On Nov 19, 8:31 am, Stan <stanle...@hotmail.com> wrote:
> A synagogue provided secondary liability coverage for parents driving
> other children to youth group activities, and required each driver to
> have a minimum liability coverage that was above the state minimum.
> They didn't ask if the driver had at least 25/50 (for example)
> personal liability coverage, but rather required they list the actual
> amount of insurance on their internal "driver qualification" form.
> One of the parents, an insurance company executive, stated that they
> should not reveal this info.
Your situation actually embraces both the contexts I discussed in my previous post.
As between the drivers and the synagogue they were (volunteer) contractors for, the synagogue _required_ them to furnish evidence of coverage in excess of minimum legal limits. The synagogue had every right to do so, and were smart to do so. Those who refused to reveal such information could simply be barred from acting as volunteer drivers, just as a subcontractor who refuses to provide a certificate of insurance to the one who proposes to hire him is going to find himself not getting many contracts.
But the insurance guy was also right, and also smart, to tell those drivers not to reveal their higher-than-minimum coverage, OR the existence of the secondary excess policy provided by the synagogue, to the other parties at the scene of a crash. The carpool drivers were not legally required to disclose such information at the scene, There's no sense adding fuel to the potential fire, as it were, by giving any incentive to victims (real or imagined) to either fabricate or exaggerate the extent of their injuries simply because they have been led to believe there is a "deep pocket" out there who will uncritically pay their damages. N.b. most people who sue don't base their decision to file a claim on such dishonest criteria, and are genuinely injured. But why tempt those who aren't?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Tuesday, August 21, 2012
Megan Meier - Myspace suicide case
On Nov 19, 8:32 am, Deborah Speer <satrn...@sbcglobal.net> wrote:
> Why can't the mother who caused the death of 13-year old Megan Meier by
> posing as another 14-year old to spy on her neighbor be prosecuted in a
> civil court?
Who says she can't? If the victim's family has already or will consult a lawyer, he may find a way to argue that the hoaxer's conduct fits into a category that permits a jury finding of liability under existing MO law. Frex, maybe it constitutes the tort of intentional infliction of emotional distress (IIED). Whether a jury would find it to be so, I don't know. But it's certainly worth it for the family to consult a lawyer and see what their options are.
Just because they haven't sued yet doesn't mean they won't. Cyberspace torts are as you can guess a very new and uncertain area of the law, so I wouldn't be surprised if it took quite a bit of time to research a basis for suit, either under existing law or to build an argument for an extension of existing law to cover new forms of conduct. The tort of IIED, frex, didn't exist until somebody did something completely outrageous that wasn't covered by existing law, the victim of that outrageous conduct sued, lost at trial because there was no currently recognized legal basis for the claim, appealed, and finally got an appellate court to rule in the victim's favor, creating new law in their written, published appellate opinion to recognize such a tort and make such claims available to other similar victims without having to go thru all that. That's one main way the law evolves, through creative lawyering by those brave trial lawyers who are willing to go to bat for a victim who has clearly been wronged but appears to have little chance of success under current law.
> And why couldn't the FBI recover the complete text of the MySpace posts
> that were the cause of the young girl's death?
That's not a legal question, it's mainly a computer-tech question. So maybe the computer gurus on this group will have a better perspective than the lawyers, but I'll take a stab at it. But as a lawyer I can tell you that, first, we have to get as close as we can to the original witness' statements, not conclusory summaries, if we want to have any chance of guessing what really happened. I don't put much stock in blogs, since I have yet to find one I trust to be as reliable as traditional journalism and their info about such public matters is almost always second-hand, based on published news reports, often without citation or attribution so they cannot be cross-checked, and which become more and more garbled each time they are paraphrased and repeated. And the blogs you cite mainly refer back to the Fox News story (not much better IMO) you also cited, or the local paper that apparently first broke the story publicly. This Fox quote appears to be what you are asking about:
"Her father said he found a message the next day from Josh, which he said law enforcement authorities have not been able to retrieve. It told the girl she was a bad person and the world would be better without her, he has said."
Two of the blogs you cite contain links to what appears to be an article in a local paper in St. Charles County, MO where the incident occurred, and that article (which itself may have been the source of the Fox story as well) does contain a little more detail about the data-retrieval issue:
"Later that day, Ron opened his daughter's MySpace account and viewed what he believes to be the final message Megan saw - one the FBI would be unable to retrieve from the hard drive.
* * *
The Meiers say the matter also was investigated by the FBI, which analyzed the family computer and conducted interviews. Ron said a stumbling block is that the FBI was unable to retrieve the electronic messages from Megan's final day, including that final message that only Ron saw."
It sounds from those 2 accounts like law enforcement personnel simply were unable to recover, FROM THE VICTIM'S family computer, the final message from "Josh" that Megan's father saw on the screen after Megan killed herself. One possible explanation is that the father did something inadvertent -- such as turning off the computer, or closing the open Myspace window he saw before the message had been saved to a permanent storage medium such as the hard disk -- that lost whatever evidence was being displayed on their computer screen in volatile memory. But if there is a backup or server file somewhere with "Josh's" postings still on it, I see no reason why the FBI or even local police could not access that data, if they filed for an appropriate warrant claiming it was evidence of specific criminal activity. This is quite different from, e.g. random and warrantless monitoring of ongoing communications of people who have not been charged with or even suspected of any particular crime, as part of the "war on terror".under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (I refuse to call it by its evilly propagandistic short "popular" acronym).
Now, getting back to your original, legal question, CRIMINAL liability is a very different matter from civil liability. In USA, one cannot be convicted of a crime that was not against the law at the time the act was committed; the Constitution prohibits such "ex post facto" laws. An appellate ruling in a civil case, on the other hand, can create new law to cover what the civil defendant did, just like a civiil statute can be specifically made by the legislature to have retroactive effect in appropriate circumstances.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Why can't the mother who caused the death of 13-year old Megan Meier by
> posing as another 14-year old to spy on her neighbor be prosecuted in a
> civil court?
Who says she can't? If the victim's family has already or will consult a lawyer, he may find a way to argue that the hoaxer's conduct fits into a category that permits a jury finding of liability under existing MO law. Frex, maybe it constitutes the tort of intentional infliction of emotional distress (IIED). Whether a jury would find it to be so, I don't know. But it's certainly worth it for the family to consult a lawyer and see what their options are.
Just because they haven't sued yet doesn't mean they won't. Cyberspace torts are as you can guess a very new and uncertain area of the law, so I wouldn't be surprised if it took quite a bit of time to research a basis for suit, either under existing law or to build an argument for an extension of existing law to cover new forms of conduct. The tort of IIED, frex, didn't exist until somebody did something completely outrageous that wasn't covered by existing law, the victim of that outrageous conduct sued, lost at trial because there was no currently recognized legal basis for the claim, appealed, and finally got an appellate court to rule in the victim's favor, creating new law in their written, published appellate opinion to recognize such a tort and make such claims available to other similar victims without having to go thru all that. That's one main way the law evolves, through creative lawyering by those brave trial lawyers who are willing to go to bat for a victim who has clearly been wronged but appears to have little chance of success under current law.
> And why couldn't the FBI recover the complete text of the MySpace posts
> that were the cause of the young girl's death?
That's not a legal question, it's mainly a computer-tech question. So maybe the computer gurus on this group will have a better perspective than the lawyers, but I'll take a stab at it. But as a lawyer I can tell you that, first, we have to get as close as we can to the original witness' statements, not conclusory summaries, if we want to have any chance of guessing what really happened. I don't put much stock in blogs, since I have yet to find one I trust to be as reliable as traditional journalism and their info about such public matters is almost always second-hand, based on published news reports, often without citation or attribution so they cannot be cross-checked, and which become more and more garbled each time they are paraphrased and repeated. And the blogs you cite mainly refer back to the Fox News story (not much better IMO) you also cited, or the local paper that apparently first broke the story publicly. This Fox quote appears to be what you are asking about:
"Her father said he found a message the next day from Josh, which he said law enforcement authorities have not been able to retrieve. It told the girl she was a bad person and the world would be better without her, he has said."
Two of the blogs you cite contain links to what appears to be an article in a local paper in St. Charles County, MO where the incident occurred, and that article (which itself may have been the source of the Fox story as well) does contain a little more detail about the data-retrieval issue:
"Later that day, Ron opened his daughter's MySpace account and viewed what he believes to be the final message Megan saw - one the FBI would be unable to retrieve from the hard drive.
* * *
The Meiers say the matter also was investigated by the FBI, which analyzed the family computer and conducted interviews. Ron said a stumbling block is that the FBI was unable to retrieve the electronic messages from Megan's final day, including that final message that only Ron saw."
It sounds from those 2 accounts like law enforcement personnel simply were unable to recover, FROM THE VICTIM'S family computer, the final message from "Josh" that Megan's father saw on the screen after Megan killed herself. One possible explanation is that the father did something inadvertent -- such as turning off the computer, or closing the open Myspace window he saw before the message had been saved to a permanent storage medium such as the hard disk -- that lost whatever evidence was being displayed on their computer screen in volatile memory. But if there is a backup or server file somewhere with "Josh's" postings still on it, I see no reason why the FBI or even local police could not access that data, if they filed for an appropriate warrant claiming it was evidence of specific criminal activity. This is quite different from, e.g. random and warrantless monitoring of ongoing communications of people who have not been charged with or even suspected of any particular crime, as part of the "war on terror".under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (I refuse to call it by its evilly propagandistic short "popular" acronym).
Now, getting back to your original, legal question, CRIMINAL liability is a very different matter from civil liability. In USA, one cannot be convicted of a crime that was not against the law at the time the act was committed; the Constitution prohibits such "ex post facto" laws. An appellate ruling in a civil case, on the other hand, can create new law to cover what the civil defendant did, just like a civiil statute can be specifically made by the legislature to have retroactive effect in appropriate circumstances.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Derivative movie rotoscoping, part 2
On Nov 17, 7:49 am, Mike <prabb...@shamrocksgf.com> wrote:
> That got me to wondering about another hypothetical. You take a
> photograph of a mountain. I take that picture and making a painting
> from it (not by tracing but by simply looking at the picture and
> painting the mountain.)
You're making a derivative work which is based on copying someone else's original creative work into another medium. Sorry, that's infringement if you don't have permission from the original copyright holder.
> I could have EASILY painted the mountain by standing with
> an easel, etc. at the same place where you stood and painted it
> directly.
But you _DIDN'T_ do that. You painted a copy of his photo instead.
Non-legal aside: Apparently you are oblivious to the fact that a photo freeze-captures a unique moment in time and space, something that will never be repeated, and that the scene the camera was aimed at is constantly changing. So actually, you CAN'T go to the place where the photographer took his photo and get the exact same result from his original, natural inspiration. If I went to Yosemite, pointed my camera (or painter's easel) at Half Dome and took a bunch of snapshots, they would not come out looking anything at all like something Ansel Adams may have taken, even if I stood at the exact same spot as the master when I clicked the button. IIRC Adams would often spend hours at the scene waiting to get everything just right, before making an exposure. The constantly moving and changing branches of trees, angle of the sunlight based on the time of day and time of year, the pattern of clouds, the focal length and exposure time, the choice of film and emulsion and developing methods, all play a part in getting exactly the composition the artist wants to include in his photo and make it a unique original. Even in more mundane contexts, e.g. fashion photography in a studio, the pro photographer may take hundreds of shots of basically the same scene (girl, clothes, prop) to get just one or two that have that "je ne seis quoi" that qualifies it to be printed in a magazine. The rest are basically outtakes, trash. And you want to get to the charismatic, attention-grabbing final result without going thru all that work the original artist did, just by copying the best, most appealing fraction of his work? How is that not infringement?
> Could it be argued that I did not infringe on your photo?
Could it? Sure, you can argue anything you want. But IMO that argument would not be reasonable, nor would it likely be successful if you got sued for infringement.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> That got me to wondering about another hypothetical. You take a
> photograph of a mountain. I take that picture and making a painting
> from it (not by tracing but by simply looking at the picture and
> painting the mountain.)
You're making a derivative work which is based on copying someone else's original creative work into another medium. Sorry, that's infringement if you don't have permission from the original copyright holder.
> I could have EASILY painted the mountain by standing with
> an easel, etc. at the same place where you stood and painted it
> directly.
But you _DIDN'T_ do that. You painted a copy of his photo instead.
Non-legal aside: Apparently you are oblivious to the fact that a photo freeze-captures a unique moment in time and space, something that will never be repeated, and that the scene the camera was aimed at is constantly changing. So actually, you CAN'T go to the place where the photographer took his photo and get the exact same result from his original, natural inspiration. If I went to Yosemite, pointed my camera (or painter's easel) at Half Dome and took a bunch of snapshots, they would not come out looking anything at all like something Ansel Adams may have taken, even if I stood at the exact same spot as the master when I clicked the button. IIRC Adams would often spend hours at the scene waiting to get everything just right, before making an exposure. The constantly moving and changing branches of trees, angle of the sunlight based on the time of day and time of year, the pattern of clouds, the focal length and exposure time, the choice of film and emulsion and developing methods, all play a part in getting exactly the composition the artist wants to include in his photo and make it a unique original. Even in more mundane contexts, e.g. fashion photography in a studio, the pro photographer may take hundreds of shots of basically the same scene (girl, clothes, prop) to get just one or two that have that "je ne seis quoi" that qualifies it to be printed in a magazine. The rest are basically outtakes, trash. And you want to get to the charismatic, attention-grabbing final result without going thru all that work the original artist did, just by copying the best, most appealing fraction of his work? How is that not infringement?
> Could it be argued that I did not infringe on your photo?
Could it? Sure, you can argue anything you want. But IMO that argument would not be reasonable, nor would it likely be successful if you got sued for infringement.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
insurance bad faith liability, part 2
On Nov 16, 10:18 am, Stan <stanle...@hotmail.com> wrote:
> YEARS ago, I read about this exact situation, and from the limited
> newspaper coverage I read at the time, the insured was successful in
> his subsequent lawsuit against his insurance company. What was
> mentioned was that one of the allegations in the lawsuit against the
> insurance company was that they based on their decision to go to trial
> on a presumption that the most it would cost them was zero additional
> damages if they lost, and as such, they completely failed to consider
> their insured's interest.
That sounds like you read about a successful insurer-bad-faith claim as discussed in my previous reply post on this thread. The insurer does have an obligation to exercise good faith in trying to protect its insured -- that's what the insured is paying premiums for, after all.
> But on the other hand, and I wouldn't be
> surprised if this were the insurer's justification, by telling the
> injured party what his insurance limit is, Joe isn't exactly
> protecting his insuror's interest,
No, the protection obligation generally runs the other direction. Joe does have certain duties under the policy as a condition of coverage, such as cooperation in the insurer's investigation of the facts, etc. but Joe is not obligated to help the insurer play "hide the pea" if Joe is in fact at fault and willing to admit it. Cooperation with the insurer does not require Joe to lie, or to disagree with or hide his own feelings about what happened, and it is perfectly reasonable for Joe to want his insurer to just pay the claim and make the problem go away, which (as noted above) is the whole reason why he paid his premiums and why insurance is legally considered a valuable form of protection against risk rather than a scam and a crooked racket. The insurer is supposed to honestly assess the risk and honestly evaluate the claim and to pay legitimate claims without making both the claimant, and the poor insured, jump thru agonizing hoop after hoop to get there.
On your other point, I don't believe in any state today there is an explicit _prohibition_ on the insured telling an opposing claimant what his coverage limit is. To the contrary, in many states, there is a requirement to _reveal_ coverage limits at an early pre-suit date when asked. And in virtually every state AFAIK the coverage limits are discoverable and must be disclosed after suit is filed.
The social policy rationale behind this preference for revealing limits is that knowing what the limits are will encourage both parties toward out-of-court settlement -- which the law prefers. OTOH if the coverage amount were kept secret until after trial, the claimants would more often be forced to take a case to trial and get a verdict because they couldn't be sure that an offer was fair -- how could they, if they didn't know how good their chances were of ever collecting on a larger amount than the offer. Although in an appropriate case, with catastrophic damages, known low coverage limits, and a defendant with substantial assets, the claimant's attorney may make the strategic decision that trial is worth the risk rather than accepting a policy limits offer, in the vast majority of cases it is just not worth the risk to the claimant and the claimant instructs his attorney to accept a limits offer.
> and in fact is offering to settle with money that isn't his to begin with.
I beg to differ, if I understand you right. The insurer's money isn't Joe's to play with, but the liability insurer _is_ obligated to put up its money to protect Joe if a claim is made against Joe. That may be a subtle difference, but in most cases the outcome is the same. True, Joe cannot tell the person he just crashed into, "I'll give you $20,000 (or whatever his policy limit is) if you don't sue me" and then expect the insurer to pick up the bill; such an offer would not bind the insurer. Part of the problem is that Joe, unlike professional insurance adjusters and professional plaintiff attorneys, has no idea what the case against him may really be worth. But the insurer, stepping into Joe's shoes, _does_ have a pretty good idea, and also has the duty to Joe to try to settle for an amount within (hopefully under) policy limits, if that can reasonably be done.
> (As an aside, years ago an
> insurance company executive advised that we should never reveal our
> liability coverage;
In what context?
In talking to the other party at the scene of auto crashes? Sure, there's no need to reveal limits at that point; perhaps your speaker just meant to stress that it's a good idea to only provide at the scene the bare information the law requires (name, address, registration, driver's license, name and policy # of insurance company) and leave it at that, to avoid making any potentially damaging admissions. That is not a legal requirement, but a strategic desideratum that this insurance executive is trying to get his insureds to comply with, for their own protection and for his. A subtle difference, yes?
In subcontracting or consulting contracts? It's far more common for a customer to require the contractor, at time of contracting and before the work is done, to provide a certificate of insurance which evidences that the contractor carries insurance in at least a certain stated coverage amount.
Maybe you could clarify what context you meant.
> I wonder if any such prohibition is now buried in
> the fine print of insurance policies?)
I strongly doubt it, given that law favors revealing this information at the appropriate time.
Even in the car-crash example, where the "smart" driver would avoid making harmful admissions to the other party, the insurer cannot disclaim coverage on grounds of lack of cooperation if the insured _does_ make a harmful admission at the scene. Such statements are commonly made, to the chagrin of insurance executives, and are a goldmine for cross-examination at trial.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> YEARS ago, I read about this exact situation, and from the limited
> newspaper coverage I read at the time, the insured was successful in
> his subsequent lawsuit against his insurance company. What was
> mentioned was that one of the allegations in the lawsuit against the
> insurance company was that they based on their decision to go to trial
> on a presumption that the most it would cost them was zero additional
> damages if they lost, and as such, they completely failed to consider
> their insured's interest.
That sounds like you read about a successful insurer-bad-faith claim as discussed in my previous reply post on this thread. The insurer does have an obligation to exercise good faith in trying to protect its insured -- that's what the insured is paying premiums for, after all.
> But on the other hand, and I wouldn't be
> surprised if this were the insurer's justification, by telling the
> injured party what his insurance limit is, Joe isn't exactly
> protecting his insuror's interest,
No, the protection obligation generally runs the other direction. Joe does have certain duties under the policy as a condition of coverage, such as cooperation in the insurer's investigation of the facts, etc. but Joe is not obligated to help the insurer play "hide the pea" if Joe is in fact at fault and willing to admit it. Cooperation with the insurer does not require Joe to lie, or to disagree with or hide his own feelings about what happened, and it is perfectly reasonable for Joe to want his insurer to just pay the claim and make the problem go away, which (as noted above) is the whole reason why he paid his premiums and why insurance is legally considered a valuable form of protection against risk rather than a scam and a crooked racket. The insurer is supposed to honestly assess the risk and honestly evaluate the claim and to pay legitimate claims without making both the claimant, and the poor insured, jump thru agonizing hoop after hoop to get there.
On your other point, I don't believe in any state today there is an explicit _prohibition_ on the insured telling an opposing claimant what his coverage limit is. To the contrary, in many states, there is a requirement to _reveal_ coverage limits at an early pre-suit date when asked. And in virtually every state AFAIK the coverage limits are discoverable and must be disclosed after suit is filed.
The social policy rationale behind this preference for revealing limits is that knowing what the limits are will encourage both parties toward out-of-court settlement -- which the law prefers. OTOH if the coverage amount were kept secret until after trial, the claimants would more often be forced to take a case to trial and get a verdict because they couldn't be sure that an offer was fair -- how could they, if they didn't know how good their chances were of ever collecting on a larger amount than the offer. Although in an appropriate case, with catastrophic damages, known low coverage limits, and a defendant with substantial assets, the claimant's attorney may make the strategic decision that trial is worth the risk rather than accepting a policy limits offer, in the vast majority of cases it is just not worth the risk to the claimant and the claimant instructs his attorney to accept a limits offer.
> and in fact is offering to settle with money that isn't his to begin with.
I beg to differ, if I understand you right. The insurer's money isn't Joe's to play with, but the liability insurer _is_ obligated to put up its money to protect Joe if a claim is made against Joe. That may be a subtle difference, but in most cases the outcome is the same. True, Joe cannot tell the person he just crashed into, "I'll give you $20,000 (or whatever his policy limit is) if you don't sue me" and then expect the insurer to pick up the bill; such an offer would not bind the insurer. Part of the problem is that Joe, unlike professional insurance adjusters and professional plaintiff attorneys, has no idea what the case against him may really be worth. But the insurer, stepping into Joe's shoes, _does_ have a pretty good idea, and also has the duty to Joe to try to settle for an amount within (hopefully under) policy limits, if that can reasonably be done.
> (As an aside, years ago an
> insurance company executive advised that we should never reveal our
> liability coverage;
In what context?
In talking to the other party at the scene of auto crashes? Sure, there's no need to reveal limits at that point; perhaps your speaker just meant to stress that it's a good idea to only provide at the scene the bare information the law requires (name, address, registration, driver's license, name and policy # of insurance company) and leave it at that, to avoid making any potentially damaging admissions. That is not a legal requirement, but a strategic desideratum that this insurance executive is trying to get his insureds to comply with, for their own protection and for his. A subtle difference, yes?
In subcontracting or consulting contracts? It's far more common for a customer to require the contractor, at time of contracting and before the work is done, to provide a certificate of insurance which evidences that the contractor carries insurance in at least a certain stated coverage amount.
Maybe you could clarify what context you meant.
> I wonder if any such prohibition is now buried in
> the fine print of insurance policies?)
I strongly doubt it, given that law favors revealing this information at the appropriate time.
Even in the car-crash example, where the "smart" driver would avoid making harmful admissions to the other party, the insurer cannot disclaim coverage on grounds of lack of cooperation if the insured _does_ make a harmful admission at the scene. Such statements are commonly made, to the chagrin of insurance executives, and are a goldmine for cross-examination at trial.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Why mention locus delicti (place of the wrongdoing)
On Nov 16, 10:18 am, kastnna <kast...@auburnalum.org> wrote:
> On Nov 15, 7:11 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > Yes. The law of your state will determine this. Why don't foax tell
> > the group where they are? Laws differ from place to place. I feel
> > like a broken record
<snip>
> Completely off-topic, but we often don't say where we are from because
> we are ignorant and don't know what is and is not pertinent
> information. After the first time I posted, I learned it was important
> and have made it a point to include it. Many people, myself included,
> aren't (weren't) aware that laws vary so widely from state to state.
> Please forgive us and bear with us.
Consider it done. We are, after all, still reading and replying so it isn't all _that_ bothersome even to a curmudgeon like me despite occasional rants. And newbies are of course always welcome -- without the vitality of fresh viewpoints, the group would die out.
I guess what got to me is I had just read and responded to 2 posts in a row where this crucial tidbit of info was omitted, yours and another's. And in addition to just thinking out loud, I was not trying to directly berate you or anyone else for posting a serious question that deserved an answer even though vital info was omitted, but rather to provide a heads-up to other newbies who, hopefully, upon browsing the group, would maybe see mine or similar reply messages and realize that the location they are writing from and the location where events occurred could make a difference to the answer they should expect, _ before_ posting their own query. Or they could just read the FAQ, but maybe that's too much to expect unless they are already Usenet-savvy. I realize it's hard to tell what you don't know if you don't know it.
> Again, on behalf of all newbies and non-lawyers, I apologize.
No apology needed. You didn't do anything wrong. I just took your post as a jumping-off point for a mild rant.
> Hopefully, if you keep chastising, some of the "lurkers" will become
> aware of its importance before posting.
Yes, that was also my thinking. Regards,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> On Nov 15, 7:11 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > Yes. The law of your state will determine this. Why don't foax tell
> > the group where they are? Laws differ from place to place. I feel
> > like a broken record
<snip>
> Completely off-topic, but we often don't say where we are from because
> we are ignorant and don't know what is and is not pertinent
> information. After the first time I posted, I learned it was important
> and have made it a point to include it. Many people, myself included,
> aren't (weren't) aware that laws vary so widely from state to state.
> Please forgive us and bear with us.
Consider it done. We are, after all, still reading and replying so it isn't all _that_ bothersome even to a curmudgeon like me despite occasional rants. And newbies are of course always welcome -- without the vitality of fresh viewpoints, the group would die out.
I guess what got to me is I had just read and responded to 2 posts in a row where this crucial tidbit of info was omitted, yours and another's. And in addition to just thinking out loud, I was not trying to directly berate you or anyone else for posting a serious question that deserved an answer even though vital info was omitted, but rather to provide a heads-up to other newbies who, hopefully, upon browsing the group, would maybe see mine or similar reply messages and realize that the location they are writing from and the location where events occurred could make a difference to the answer they should expect, _ before_ posting their own query. Or they could just read the FAQ, but maybe that's too much to expect unless they are already Usenet-savvy. I realize it's hard to tell what you don't know if you don't know it.
> Again, on behalf of all newbies and non-lawyers, I apologize.
No apology needed. You didn't do anything wrong. I just took your post as a jumping-off point for a mild rant.
> Hopefully, if you keep chastising, some of the "lurkers" will become
> aware of its importance before posting.
Yes, that was also my thinking. Regards,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Insurance bad faith liability
On Nov 15, 8:12 am, "Robert11" <rgs...@notme.com> wrote:
> Joe was involved in an auto accident (Mass.) and is being sued for pain and
> suffering, etc.
> Joe agrees that he was at fault.
I believe MA is a "comparative fault" state. Even if Joe believes he did wrong, that still does not mean he was 100% wrong and the injured victim 100% in the right. Reality is usually not that simple. Of course, you say nothing about the facts of the crash (it's a hypothetical, right?) so we can't poke holes in Joe's factual _conclusion_ that he is 100% at fault, by looking at the _underlying_ facts that may provide contradictory indications.
> His auto policy limits will cover what the party is asking.
He was smart to carry high enough limits to meet expected losses. Those who carry only the legally required minimum are in most states woefully under-insured. But even a high-limits policy can't guarantee that a jury won't award even more than that in a particular case -- it's rare, but does happen (which is why it makes the news when it does).
> Joe wants them to pay, and be done with it, of course.
But if they do, his rates may go up, so his self-interest cuts both ways. In any event, that decision is usually up to the insurance company to make -- only in very high-end-type liability situations (medical malpractice, frex) do insurance policies give the insured any formal say in whether to settle or not.
> However, the insurance company doesn't want to pay what is being asked, and
> is agreeing to go to trial.
You've got that backwards. The ins. co. isn't "agreeing" to go to trial; rather, trial is the ultimate result that will inevitably occur if they _don't_ agree to settle _before_ trial. It's settlement, not trial, that requires a voluntary agreement of the parties. The law is there simply to provide a final, backed-by-force-of-the-state arbiter of those disputes which the parties cannot resolve themselves, out of court.
As an aside, those "tort reformers" who decry the "overloading" of our courts with civil lawsuits ought to keep this in mind. It is the defendant, not the plaintiff, who controls whether a case or claim has to go to trial or not. The defendant (thru his insurer) can say "yes" to an agreed, negotiated amount at any time, and the case is over. If the defendant (thru his insurer) insistently says "no" even when all reasonable indications are that saying "yes" to some compromise figure would make the most sense, the plaintiff has literally no choice other than to take the case all the way to trial, and let the judge or jury decide both liability ("who wins") and damages ("how much").
Some insurers, I might add, say "no" even when they ought to say "yes" simply to save their _own_ pocketbooks in the long run, hoping they will win more often than they lose even if they hang an occasional loser like Joe out to dry, especially when they have already "poisoned the well" by tort-reform propaganda that makes typical jurors highly skeptical of any personal injury claim and less inclined to award reasonable sums for pain and suffering than they used to be (and it is quite common for even a successful plaintiff to be awarded only his medical expenses and lost wages, with a big fat zero for pain and suffering).
As a further, even more remote aside, isn't it peculiar how in war, only the loser can declare a war to be over, by surrendering? The stronger side cannot simply declare "mission accomplished" and go home. As long as the underdogs keep fighting, the war is not over.
> At the trial, Joe is found guilty,
The more accurate term is, he was found "liable" for civil negligence resulting in damages to the particular plaintiff. One is found "guilty" of a criminal offense against the state. There is not supposed to be any moral judgment in merely being found "liable"; it's just an unfortunate mistake, not a crime. If you accidentally knock a knicknack off a shelf at a pottery store and break it, you are liable to pay the owner for it, but that doesn't mean you are a bad person. OTOH if you come into the store swinging a baseball bat and wreck the inventory, to intimidate the owner into paying "protection", frex, that's a different story.
> and the other party is awarded More than
> the coverage in his policy.
As noted above, this is rare, but does sometimes happen.
> So, what happens:
As usual, "it depends."
> Could he have insisted that since his policy amount was adequate, the
> insurance company should have paid what was initially asked for ?
The insurance co. has a good faith obligation to try to do that. If they didn't at least make an honest effort to do so, Joe might have a bad faith claim against them. But that is a tort claim against his own insurer, not a contract claim under his policy.
The odd twist in your hypo is that judgment was awarded for even more than the plaintiff asked for in his initial complaint. This is extremely rare and in some states the court would not even grant it, but would limit the plaintiff to the amount he originally asked for when filing suit (plus interest, costs, etc. and any after-accrued liabilities in a contract claim). In other states, such as MD, a complaint's "ad damnum" (amount asked for in judgment) can be freely amended, even after the verdict, to conform to the evidence and the verdict.
Unless I misunderstand what you mean by "what was initially asked for". In the course of pre-suit negotiations, a claimant will start from an initial negotiating demand, in anticipation of eventually reaching some compromise with the (usually lower) initial offers from the insurer; but that does not limit the amount the claimant can ask for in the ad damnum of his complaint when he does eventually have to file suit (if the insurer is unwilling to settle first).
In a case with large damages, a plaintiff will usually ask for "policy limits" as an initial negotiating position. If that is only a small fraction of the total damages, the claimaint is unlikely to be willing to go lower, because in doing so he would give up the possibility of winning an excess judgment (and which might leave the plaintiff's lawyer open to malpractice liability against his own client, for selling his case short)
When a complaint (suit) is filed in an amount _over_ policy limits, the insurer (in most states) is obligated to inform the insured of that fact, and also inform him of his right to obtain independent counsel to protect his interests. Even though the insurer retains and pays the lawyer who will actually try the case for defendant, defendant's independent counsel in an excess case can "oversee" the insurance lawyer and can also put pressure on the insurer to settle within policy limits. But none of that stuff is likely to happen if the ad damnum of the lawsuit's complaint is within policy limits; then, the whole thing is in the hands of the insurer.
> Was there any obligation for the insurance company to have settled up for
> an amount
> that was within his coverage ?
There's a duty to try, if it reasonably appeared likely the verdict could be for more than limits. The insurer, in every state AFAIK, has a duty to deal with its own insureds in good faith. If settlement within policy limits was a reasonable possibility and if liability is clear-cut enough that the insurer had no reasonable basis for refusing to attempt settlement, the poor (under-insured) defendant who got left holding the bag may have what's called a "bad faith" claim against his own insurance company, after a verdict in excess of his policy limits is handed to the plaintiff.
In practice, what often happens is, after the first trial of the underlying claim, the insured judgment debtor may "assign" his now-arisen bad-faith claim against the insurer to the victorious plaintiff, in exchange for a promise by the plaintiff not to execute on the excess judgment against any of debtor's personal assets other than his insurance coverage. The plaintiff (with that assignment agreement in hand) then tries to get the court to force the insurer to award him, as assignee of the original insured defendant, the damages that were caused _to_the_insured_ by the insurer's own tortious (bad faith) behavior, i.e. the amount that the insured debtor was found liable for in excess of policy limits. IOW, if the plaintiff does this right and gets lucky, the insurer may have to pay the full verdict even if it is in excess of policy limits.
> That it never should have gone to trial since his coverage was adequate, and
> therefore he should not have to be liable for the difference ?
That, in essence, is the basis for the insurer's bad faith liability to its insured: the insurer forced a case to go to trial where it never should have because if they were being reasonable they would have settled before trial, within policy limits.
But that doesn't mean "defendant is not liable for the difference". The verdict is what it is, and defendant is liable to the plaintiff whether or not he gets his insurer to cover the excess verdict. Indeed, the fact of that now-existing liability is an essential element of Joe's bad-faith claim against his insurer, since without that liability existing and hanging over his head, Joe would not have suffered any damages from the insurer's wrongful actions.
> BTW: is this essentially the same group as the unmoderated one: misc.legal
No. This one is moderated. The other one isn't.
If you don't know what kind of difference that makes, read and compare.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Joe was involved in an auto accident (Mass.) and is being sued for pain and
> suffering, etc.
> Joe agrees that he was at fault.
I believe MA is a "comparative fault" state. Even if Joe believes he did wrong, that still does not mean he was 100% wrong and the injured victim 100% in the right. Reality is usually not that simple. Of course, you say nothing about the facts of the crash (it's a hypothetical, right?) so we can't poke holes in Joe's factual _conclusion_ that he is 100% at fault, by looking at the _underlying_ facts that may provide contradictory indications.
> His auto policy limits will cover what the party is asking.
He was smart to carry high enough limits to meet expected losses. Those who carry only the legally required minimum are in most states woefully under-insured. But even a high-limits policy can't guarantee that a jury won't award even more than that in a particular case -- it's rare, but does happen (which is why it makes the news when it does).
> Joe wants them to pay, and be done with it, of course.
But if they do, his rates may go up, so his self-interest cuts both ways. In any event, that decision is usually up to the insurance company to make -- only in very high-end-type liability situations (medical malpractice, frex) do insurance policies give the insured any formal say in whether to settle or not.
> However, the insurance company doesn't want to pay what is being asked, and
> is agreeing to go to trial.
You've got that backwards. The ins. co. isn't "agreeing" to go to trial; rather, trial is the ultimate result that will inevitably occur if they _don't_ agree to settle _before_ trial. It's settlement, not trial, that requires a voluntary agreement of the parties. The law is there simply to provide a final, backed-by-force-of-the-state arbiter of those disputes which the parties cannot resolve themselves, out of court.
As an aside, those "tort reformers" who decry the "overloading" of our courts with civil lawsuits ought to keep this in mind. It is the defendant, not the plaintiff, who controls whether a case or claim has to go to trial or not. The defendant (thru his insurer) can say "yes" to an agreed, negotiated amount at any time, and the case is over. If the defendant (thru his insurer) insistently says "no" even when all reasonable indications are that saying "yes" to some compromise figure would make the most sense, the plaintiff has literally no choice other than to take the case all the way to trial, and let the judge or jury decide both liability ("who wins") and damages ("how much").
Some insurers, I might add, say "no" even when they ought to say "yes" simply to save their _own_ pocketbooks in the long run, hoping they will win more often than they lose even if they hang an occasional loser like Joe out to dry, especially when they have already "poisoned the well" by tort-reform propaganda that makes typical jurors highly skeptical of any personal injury claim and less inclined to award reasonable sums for pain and suffering than they used to be (and it is quite common for even a successful plaintiff to be awarded only his medical expenses and lost wages, with a big fat zero for pain and suffering).
As a further, even more remote aside, isn't it peculiar how in war, only the loser can declare a war to be over, by surrendering? The stronger side cannot simply declare "mission accomplished" and go home. As long as the underdogs keep fighting, the war is not over.
> At the trial, Joe is found guilty,
The more accurate term is, he was found "liable" for civil negligence resulting in damages to the particular plaintiff. One is found "guilty" of a criminal offense against the state. There is not supposed to be any moral judgment in merely being found "liable"; it's just an unfortunate mistake, not a crime. If you accidentally knock a knicknack off a shelf at a pottery store and break it, you are liable to pay the owner for it, but that doesn't mean you are a bad person. OTOH if you come into the store swinging a baseball bat and wreck the inventory, to intimidate the owner into paying "protection", frex, that's a different story.
> and the other party is awarded More than
> the coverage in his policy.
As noted above, this is rare, but does sometimes happen.
> So, what happens:
As usual, "it depends."
> Could he have insisted that since his policy amount was adequate, the
> insurance company should have paid what was initially asked for ?
The insurance co. has a good faith obligation to try to do that. If they didn't at least make an honest effort to do so, Joe might have a bad faith claim against them. But that is a tort claim against his own insurer, not a contract claim under his policy.
The odd twist in your hypo is that judgment was awarded for even more than the plaintiff asked for in his initial complaint. This is extremely rare and in some states the court would not even grant it, but would limit the plaintiff to the amount he originally asked for when filing suit (plus interest, costs, etc. and any after-accrued liabilities in a contract claim). In other states, such as MD, a complaint's "ad damnum" (amount asked for in judgment) can be freely amended, even after the verdict, to conform to the evidence and the verdict.
Unless I misunderstand what you mean by "what was initially asked for". In the course of pre-suit negotiations, a claimant will start from an initial negotiating demand, in anticipation of eventually reaching some compromise with the (usually lower) initial offers from the insurer; but that does not limit the amount the claimant can ask for in the ad damnum of his complaint when he does eventually have to file suit (if the insurer is unwilling to settle first).
In a case with large damages, a plaintiff will usually ask for "policy limits" as an initial negotiating position. If that is only a small fraction of the total damages, the claimaint is unlikely to be willing to go lower, because in doing so he would give up the possibility of winning an excess judgment (and which might leave the plaintiff's lawyer open to malpractice liability against his own client, for selling his case short)
When a complaint (suit) is filed in an amount _over_ policy limits, the insurer (in most states) is obligated to inform the insured of that fact, and also inform him of his right to obtain independent counsel to protect his interests. Even though the insurer retains and pays the lawyer who will actually try the case for defendant, defendant's independent counsel in an excess case can "oversee" the insurance lawyer and can also put pressure on the insurer to settle within policy limits. But none of that stuff is likely to happen if the ad damnum of the lawsuit's complaint is within policy limits; then, the whole thing is in the hands of the insurer.
> Was there any obligation for the insurance company to have settled up for
> an amount
> that was within his coverage ?
There's a duty to try, if it reasonably appeared likely the verdict could be for more than limits. The insurer, in every state AFAIK, has a duty to deal with its own insureds in good faith. If settlement within policy limits was a reasonable possibility and if liability is clear-cut enough that the insurer had no reasonable basis for refusing to attempt settlement, the poor (under-insured) defendant who got left holding the bag may have what's called a "bad faith" claim against his own insurance company, after a verdict in excess of his policy limits is handed to the plaintiff.
In practice, what often happens is, after the first trial of the underlying claim, the insured judgment debtor may "assign" his now-arisen bad-faith claim against the insurer to the victorious plaintiff, in exchange for a promise by the plaintiff not to execute on the excess judgment against any of debtor's personal assets other than his insurance coverage. The plaintiff (with that assignment agreement in hand) then tries to get the court to force the insurer to award him, as assignee of the original insured defendant, the damages that were caused _to_the_insured_ by the insurer's own tortious (bad faith) behavior, i.e. the amount that the insured debtor was found liable for in excess of policy limits. IOW, if the plaintiff does this right and gets lucky, the insurer may have to pay the full verdict even if it is in excess of policy limits.
> That it never should have gone to trial since his coverage was adequate, and
> therefore he should not have to be liable for the difference ?
That, in essence, is the basis for the insurer's bad faith liability to its insured: the insurer forced a case to go to trial where it never should have because if they were being reasonable they would have settled before trial, within policy limits.
But that doesn't mean "defendant is not liable for the difference". The verdict is what it is, and defendant is liable to the plaintiff whether or not he gets his insurer to cover the excess verdict. Indeed, the fact of that now-existing liability is an essential element of Joe's bad-faith claim against his insurer, since without that liability existing and hanging over his head, Joe would not have suffered any damages from the insurer's wrongful actions.
> BTW: is this essentially the same group as the unmoderated one: misc.legal
No. This one is moderated. The other one isn't.
If you don't know what kind of difference that makes, read and compare.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Mother-in-law care obligation and elder law
On Nov 12, 8:45 am, "John Smith" <some...@microsoft.com> wrote:
> My mother-in-law can no longer live on her own (forgetful regarding
> meds, proper eating, but still mentally alert).
Then she legally is still responsible for her own financial decisions. You can present her with options or suggestions or requests, but it is up to her to authorize them (or not).
> We have taken her in to our home.
Did you, wife and MIL put anything in writing as to the terms of this accommodation? Many people don't, being family, but if one doesn't, then there is no basis to consider your act as anything other than family generosity. IOW, it does _not_ entitle you to take money from MIL's account to help defray her support unless she consciously and specifically agrees to let you do that.
> We just closed on the sale of her house (she signed POA for my wife
> with the realtor), and we have a check for $74,000.
The POA let your wife act on her mom's behalf, as if she were standing in mom's shoes, as it were, simply as an agent of her mother. The POA does not in and of itself authorize your wife to use any of that money for wife's or your own account.
> My M.I.L. has agreed to pay for improvements to our house.
Is that agreement in writing? Hopefully. Otherwise, it's very easy for the parties to have very different ideas about what was agreed to.
> How should we handle the money?
That depends. What does your agreement with MIL provide? The specific terms of your contract with her are far more important, at the outset, than any general "default" provisions the law may provide in the absence of a clear agreement to the contrary.
> Ideally, we would like access to the money as improvements are made,
What does your agreement with MIL provide?
> and also plan for her future
What did MIL decide in that regard? Did you take her to a financial estate planner or elder care lawyer to help figure this out for her? Strongly recommended. Otherhwise, if the care of MIL becomes too hard for you to handle at home and you and wife need to suggest a nursing home, she may not be able to claim federal benefits to help pay for it until she had drawn down her assets almost completely, and so your MIL may wind up in a situation where she has no estate left to pass on to her heirs (which I presume include you and MIL). If you don't do this right it could cost you all dearly. Your MIL's elder care lawyer can also help her pull together and clarify her wishes and preferences in terms of end-of-life medical care, with a Living Will, medical power of attorney, advance directives and so forth, to avoid forcing you and wife to face anguished care decisions in the event of MIL's eventual incapacitation. Since it doesn't sound like MIL's condition is likely getting better anytime soon, this is an appointment you should not put off for too long. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> My mother-in-law can no longer live on her own (forgetful regarding
> meds, proper eating, but still mentally alert).
Then she legally is still responsible for her own financial decisions. You can present her with options or suggestions or requests, but it is up to her to authorize them (or not).
> We have taken her in to our home.
Did you, wife and MIL put anything in writing as to the terms of this accommodation? Many people don't, being family, but if one doesn't, then there is no basis to consider your act as anything other than family generosity. IOW, it does _not_ entitle you to take money from MIL's account to help defray her support unless she consciously and specifically agrees to let you do that.
> We just closed on the sale of her house (she signed POA for my wife
> with the realtor), and we have a check for $74,000.
The POA let your wife act on her mom's behalf, as if she were standing in mom's shoes, as it were, simply as an agent of her mother. The POA does not in and of itself authorize your wife to use any of that money for wife's or your own account.
> My M.I.L. has agreed to pay for improvements to our house.
Is that agreement in writing? Hopefully. Otherwise, it's very easy for the parties to have very different ideas about what was agreed to.
> How should we handle the money?
That depends. What does your agreement with MIL provide? The specific terms of your contract with her are far more important, at the outset, than any general "default" provisions the law may provide in the absence of a clear agreement to the contrary.
> Ideally, we would like access to the money as improvements are made,
What does your agreement with MIL provide?
> and also plan for her future
What did MIL decide in that regard? Did you take her to a financial estate planner or elder care lawyer to help figure this out for her? Strongly recommended. Otherhwise, if the care of MIL becomes too hard for you to handle at home and you and wife need to suggest a nursing home, she may not be able to claim federal benefits to help pay for it until she had drawn down her assets almost completely, and so your MIL may wind up in a situation where she has no estate left to pass on to her heirs (which I presume include you and MIL). If you don't do this right it could cost you all dearly. Your MIL's elder care lawyer can also help her pull together and clarify her wishes and preferences in terms of end-of-life medical care, with a Living Will, medical power of attorney, advance directives and so forth, to avoid forcing you and wife to face anguished care decisions in the event of MIL's eventual incapacitation. Since it doesn't sound like MIL's condition is likely getting better anytime soon, this is an appointment you should not put off for too long. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Derivative movie rotoscoping
On Nov 12, 8:45 am, halo <haloeffe...@gmail.com> wrote:
> Question one is: If I take a still image, like a photograph, that
> was created by someone else, and make a tracing of it (that is, put
> tissue paper over it and make a tracing on the tissue paper of the
> photograph underneath), is the tracing I made a violation of the
> copyrights held by the owner of the photograph?
Your tracings are creating a "derivative work" based on the copyrighted original, which would be an infringement if you did not have permission from the copyright holder of the work on which it was based.
> Rotoscoping is the art of taking a motion picture and, frame by frame
> (that is image by image), creating a tracing of each frame of the
> original motion picture. This is much like the tracing mentioned in
> the first question above, but done for every frame of the original
> motion picture. The resulting traced images are then usually coloured
> in, and re-photographed to create a new motion picture.
That would also be a derivative work. If the script and/or soundtrack are the same, that would be a direct copying in addition to the derivative images. If the script is translated into a different language, that is a derivative work.
If this is not just a fun hypothetical and you are in the movie business, you DO have legal counsel on your intellectual property rights and obligations, don't you? Please say yes.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Question one is: If I take a still image, like a photograph, that
> was created by someone else, and make a tracing of it (that is, put
> tissue paper over it and make a tracing on the tissue paper of the
> photograph underneath), is the tracing I made a violation of the
> copyrights held by the owner of the photograph?
Your tracings are creating a "derivative work" based on the copyrighted original, which would be an infringement if you did not have permission from the copyright holder of the work on which it was based.
> Rotoscoping is the art of taking a motion picture and, frame by frame
> (that is image by image), creating a tracing of each frame of the
> original motion picture. This is much like the tracing mentioned in
> the first question above, but done for every frame of the original
> motion picture. The resulting traced images are then usually coloured
> in, and re-photographed to create a new motion picture.
That would also be a derivative work. If the script and/or soundtrack are the same, that would be a direct copying in addition to the derivative images. If the script is translated into a different language, that is a derivative work.
If this is not just a fun hypothetical and you are in the movie business, you DO have legal counsel on your intellectual property rights and obligations, don't you? Please say yes.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Judgment lien on home
On Nov 12, 8:44 am, "Chuck" <sendmes...@thevolleyball.net> wrote:
> I won a judgement against an individual but they still have not satisfied
> the judgement. I plan on placing a lien on his home.
>
> Since the amount of the judment is just under 2K and the property is worth
> 500K, I may have to wait until he sells the property to collect. Is there a
> way to get some sort of interest on the judgement if the defandant makes me
> wait years to see any money? For example, can I get the lien in the amount
> of the judgement, PLUS a reasonable interest rate?
Yes. The law of your state will determine this. Why don't foax tell the group where they are? Laws differ from place to place. I feel like a broken record (see my comment to Johnny the Pro Se Defendant's query about unanswered interrogatories also posted this morning, repeated for your edification at * below).
That said, what you propose sounds reasonable. The law in most if not all USA states provides for post-judgment interest and prescribes the applicable rate. Here in MD, the legal rate is 10% simple annual interest. So when you do finally collect on your lien, you will get a return on your investment.
As a side note to the question you didn't ask, if your judgment is just against one individual, and if that individual happens to be married and to own the home as tenants by the entireties or as joint tenants with the spouse, you may not be able to lien the home to satisfy your judgment. This is way too complicated to address in a Usenet post, but you should be aware this is not necessarily a piece of cake from your POV. Good luck.
* As do many other posters, Johnny, you fail to tell us what state you're in, or even if you're in USA. OK, posters, help us out here a bit, huh, when asking specific questions about laws that vary from state to state? All you're going to be able to get are general answers that may not apply to you.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I won a judgement against an individual but they still have not satisfied
> the judgement. I plan on placing a lien on his home.
>
> Since the amount of the judment is just under 2K and the property is worth
> 500K, I may have to wait until he sells the property to collect. Is there a
> way to get some sort of interest on the judgement if the defandant makes me
> wait years to see any money? For example, can I get the lien in the amount
> of the judgement, PLUS a reasonable interest rate?
Yes. The law of your state will determine this. Why don't foax tell the group where they are? Laws differ from place to place. I feel like a broken record (see my comment to Johnny the Pro Se Defendant's query about unanswered interrogatories also posted this morning, repeated for your edification at * below).
That said, what you propose sounds reasonable. The law in most if not all USA states provides for post-judgment interest and prescribes the applicable rate. Here in MD, the legal rate is 10% simple annual interest. So when you do finally collect on your lien, you will get a return on your investment.
As a side note to the question you didn't ask, if your judgment is just against one individual, and if that individual happens to be married and to own the home as tenants by the entireties or as joint tenants with the spouse, you may not be able to lien the home to satisfy your judgment. This is way too complicated to address in a Usenet post, but you should be aware this is not necessarily a piece of cake from your POV. Good luck.
* As do many other posters, Johnny, you fail to tell us what state you're in, or even if you're in USA. OK, posters, help us out here a bit, huh, when asking specific questions about laws that vary from state to state? All you're going to be able to get are general answers that may not apply to you.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Discovery sanctions, representing yourself
On Nov 12, 8:44 am, Johnny <J0hn_2...@rock.com> wrote:
> As (pro-se) defendant, I have submitted interrogatories, request for
> admission of facts and request for production to plaintiff. At the
> time of this writing the response from plaintiff is now nearly a week
> over due. How should I react to this situation? Would this be grounds
> for requesting a dismissal or what?
As do many other posters, Johnny, you fail to tell us what state you're in, or even if you're in USA. OK, posters, help us out here a bit, huh, when asking specific questions about laws that vary from state to state? All you're going to be able to get are general answers that may not apply to you.
If you insist on representing yourself instead of letting a professional do it, read the rules of civil procedure applicable in your court so you know at least a little bit about what you're doing. In most jurisdictions the rules are listed in a logical sequence corresponding to the stages of a suit, beginning from general principles applicable to all actions, to filing a complaint, motion, answer, cross-claim or counterclaim, to identifying the parties, and when or if joinder of parties is either required or permitted, through the discovery phase (depositions, interrogatories, requests to produce documents for inspection and copying) through trial, not to mention post-trial motions and appeals. Before you go any farther, you need to read and understand _at_least_ all the way through the conclusion of a trial, to know the framework for what will or can happen in your case. Don't know what set of rules are applicable in your case? Ask the court clerk, or a local law librarian. Your courthouse probably has a law library open to the public for research, and your local public library may even have copies of the local court rules. If you don't understand the rules, or even if you do, read some of the reported case opinions (cited in the annotations that appear in most printed volumes of procedure rules) that interpret those rules, to find out how courts in your state really apply them. (The annotations just contain the name and volume/page reference citation for the case and sometimes a very brief capsule summary of its holding. Find and read the actual case, since the capsule descriptions are not always right-on.)
That said, your rules will tell you what your options are when an opponent has failed to provide requested discovery. In many states you have a choice of filing a motion to compel answers (which is what you're likely to get in any case), or filing a motion for immediate sanctions in certain failures of discovery (complete failure to answer a set of interrogatories is usually one of those circumstances that will allow this). However, a court is not likely to throw your plaintiff;s case out of court just because he is a week late in answering. The judge is likely to just order him to respond within a certain additional time -- if trial is looming, that could make a difference, but you didn't say that was a factor. Then, if he still doesn't answer after being specifically ordered to do so by the court, you are more likely to have some success if you file another motion for sanctions based on his violation of the court's order compelling discovery. Sanctions typically can include dismissal, but that is rarely the first choice judges will reach for, because the law prefers that cases be heard on their merits, not won or lost by some procedural mistake. Instead, the judge is more likely to rule that plaintiff be barred from producing certain evidence if he didn't reveal it to you in discovery, or rule that certain contentions of yours be taken as established if plaintiff failed to come up with evidence contradicting them in discovery, and so on.
Anyway, good luck. If you're pro se, you'll need it. But I suppose if the plaintiff is pro se too, you'll both need it.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> As (pro-se) defendant, I have submitted interrogatories, request for
> admission of facts and request for production to plaintiff. At the
> time of this writing the response from plaintiff is now nearly a week
> over due. How should I react to this situation? Would this be grounds
> for requesting a dismissal or what?
As do many other posters, Johnny, you fail to tell us what state you're in, or even if you're in USA. OK, posters, help us out here a bit, huh, when asking specific questions about laws that vary from state to state? All you're going to be able to get are general answers that may not apply to you.
If you insist on representing yourself instead of letting a professional do it, read the rules of civil procedure applicable in your court so you know at least a little bit about what you're doing. In most jurisdictions the rules are listed in a logical sequence corresponding to the stages of a suit, beginning from general principles applicable to all actions, to filing a complaint, motion, answer, cross-claim or counterclaim, to identifying the parties, and when or if joinder of parties is either required or permitted, through the discovery phase (depositions, interrogatories, requests to produce documents for inspection and copying) through trial, not to mention post-trial motions and appeals. Before you go any farther, you need to read and understand _at_least_ all the way through the conclusion of a trial, to know the framework for what will or can happen in your case. Don't know what set of rules are applicable in your case? Ask the court clerk, or a local law librarian. Your courthouse probably has a law library open to the public for research, and your local public library may even have copies of the local court rules. If you don't understand the rules, or even if you do, read some of the reported case opinions (cited in the annotations that appear in most printed volumes of procedure rules) that interpret those rules, to find out how courts in your state really apply them. (The annotations just contain the name and volume/page reference citation for the case and sometimes a very brief capsule summary of its holding. Find and read the actual case, since the capsule descriptions are not always right-on.)
That said, your rules will tell you what your options are when an opponent has failed to provide requested discovery. In many states you have a choice of filing a motion to compel answers (which is what you're likely to get in any case), or filing a motion for immediate sanctions in certain failures of discovery (complete failure to answer a set of interrogatories is usually one of those circumstances that will allow this). However, a court is not likely to throw your plaintiff;s case out of court just because he is a week late in answering. The judge is likely to just order him to respond within a certain additional time -- if trial is looming, that could make a difference, but you didn't say that was a factor. Then, if he still doesn't answer after being specifically ordered to do so by the court, you are more likely to have some success if you file another motion for sanctions based on his violation of the court's order compelling discovery. Sanctions typically can include dismissal, but that is rarely the first choice judges will reach for, because the law prefers that cases be heard on their merits, not won or lost by some procedural mistake. Instead, the judge is more likely to rule that plaintiff be barred from producing certain evidence if he didn't reveal it to you in discovery, or rule that certain contentions of yours be taken as established if plaintiff failed to come up with evidence contradicting them in discovery, and so on.
Anyway, good luck. If you're pro se, you'll need it. But I suppose if the plaintiff is pro se too, you'll both need it.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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