection, Patents and Trademark Registration. All of these come under the general heading of “Intellectual Property”, which requires specialized advice to protect these valuable assets.
-Tax department business account number, which is used for your tax filings (sales and use tax, corporate income tax, employee withholding taxes).
-Department of Labor account number for unemployment filings.
-Federal tax ID number: Necessary for most federal income tax filings.