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JANUARY BLOG

Monday, January 21, 2013

In this blog I am going to discuss several different topics. This is not intended to cover in detail California law, but to apprise you of different areas of the law, and things you can do to protect yourself.

 

1. PUT IT IN WRITING

In well over half the cases on which I have been consulted with regard to a breach of an agreement by someone, the agreement was NOT written. This of course leads to a "who said what" situation. Sometimes there are witnesses to parts of the agreement, and sometimes not. Some agreements under California law are required to be in writing. Others are not. Examples of common agreements are such as purchasing a new or used vehicle, entering a partnership, loaning money to a person or entity, permitting someone to hold property temporarily, and more.

Depending upon the nature, details, and importance of the agreement, it may be wise to consult an attorney. If for whatever reason you choose not to consult an attorney, you can at least confirm in writing the important terms of the agreement. An email stating "this is to confirm our agreement that............." will come in handy upon a breach of the agreement. If that is too formal, you can always write an email such as: "it was great talking to you last week. I look forward to working with you on the project, where you said you would ....................... and I agreed to....................................." ; something in writing to protect your position if the other person does not perform under your agreement with them.

2. EMPLOYER OR EMPLOYEE, KNOW YOUR RIGHTS

There are a multitude of issues today between employers and employees, sometimes leading to costly and lengthy litigation. Examples include sexual or other harassment, overtime pay, disability leave, pregnancy leave, workers compensation rights, and more. An employer or employee would be wise to know the law before acting, or in some cases, failing to act. Wrongful termination is a thriving area of the law in California, and many people only have a vague idea of the rights and liabilities of an employer or an employee. For example, can an employer go online and after reading an employee’s facebook page, terminate the employee based upon something appearing on a facebook page? Can an employer secretly monitor an employee’s computer during work hours, to see what sites the employee has visited, or emails send and received by the employee? These are all issue relevant to the workplace today. The employer needs to know them in order to protect themselves from lawsuits. The employee needs to know them to properly assert their rights against an employer.

3. WHERE THERE’S A WILL, THERE’S A WAY

Do you have or need a will? Do you have or need a trust? Do you have minor children? Do you own real property? Have bank accounts? The purpose of knowing the options as to how to hold property, real or personal, or about wills and trusts, is to ensure that your property will go where you want it to go, and under what conditions. If you have questions about these issues, an attorney should be consulted by you to inform you of various options.

4. HEALTHCARE DIRECTIVES/ POWER OF ATTORNEYS

A health care directive is a written document that informs other of your wishes about your health care. It allows you to name a person to be your agent; to make healthcare decisions on your behalf if you are unable to decide. You must be at least 18 years old to make a health care directive.

A health care directive is important if your attending physician determines you can't communicate your health care choices because of physical or mental incapacity. In addition to having an agent make decisions on your behalf, you can set forth in the document any specifics with regard to decisions which might affect the quality of your life. Since privacy laws are so strong in California, you can also set forth not only an agent to make decisions, but an authorization permitting any other persons to receive copies of your records, or who you may like to have access to your information, but NOT to make your healthcare decisions.

You don't have to have a health care directive. But, writing one helps to make sure your wishes are followed. You will still receive medical treatment if you don't have a written directive. Health care providers will listen to what people close to you say about your treatment preferences, but the best way to be sure your wishes are followed is to have a health care directive.

5. NEIGHBOR VS NEIGHBOR

Quite often I am consulted on matters involving neighbor disputes. The disputes ranged from the location of the property line,   to the condition of common walls or fences, to land being moved about due to rain and other conditions, to dogs barking far too often. This is a touchy area of the law because an attorney should consider not just the hard rules of law, but the fact that these people live next door to each other, and will continue to interact with each other. Sometimes formal letter writing is necessary, or even litigation. Other times, more "friendly" approaches are possible.

6. DOG BITE CASES

Over the years I have handled dozens of dog bite matters, sometimes on behalf of the person attacked, other times on behalf of the dog owner. Under what circumstances is a person legally responsible for their dog biting a person? What if the person bitten is a trespasser, or if the person bitten was walking on the street and the dog attack was by a dog also being walked on the street, on leash? The general rule in California is that the owner of a dog is strictly liable for the dog biting a person. There used to be, but is no more, "one free bite," giving notice of a dog’s propensity to bite.

7. MEDICAL OR DENTAL MALPRACTICE

Many people believe that a doctor or dentist can be liable for malpractice because the medical or dental procedure did not come out the way they expected. Such malpractice can come in many forms: a failure to diagnose, a failure to properly treat, failure to follow up, negligence in performing a particular procedure. In California, an expert must testify as to the standard of care based upon a similarly qualified doctor or dentist acting under similar circumstances. As an example, not just any doctor can testify to the standard of care in an emergency or trauma care situation. That would require the testimony of an urgent or emergency care practitioner. Oftentimes it is very difficult to find one doctor, or dentist, or chiropractor, to testify against another person in that profession. Also, malpractice matters are among the most costly to prosecute, so sometimes a person has a good case, but it would just cost too much money to prosecute it as compared with the case value, if won. An attorney, with a doctor’s input after an examination of medical records, can better determine the nature and extent of liability and possible damages.

8. REAL ESTATE PURCHASES AND SALES; SHORT SALES; FORECLOSURES; ESCROW; EASEMENTS; CITY AND COUNTY RULES, REGULATIONS AND REQUIREMENTS; HOME OWNER ASSOCIATION RIGHTS AND LIABILITIES

As an attorney, and a licensed California Real Estate Broker, I have covered many issues with regard to real estate transactions. The rules are ever changing as the Federal and State government are modifying them quite often. If you have any issues with regard to real estate, you should contact an attorney who is familiar with that field, as I am.

9. A REMINDER-UPDATE YOUR AUTOMOBILE INSURANCE

I will never stop reminding relatives, clients, friends, whoever will listen, of the need for proper insurance coverage and limits. If you continue to protect other drivers with higher coverage limits than you protect yourself and your family, that is a problem which I hope you never have to face. However, as they say, better safe than sorry. Update it!

If you want to discuss any of the issues above, or any issues or concerns about other areas of the law, please do not hesitate to contact me by email or telephone.

For the month of February, 2013, I am providing clients and or referrals from them with a thirty minute office conference, free of charge.

WISHING YOU AND YOUR FAMILY a happy and healthy 2013.



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UNINSURED/UNDERINSURED MOTORIST COVERAGE

Thursday, August 23, 2012

In the thirty years plus that I have been practicing law, I have had many clients who suffered substantial injuries in an accident of some kind, whether automobile, truck, motorcycle, or as a pedestrian, only to find out the driver who caused the accident either had no insurance, or not enough insurance to compensate them for medical expenses, pain and suffering, and loss of  earnings.
 
I have given many lectures on automobile insurance, the truths and untruths, and how to determine what coverage a person needs. The one fact, most important above all others, is this:
 
UNINSURED/UNDERINSURED MOTORIST COVERAGE (U.M./UIM)
PROTECTS YOU AND YOUR FAMILY, AND IS THE MOST IMPORTANT COVERAGE YOU SHOULD BE CONCERNED ABOUT.
It is the coverage that protects you and the passengers in your vehicle, in the event you are hit by an uninsured motorist, or, by a driver who had insurance, but not enough to compensate you or your family members for the injuries sustained. injury claims.   
 
By way of  example-let’s suppose you were in an accident where, as a result, you had back surgery, and incurred hospital and medical bills in such an amount that the value of your claim against the negligent driver exceeds the policy limits carried by the driver who caused the accident.  Underinsured motorist coverage lets you collect up to the difference between the negligent driver’s insurance policy limits, and your Uninsured/Underinsured Motorist limits.
 
As a practical example, a  client of mine was badly injured, and his case had a value of between $100,000.00 and $150,000.00.  The other driver had $25,000.00 of liability coverage. My client carried $100,000.00 of uninsured/underinsured coverage.  Because of my client’s UM/UIM limit of $100,000.00, he was able to  settle his case for the other driver’s $25,000.00, PLUS an additional $75,000.00.
If my client carried underinsured motorist limits of $25,000 or less, he could only have collected the $25,000 carried by the other driver.
 
I always take the time to advise businesses, friends, and acquaintances, and  groups of people before whom I speak, of the proper automobile insurance coverages which they should consider.  The importance of the right coverages is, sadly, not considered by many people, until after an accident.
 
I am willing to take the time to educate and advise anyone interested in protecting themselves and their family, no fees charged.  An office or telephone conference can be arranged by contacting me through one of the methods on this website.
 

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