UConn Law Library Can Sue Contractors after Statute of Limitations Expired

In an interesting case that reached the Supreme Court of Connecticut, the Court reversed a lower court ruling which had prohibited the state from seeking damages from contractors that the state claimed were responsible for extensive construction and design problems with the building of University of Connecticut School of Law Library.  The state is now able to seek recovery from contractors and architects for over $15 million. The state had initially sued the builders and designers of the library in 2008.  However, the defendants believed the lawsuit should be thrown out because the state had waited 12 years before suing.  The state successfully argued that it did not have to adhere to the normal six-year statute of limitations, basing its argument on an old English legal doctrine.  The Connecticut Supreme Court sided with the state.  It remains to be seen whether future cases will be affected by the Court's ruling which essentially allowed the state to be immune from the statute of limitations normally applied to construction contracts.

A link to the Courant article on the current can be found here: http://articles.courant.com/2012-11-02/news/hc-uconn-library-legal-battle-1103-20121102_1_time-limit-nullum-tempus-liability

Begging your Pardon? Witchcraft in Colonial Connecticut.

 

For a person who has been convicted of a crime in the state of Connecticut to have their record cleared, they must make an application for a pardon to the Board of Pardons and Parole, which is a subdivision of the state Department of Corrections.   Whether a pardon will be granted depends heavily on the seriousness of the criminal offense and the circumstances surrounding and following the conviction.  But what happens when the conviction was hundreds of years ago?  Connecticut was the first colony to execute an individual convicted of witchcraft in the 17^th century.  Goodwife Bessett confessed to witchcraft (undoubtedly under conditions which would constitute duress today) and hanged in Stratford, Connecticut in 1651 (more than forty years before the infamous Salem Witch Trials which occurred in present day Danvers, Massachusetts.) 

However, some Connecticut residents are searching for redemption for some of those wrongly accused and executed so long ago.  A retired police Sergeant from New Haven, Mr. Tony Grieco, is seeking community support for the issuance of pardons on behalf of 11 named individuals who were executed as witches in Connecticut.  As quoted by WTNH.com, “Grieco says many of the so-called witches were tried, convicted, and executed at the old State House in Hartford. The first one was hung from a tree and buried in a hole back in 1647.”  Mr. Grieco takes issue with the fact that "[m]ost of the people who were accused had no defense attorneys [and] their trails were based on accusation from neighbors."

Unfortunately for Mr. Grieco and the tarnished reputations of the Connecticut witches, Governor Dan Malloy lacks the power to grant such a pardon request, and representatives of the Queen of England (as England ruled colonial Connecticut in the 17^th century) simply do not have enough information to act on Mr. Grieco’s request.  It seems for the foreseeable future, the witches will remain on the books. 

Happy Halloween!

John Maxwell Weighs in on Juvenile Detention

Attorney John Maxwell, a seasoned criminal attorney at Brown, Paindiris & Scott weighed in on the frequency of juvenile detention in Connecticut this week. He was quoted in an article appearing in the Hartford Courant on September 26, 2012. Read the full article here.

A District Without Judges

Our system of formal dispute resolution and criminal justice essentially relies on all the actors being in place.  When you go to court, you need your lawyer.  Your opponent needs his.  The court reporter keeps a record of what goes on.  The bailiff ensures public safety and enforces decorum.  The judge presides.  The judge can be the arbiter of the dispute, or the referee of procedure.  The judge can make an enforceable ruling, or refrain from acting.  The judge is an indispensable component of our system.

How does the judge get to the bench?  Under Article II, Section 2 of the Constitution of the United States of America, federal judges are nominated by the President and confirmed with advice and consent of the Senate.  Thus, like any initiative that passes through Congress, the appointment of judges can be bogged down by the democratic process and party politicking.  This partisanship can be intense in judicial appointments, as those appointments are often more enduring then legislative positions since a federal judge keeps his or her seat for life (i.e. “during good behavior”).  

The judicial appointment process becomes increasingly politicized in the midst of a highly contested election season.   Presently, 17 appointments are being held up in the Senate due to partisan blocking, including that of Attorney Michael Shea for the District of Connecticut.   The delay of judicial appointments, such as that of Mr. Shea, are sorely felt in the District of Connecticut, where district court judge Peter C. Dorsey passed away earlier this year, another judge is ill and judge Christopher Droney was raised up to the Second Circuit Court of Appeals.

The result:  A backlog of civil cases without a judge to preside over them.  The further result: the importation of judges from other districts to preside in Connecticut.  Chief U.S. District Judge Alvin Thompson has asked judges from other districts around the country to come to Connecticut in order to relieve a backlog of civil cases.  So far, judges from district courts in New York, Ohio, Kentucky, Montana and South Dakota are en route or have arrived in Connecticut to attempt to help the District of Connecticut judges out of this litigation backlog. 

Facebook “Like” not Constitutionally Protected Speech

In a recent Virginia District Court decision, the court held that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.” Bland v. Roberts, 2012 U.S. Dist. LEXIS 57530 (E.D. Va. 2012).  The case in question came before the U.S. District Court of Eastern Virginia after B.J. Roberts of the Hampton, Virginia Sheriff's Department fired five employees following his successful reelection in 2009.  The fired employees filed an action alleging that they were fired in retaliation for their exercise of freedom of speech because before the election, they each "Liked" the Facebook campaign page of Roberts' opponent, Jim Adams.

Although holding a Facebook “Like” was unprotected speech, the court recognized cases in which Facebook posts were afforded constitutional protection.  In those cases, there were actual posts, either on a wall or in a comment, containing actual statements and therefore sufficient speech to be protected by the First Amendment.  The court, holding a “Like” as unprotected speech, determined that a “Like” is “not the kind of substantive statement that has previously warranted constitutional protection. The Court [would] not attempt to infer the actual content of [Plaintiffs’] posts from one click of a button on [a] Facebook page.” Bland v. Roberts, 2012 U.S. Dist. LEXIS 57530 (E.D. Va. 2012).

 

Attorney David Rintoul to present at ERISA Claim Litigation Seminar

Attorney David Rintoul will be presenting at the ERISA Claim Litigation 101 Seminar sponsored by the Connecticut Bar Association on September 19, 2012.  He will be addressing the law, regulations and practice of administrative appeals of disability benefit and health insurance benefit claims.    

 

The process of appealing benefit denials with the plan is crucial to a successful suit for benefits under the plan, since claimants generally can only present evidence and argument in court that they have raised during the appeal process.  Patrick Begos and Alexander Schwartz will also be presenting on other issues involving ERISA litigation. 

What is Legal versus what is Right

In every state, Connecticut included, it is not unlawful for a person with a valid carry permit to possess a legally obtained firearm.  However, just because you know that you are entitled to carry, does not mean that it is always a good idea to do so.  With the memory of the tragedy that befell a Colorado showing of “The Dark Knight Rises” last month not yet diminished, a Connecticut attorney’s judgment failed him last week when he brought a loaded firearm to a late night viewing of “The Dark Night Rises” in New Haven.   While Attorney Sung-Ho Hwang is correct, in a statement made to the press and reported in the Hartford Courant, that “[t]here is no posting at Criterion-Bow Tie Cinemas that states that weapons are not permitted. As far as the law is concerned, [he] ha[s] a right to carry there," Mayor John DeStefano may be equally correct that "[j]ust because something is legal, it doesn't make it right."  Attorney Hwang was charged with breach of peace and interfering with police.

Anti-Blight Action Being Taken in New Haven

The city of New Haven has made use of a 2009 municipal law allowing them to foreclose on abandoned problem properties. Known as the “Anti-Blight and Property Maintenance Ordinance” or simply the “Anti-Blight Bill” this law grants the city of New Haven the power to aggressively fine property owners, including the Housing Authority of New Haven, and place liens on those properties if the fines are unpaid and, in extreme circumstances, the power to foreclose on blighted properties. The ordinance also addresses cosmetic aspects of property ownership by prohibiting owners from leaving garbage or shopping carts on their property and requiring that they maintain basic appearances by fixing broken windows and having proper drainage for their driveways. 

Although the law was passed in 2009, the city has not taken advantage of the foreclosure option included in the bill until recently. Its first foreclosure was initiated in June 2012 after years of complaints regarding the “eyesore” of the neighborhood. The target property, 129 Clay St., has been neglected since 2003 and has since been the home to many homeless and criminal individuals according to local residents. The city has announced its intention to foreclose on the property and will put out a Request for Proposals from developers and housing agencies who would possibly develop the property into owner occupied housing.

Brown Paindiris & Scott Attorney Files Class Action Lawsuit Against Waggin' Train Chicken Jerky Pet Food Treats

Bruce Newman, of Counsel Attorney at Brown, Paindiris & Scott, has filed a class action lawsuit on behalf of Elizabeth Mawaka against Nestle Purina, Waggin' Train, LLC, Wal-Mart, and Sam's Club following the death of Ms. Mawaka's two boston terriers after they ingested chicken jerky treats. Over a thousand complaints have been made to the FDA because of pet illnesses and deaths after ingesting this food, and currently over a dozen other affected pet owners may be joining the suit, which is currently pending in the US District Court in Connecticut. The chicken jerky treats cause neurological symptoms, liver and kidney failure and may also cause pancreatitis in dogs. Newman has requested that these dog treats be immediately recalled. The case has been accepted by the Judicial Panel on Multi-District Litigation as another action is currently pending in Chicago and it may be transferred to another Judge in the next 6 weeks.

If you, a family member, or friend has a dog affected by this contaminated food, contact Attorney Newman at 860.583.5200 or bnewman@bpslawyers.com.

Boating in Connecticut? Better Check for Barnacles

Among the dozens of new laws that became effective July 1, 2012, in the state of Connecticut, one particular law should be of special interest to boaters. Public Act 12-167 created a new violation, punishable by a fine of $100, for anyone to transport a boat or a trailer without first having inspected the boat or trailer for the “presence of vegetation and aquatic invasive species, as determined by the commissioner,” and then removed and disposed of the offending vegetation or species.  The public act also requires that any course in safe boating approved by the state include instruction on inspecting a boat or trailer for vegetation or invasive species and how to properly remove and dispose of those items.

Questions or Comments? Contact Jared Cantor.

Supreme Court Holds Health Care Law Constitutional

Yesterday marked the conclusion, not only to the Supreme Court’s 2011-2012 term, but to the heated debate regarding the Constitutionality of the Patient Protection and Affordable Care Act, a/k/a “Obamacare”.  In deciding the case of National Federation of Independent Business v. Sebelius, Chief Justice John Roberts joined the Supreme Court's four liberals to uphold President Barack Obama's health plan’s individual mandate requiring citizens to carry insurance or pay a penalty.  By a 5-4 vote, the court held that the mandate was valid under Congress' constitutional authority "to lay and collect Taxes" to provide for "the general Welfare of the United States."  Writing for the majority, Chief Justice Roberts stated that the penalty for failing to carry insurance possesses "the essential feature of any tax," producing revenue for the government.

The Court held one part of the law unconstitutional, deciding that the act’s expansion of the federal-state Medicaid program threatened states' existing funding.  The Court ruled that the federal government cannot put sanctions on states' existing Medicaid funding if the states decline to go along with the Medicaid expansion.

The four justices voting against the Constitutionality of the health care plan, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, stated in their dissent that they would have struck down the entire law, arguing that neither the government's commerce nor taxing power justified the mandate.  They opined that by reinterpreting the insurance mandate and changing the Medicaid provision, the majority engaged in “vast judicial overreaching" and decided “to save a statute Congress did not write.”

DUI License Suspension Rule Changes

As of January 1, 2012, Connecticut has instituted new penalties for individuals convicted for a first offense of Driving Under the Influence (DUI).  Under the new rules, individuals convicted for their first DUI offense will have their license suspended for 45 days, provided they install an Ignition InterlockDevice (IID) in their car for one year.  An IID is a device installed in the motor vehicle that measures the blood alcohol content of the driver and prevents the engine from starting if the blood alcohol content of the driver is more than .025 percent. 

The Department of Motor Vehicles (DMV) is applying the new suspension rules based on the date of conviction, not the date of conduct.  Therefore, anyone convicted after January 1, 2012 will have the new penalty provision applied against them, whether or not the DUI incident occurred before January 1^st.  Previously, there was a mandatory one year license suspension for first time DUI convictions.  The DMV is allowing drivers with a one year suspension under the previous penalty provisions to opt into the 45 day suspension period, provided they install an IID for one year.   

New Home Ownership Incentive Program Offers Grants to Purchase Homes in Hartford

Five Hartford corporations have begun offering grantassistance to their employees for use in purchasing single, two- or three family homes or condominiums. The grants are part of a Home Ownership IncentiveProgram created by MetroHartford as part of its LiveHartford initiative, a plan to promote city living and transform the surrounding area to benefit both the companies and employees. Modeled after similar programs developed by Yale University and MassMutual Financial Group, the Home Ownership Incentive Program allows companies to award grants to eligible employees on a first come, first serve basis to buy a home in Hartford. Although the grants will be forgiven over a five year period, if the employees quit their jobs or sell their homes before that time period has expired they will be required to pay the amount that is still outstanding.

So far five Hartford corporations have signed on including Aetna, Hartford Hospital, Saint Francis Hospital and Medical Center, Connecticut Children’s Medical Center and Trinity College, but program leaders are hopeful more will follow. While each corporation currently participating has agreed to award five $10,000 grants, small and medium sized business are also encouraged to participate and may offer grants of any amount. Aetna began accepting applications in March and has already chosen one participant for a grant. The other corporations expect to begin their programs soon.

Connecticut Employers May be Liable if They Fail to Prevent Anti-Homosexual Workplace Harassment

Under Connecticut law governing employment discrimination, an employer may be liable to an individual or employee if it "refuse[s] to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s sexual orientation or civil union status." C.G.S. § 46a-81c (1).  The question recently posed to the Connecticut Supreme Court in Patino v. Birken Manufacturing Co., was whether the mandate that an employer must not discriminate regarding “terms [or] conditions” of employment made an employer liable if it failed to take reasonable steps to protect an employee from workplace harassment/a hostile work environment due to the employee’s sexual orientation.

In reaching its decision, reportedly one of the first state supreme court decisions tackling this issue, the Connecticut Supreme Court concluded it did not matter that the law does not expressly make an employer liable for failing to prevent workplace harassment or remedy hostile work environments targeting an individual because of their sexual orientation.  Rather, the Connecticut Supreme Court, after examining the statute, related state and federal laws and case law, concluded that the phrase “terms, conditions or privileges of employment,” which already is used in many laws to employees from discrimination due to race or gender, has become a special phrase that covers employees facing workplace harassment or a hostile work environment due to protected qualities, such as race or gender. Therefore, because the state legislature used this phrase in the statute making an employer liable for discrimination on the basis of sexual orientation, the legislature meant to protect employees from – and make an employer liable for – unremedied workplace harassment or hostile work environments.

Questions or Comments? Contact Jared Cantor.

How to Deal with Denial of Long Term Disability Benefits

When appealing a denial of long-term disability benefits, it is important to act fast to develop the information to rebut the reasons the insurer gave to deny the claim.  The relevant period for determining disability is the “elimination period,” which is usually the 180 days after you become disabled.  If you wait too long to do the testing you need for your appeal, the insurer can disregarding the information on grounds that while it may show that you are disabled at the time of the testing, it does not show that you were disabled during the elimination period.    This was demonstrated in the case of Kellyv. Reliance Std. Life Ins. Co., 2011 U.S. Dist. LEXIS 147133 (D.N.J. Dec. 21, 2011), where the court disregarded the claimant’s cardiac condition in determining if he was disabled because he first received treatment for the condition after the elimination period, even though the condition contributed to his disability during the elimination period.  The case illustrates why it is important to talk to an attorney early in the appeal process so we can develop a comprehensive and timely plan to maximize your chance to get disability benefits.  Other information on appealing disability benefit denials under ERISA and for private plans is on the Employment Law section of our website. 

BPS Attorney To Participate in 3-Day Komen Breast Cancer Walk

This year Attorney Bridget Gallagher, a partner at Brown, Paindiris & Scott, LLP, will be participating in the Susan G. Komen 3-Day walk in Boston.  She and her six other team members will walk a total of 60 miles over the course of three days in order to raise money to help support breast cancer research.  These 3-day walks are annual events and this year will be held fourteen major cities around the country.  Each participant is required to raise $2,300.00 in order to participate in the walk.  The events often draw as many as two thousand participants in each city, resulting in an extraordinary contribution to the fight against breast cancer.  Attorney Gallagher and her team members will walk on July 27, 28 and 29.

Attorney Gallagher will be joined by her dearest college friends, all of whom have participated in an annual girls weekend trip since they graduated in 1991.  This year their usually carefree girls weekend will be replaced by this fundraising event, a big commitment for each of these ladies, all of whom have young children at home.  With the support of their families and friends they will collectively help to raise a significant sum to help support breast cancer research.  The group was inspired to participate in the walk due to the recent diagnosis of their friend and team captain, Beth, mother of four young children, who underwent a double mastectomy this year.  Thankfully she is doing well and they have all been humbled by her enduring strength and positive attitude.

If you wish to help support Attorney Gallagher’s fundraising efforts please click on her home page in order to make a donation, and thank you. (http://www.the3day.org/site/TR/2012/BostonEvent2012?px=6487585&pg=personal&fr_id=1751)

Sunday Liquor Sales: Full Steam Ahead

On Monday May 14, 2012 Governor Dannel Malloy signed into law Public Act 12-17 making Sunday liquor sales legal in the state of Connecticut. Even with the new law, some towns still prohibit the sale of alcohol entirely, and some still ban the sale of liquor on Sundays. Bridgewateris the last “dry” town in Connecticut, and though it is not dry, no alcohol is sold in the town of Easton. Wilton, Connecticut has a town ordinanceprohibiting liquor sales on Sunday, and the town law trumps the new state law. Sunday sales will start this Sunday, May 20, 2012 for stores in those towns that haven’t banned Sunday sales. Individual store owners will decide whether to stay open on Sundays or not.

Connecticut’s “Pet Lemon Law”

Connecticut is a pet-friendly state. In addition to allowing owners of pets to create “pet trusts” to take care of pets if an owner dies, Connecticut also has a “pet lemon law.”  Under the law (C.G.S. § 22-344b), if you purchase a dog or cat from a pet store and that pet becomes ill or dies within 20 days from an illness that it had at the time of sale (but the owner was unaware of), the store is required to replace the dog or cat or refund in full the purchase price.  This protection for owners is extended to situations when, during the first six months after purchase, the owner discovers that the dog or cat has a congenital defect that has or will adversely affect the dog or cat’s health.  In such a case the pet store is again required to replace the animal or refund the purchase price.  In both cases the law mandates that the pet store reimburse the owner for pet care costs, such as medication and veterinarian services, up to $500.  The law requires, however, that the owner seek treatment of the ill pet with a licensed veterinarian.

Recently, the Connecticut Senate passed a bill that would amend the law to close the “love loophole,” which occurred when some pet stores required the owner to return the ill dog or cat before the store would pay for veterinarian bills.  The bill, which is pending before the governor for his signature, would allow owners to seek reimbursement of the pet’s medical fees without having to return the pet, thereby protecting owners who have grown to love their pet.

Questions or Comments? Contact Jared Cantor.

Legislative Round up

The 2011-2012 legislative session was a big year for action and inaction at the Connecticut legislature. How did some of the hot button issues fair? According to the Hartford Courant’s analysis of some of this year’s major bills:

Online Gambling? It went nowhere, with the Governor’s proposal not even being introduced in committee.

Banning those 18 and under from using tanning beds? Although the bill was introduced in committee, it died without any action.

Legalization of ‘medical marijuana’? The bill passed 95-51 in the House and as of today awaits action in the Senate.

Raising the state minimum wage? The bill passed 88-62 in the House and as of today awaits action in the Senate. The law would raise the current $8.25 minimum hourly wage to $8.50 in 2013 and to $8.75 in 2014.

Allowing some of the state’s largest cities to install ‘red light cameras’? The bill was voted on favorably in committee and awaits action in the House.

Ending Connecticut’s “blue laws”? The bill allowing alcohol sales on Sunday in package stores and supermarkets as well as on the holidays of Memorial Day, Independence Day and Labor Day passed the House 116-27 and awaits action in the Senate.

Guaranteeing that citizens can videotape police officers? Passed in the Senate 22-11 and awaits action in the House.

Perhaps the most notorious bill signed into law this year was the repeal of the state’s death penalty, which will not apply to those inmates currently on death row.

Questions or Comments? Contact Jared Cantor.

Death Penalty Axed in Connecticut

Governor Dannel Malloy’s signing of a Senate Bill 280, An Act Revising the Penalty for Capital Felonies, has made national headlines. With its passage, Connecticut has officially become the 17^th state to abolish the death penalty. Malloy cited the “unworkability” of Connecticut’s death penalty as a major factor for signing the bill. In the last fifty two years only two people have been put to death, Joseph “Mad Dog” Taborsky in 1960 and Michael Ross in 2005. The repeal of the penalty will not be retroactive, and the eleven inmates currently on death row, including Cheshire murderers Steven Hayes and Joshua Komisarjevsky, will not be affected.

State Continues to Encourage Hiring

Another feature of the State of Connecticut’s Jobs Bill (which we blogged about back when it was passed in 2011) is being touted by Governor Malloy in order to stimulate job creation in the state. The STEPUP program will provide funds for companies to hire and train new employees who have been previously unemployed. The employer must be a small business with less than fifty employees. The benefits include a wage subsidy for each eligible employee for up to six months. During the first month of employment, the program covers up to 100% of the eligible employee’s earnings, up to $20.00 per hour, exclusive of benefits. Months two and three provides up to 75% of the employee’s wages; months four and five provides up to 50%; and months six provides up to 25%.  Funds will also be available for small manufacturers to cover new employee training costs. For more information about qualifications check out the fact sheet availableonline.

For Easter, Avoid Dyed Rabbits

Although it might seem cute and a good idea for an Easter gift, it is illegal in Connecticut to offer for sale any dyed chickens, ducklings, other fowl or rabbits. According to the statute (CGS 53-249a), a person who dyes, colors or otherwise treats an animal so as to make them an artificial color is guilty of a crime and subject to a $150.00 fine. As "A Connecticut Law Blog" succinctly wrote on this issue, "Don't Dye the Easter Bunny."

Questions or Comments? Contact Jared Cantor.

U.S. Supreme Court - Strip Searches of All Incoming Inmates Constitutional

On April 2, 2012, the U.S. Supreme Court ruled that the 4th Amendment to the U.S. Constitution did not prohibit jail authorities from performing strip searches of all incoming inmates, regardless of whether the inmate was being held on a minor crime. The facts underlying that decision, as reported in numerous news outlets such as the New York Times, involved the arrest of Albert Florence, who was a passenger in his wife's car when she was pulled over in New Jersey for speeding. When a record search was performed, the computer inaccurately reported there was an arrest warrant for Mr. Florence because of an unpaid fine (the fine actually had been paid years earlier). Mr. Florence was then arrested and held for one week in two separate jail facilities, being strip searched in both when he was admitted. Mr. Florence then sued, claiming a violation of his right under the 4th Amendment to be free from unreasonable searches.

Questions or Comments? Contact Jared Cantor.

Thinking of Writing Someone’s Term Paper? Think Again, as it’s Against the Law

As final exams approach, students often find themselves swamped with papers, exams and assignments and not enough time to complete them all before the end of the semester.  In such a moment of exasperation, overwhelmed student A may turn to someone, such as student B or an online service C that writes papers for students, for “help” in writing that lengthy term paper or finishing an assignment in exchange for a sum of money.  Although the assignment will now be finished in time, student A may worry about someone finding out that the assignment was not really written by him/her and the possibility of academic sanctions.  Student B, on the other hand, may think that he/she is in the clear because it is student A that is submitting the assignment that A did not actually write.  Company C too may feel safe because its terms of use disclaim any liability for whatever student A does with the purchased report.

In Connecticut, however, student B and company C should be worried because it is against the law for B or C to prepare A’s “term paper, thesis, dissertation, essay, report or other written, recorded, pictorial, artistic or other assignment” when it is submitted under A’s name as if the work was his or her own.  Student B and company C do not even have to know that A will submit the paper under his/her own name, the law makes B and C liable if “under the circumstances [they have] reason to know” student A will submit the paper under his or her own name as if A wrote it.

Connecticut takes this issue so seriously that under the law, the Attorney General is tasked with bringing a lawsuit against student B or company C seeking an injunction preventing them from continuing to write other students’ papers.  For writing A’s paper, student B may also be charged with a class B misdemeanor, for which student B could spend a maximum of six months in jail and be fined not more than one thousand dollars.

Questions or comments? Contact Jared Cantor.

Finding a Lawyer Online – The Case of Shpoonkle

Increasingly, third party companies are creating websites offering their service in matching consumers with an attorney, often with the promise of finding the cheapest attorney available. The question becomes, are these online services good for the consumer, the potential client, and for the lawyer and the legal profession as a whole?

As opposed to a law firm’s website, which may offer information about the firm, the lawyers and the type of practices areas the firm handles and which may also allow individuals to submit information in confidence to the firm to be reviewed by an attorney, online services such as “Shpoonkle” work on the reverse auction model. Under this method, an individual seeking an attorney becomes a member of the website, posts information about his or her case, and the lawyers, who are also members of the website, review the facts of the case and “bid” against other lawyers to offer the lowest rates. The lowest bidding “winning” lawyer is then presented to the consumer.

Rather than meeting face to face as part of the traditional process of hiring a lawyer, websites such as Shpoonkle put the entire process online without allowing face to face meetings or talking on the telephone.  Additionally, Shpoonkle makes it so that lawyers reviewing the case are not given identifiable information about the individual and the individual is not given identifiable information about the lawyer or his or her firm. Unlike specifically contacting a firm to determine if you want them to be your lawyer, no one really knows who someone is until the deal is sealed and the attorney-client match is made.

Shpoonkle and similar lawyer-client matching services were recently discussed by Mark DuBois, the former chief disciplinary counsel for Connecticut, who raised several important ethical concerns for lawyers and practical concerns for clients. For instance, with anonymous bidding system, how can the attorney fulfill his or her duty to do a conflict check? What if an attorney begins an attorney-client relationship, only to find out the individual has interests adverse to an existing client? Similarly, from the individual’s perspective, what if you divulge sensitive information to the anonymous prospective lawyer, only to learn that he or she cannot keep you as a client because of a conflict?

Other commentary on Shpoonkle has ranged from complimentary, with blogger Susan Cartier Liebel calling Shpoonkle’s creator “innovative, entrepreneurial,” and well known blogger Jolie O’Dell of Venturebeat saying it is a “great idea,” to a more neutral review from the American Bar Association Journal, describing it as “no joke.” Amplifying DuBois’ concerns, however, criminal defense attorney Scott H. Greenfield wrote in his blog that “Any lawyer who signs up for this service should be immediately disbarred, then tarred and feathered, then publicly humiliated,” and he went on to express his concerns over the commoditization of the legal profession.

Questions or Comments? Contact Jared Cantor.

What Type of Automobile Insurance Coverage Should I Carry?

            There are many different variables to consider when purchasing automobile insurance.  The minimum insurance limits in the State of Connecticut for motor vehicle liability coverage is $20,000 per person and $40,000 per occurrence.  Essentially, this means that if you are responsible for causing an accident, the most any one person can collect from the bodily injury portion of your insurance coverage is $20,000 and the most any number of claimants could recover from one accident is $40,000.   Of course, how much insurance to carry is a personal choice and will be governed by financial considerations as well as recommendations from your insurance agent or broker.

            In terms of the amount of coverage, one has to consider what type of protection is needed to cover personal assets.  Also, some individuals feel more secure having a larger policy, with for example, a $300,000 or higher limit.  Surprisingly, an extra $100 or $200 in annual premiums may correlate to $200,000 in additional liability coverage.  Furthermore, limits for underinsured and uninsured motorist coverage may be crucial if a claim ever needs to be made.  Generally speaking, most insurance agents will write the same amount of coverage for this portion of your policy that is written for liability limits.  Nevertheless, you may ask for higher limits of uninsured/underinsured motorist (UM/UIM) protection.  If you are injured in an accident that is the fault of an uninsured driver or one with low limits of coverage, it is important to have sufficient protection on your own policy. 

            Two other factors should be addressed when buying a policy.  First, one should consider conversion coverage.  This is an option that, in effect, “stacks” your policy onto that of a tortfeasor (another party who causes an accident) in which you or someone covered under your policy is injured.    In other words, if someone at fault has insurance coverage that is not inadequate to pay your fair just and reasonable damages for injuries which have been sustained, conversion coverage allows you to place your underinsured motorist coverage on top of the responsible party’s coverage regardless of what your limit of underinsured motorist coverage may be.  This is in contrast to the typical scenario whereby you would only be able to collect that amount of underinsured motorist coverage which is in excess of the tortfeasor’s policy.  Second, a decision should be made as to whether or not to purchase medical payments coverage.  Regardless of fault, medical payments coverage will pay for medical treatment necessarily incurred as a result of a motor vehicle accident.  This is generally an inexpensive add-on to your policy, but can be very useful if you do not otherwise have health insurance, or, alternatively, have high deductibles and co-pays for doctor’s visits.

Questions or comments?  Contact Attorney Bruce Newman at

bnewman@bpslawyers.com

The Fatal Impact of Statutes of Limitations

One Connecticut woman found out the hard way that legal time limitations can make or break a case.

In 2003, and again in 2008, Jennie Finkle sued the Town of Watertown and several police officers in connection with the death of her daughter, Barbara Eckert. On September 29, 2002, Barbara was murdered by Mark Tannenbaum, her estranged ex-boyfriend and father of one of her children. The murder came after a lengthy period of domestic violence and a series of run-ins with the Watertown police. After another violent disturbance on September 28, 2002, Tannenbaum was released from custody by the police and almost immediately returned to Barbara’s residence where he murdered her and then killed himself.   Barbara’s mother sued several police offers and the City of Waterbury in civil court for damages, but, because the wrong officers were sued, the original suit was withdrawn and the operative suit was not brought until November 6, 2008. 

The procedural miscalculation occurred when the original case was withdrawn rather than dismissed. This withdrawal made it so that the Eckert could not bring suit under Connecticut’s “wrong party” statute, Conn. Gen. Stat. 52-593, which would have enabled her to overcome the two year statute of limitation issue.

On September 17, 2010, the trial court ruled that even though Finkle’s original action, which was brought in 2003, well within the two year statute of limitations contained in Conn. Gen. Stat. 52-555, the operative case, which was brought in 2008, was barred by the statute of limitations. Finkle appealed the decision, and on Monday, March 12, 2008, the Connecticut Appellate court, in a 3-0 decision, upheld the trial court’s ruling that the suit was filed after the operative two year statute of limitation, and therefore, Finkle was not eligible to pursue negligence claims against the defendants. It is unclear whether Finkle and her attorneys will seek to have the case heard by the Connecticut Supreme Court.

As a Homeowner in Connecticut, You Have the Right to Deny Zoning Enforcement Officers Entry onto Your Property

Many Americans are aware of their right to refuse law enforcement officials’ request to enter onto their property or into their homes.  If you refuse them entry, the law requires law enforcement officers to seek a warrant from a judge based on “probable cause,” except in limited emergency circumstances.

Recently, the Connecticut Supreme Court was presented with the question of what happens when a town’s zoning enforcement officer demands to specifically search a homeowner’s property for evidence of zoning violations and the homeowner refuses.  In that case, released February 14, 2012, and discussed in the Connecticut Law Tribune, the homeowners had refused to allow onto their property the zoning enforcement officer for the Town of Bozrah, who had been specifically instructed to search their property for unregistered motor vehicles and “other junk.”

In reaching its decision, the Connecticut Supreme Court took the principles underlying the protections afforded by the Fourth Amendment to the U.S. Constitution one step further, requiring that, when a homeowner denies a zoning enforcement official’s request to search their property, that official must then seek a court order (warrant) allowing them onto the property and the court, in reviewing such a request, must abide by a specific standard.  Specifically, the state Supreme Court held that “before a court may issue an order permitting a zoning enforcement officer to enter and search a particular property, there must be a preliminary showing of facts within the knowledge of the zoning officer and of which the officer has reasonably trustworthy information that are sufficient to cause a reasonable person to believe that conditions constituting a violation of the zoning ordinances are present on the subject property.”

In short, the zoning enforcement officer must respect a homeowner’s refusal to allow the officer onto their property and a court, before ordering a homeowner to allow the officer onto the property, must be certain that the officer has trustworthy and factually specific information that there is a zoning violation on the property, rather than a mere suspicion or a desire to conduct a ‘fishing expedition’ on a homeowner’s property.

Questions or Comments? Contact Jared Cantor.

Facebook: A New Way to Be Served?

A high court judge in England ruled last week that Facebook could be used to serve legal claims. 

“Justice Nigel Teare permitted the unconventional method of service during a pretrial hearing into a case which pits two investment managers against a brokerage firm they accuse of overcharging them.”  The Plaintiff’s attorneys were unable to locate either the home address or email address of one of the defendant brokers.  However, the Plaintiff’s law firm had been observing the Defendant broker’s Facebook and saw that the defendant continued to add new “friends.”  A fact which made the judge chuckle. 

Facebook has declined to comment on this most recent way in which Facebook can be an inconvenience.

Lost in Translation – A Twitter Post Can Ruin A Vacation

By now it is becoming all too common that someone posts a joke or sarcastic remark on Twitter or Facebook and they immediately regret it when the post offends someone, reveals too much personal information, or draws the attention of law enforcement, which is increasingly monitoring social media networks for evidence of crimes, particularly terrorism.  A British couple flying from England to Los Angeles learned this lesson the hard.  Right before Leigh Bryan and Emily Banting left England to fly to the U.S., Leigh posted on Twitter “Free this week for a quick gossip/ prep before I go and destroy America?”  What he meant was that he and Emily were going to the U.S. and were going to “party hard,” as it is common slang in England to say something like “this last weekend we destroyed the club.”  This explanation, however, did not go over well with U.S. border patrol agents or the Department of Homeland Security, who had agents waiting at the gate to detain the couple and interrogate them about their intent to “destroy America.” 

Fortunately, the couple was not charged with any crimes. Unfortunately, following being held in detention, the couple was sent back to England on the next flight, their long sought after dream vacation to the U.S. ruined because of an errant tweet and the gap between American English and British English.  The lesson: be careful what you say, be conscious of who may read your public missives and consider whether what you say can be easily misunderstood, particularly by law enforcement.

Questions or Comments? Contact Jared Cantor.

National Foreclosure Settlement Reached

An historic settlement agreement has been reached between the federal government, 49 states, and the nation’s five largest mortgage servicers, Bank of America, Citi, JP Morgan Chase, Ally/GMAC and Wells Fargo. The Settlement was entered into after investigations found that these servicers routinely signed foreclosure documents in violation of federal law. The settlement is intended to provide benefits to borrowers whose loans are or were owned or serviced by these banks. Unfortunately, it’s unlikely that borrowers will get any immediate help from the agreement, which is to be executed over the next three years. Those borrowers who are eligible for assistance under the agreement are slated to receive written notice in the next six to nine months.  To find out more, visit the settlement website http://nationalmortgagesettlement.com/.

Yelling Fire In a Crowded Theatre

…is still not allowed. A Fed Ex delivery driver found this out the hard way last month while delivering a package to the Camp Williams military base in Salt Lake City, Utah. When asked what was in the package, he replied that it was “probably a bomb.” Over 200 people were immediately evacuated after the comment and the driver was arrested and charged with third degree felony and threat of terrorism.

Breakthroughs In Same Sex Marriage Laws

Just days after the 9th Circuit repealedCalifornia’s “Prop-8” ban on same sex marriage, the Washington State House passed a same sex marriage bill by a vote of 55-43. The bill is expected to be signed into law by Governor Chris Gregoire in the coming weeks. After her signature, the law will go into effect in 90 days, meaning the first marriages can take place as early as May, 2012.   

In November 2008, Connecticut became the third state to legalize same sex marriage with the decision by the Connecticut Supreme Court in the case of Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008).

New York, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia have also passed laws allowing same-sex marriages.

Practice Clearing Snow and Ice off Your Car – Before it Costs You

In response to public pressure following the winter of 2010, when several accidents resulted from snow and ice flying off of commercial trucks and striking the cars following behind them, the Connecticut legislature passed a law in June 2010 making it a motor vehicle violation for drivers of passenger and commercial motor vehicles to operate their vehicles on the state’s roads and highways without first clearing off any accumulated snow and ice from the trunk, hood and roof.  Public Act No. 10-182.  If you fail to do so, and if the accumulated snow and ice pose a “threat” to other drivers, people or property, the police can pull you over and write you a $75 ticket.  The law does not indicate when accumulated snow and ice pose a “threat” – that decision appears to be left to the discretion of the police.  See subsection (a).  What the law does make clear, however, is that you do not have to stop driving during a snow or ice storm to clear the snow or ice off your car, so long as the snow or ice storm began after you were already driving. See subsection (c).

More significantly, if, after failing to clear off any accumulated snow and ice, you drive your passenger vehicle and the accumulated snow and ice then fly off your car and injure a person or damage property, you can be fined between $200 and $1000.  If you are the operator of a commercial vehicle, the fines range between $500 and $1200.  Partly in response to the commercial trucking industry’s concern over imposing fines on commercial vehicles, the Connecticut legislature elected to create a three year period before the law went into effect, currently set for December 31, 2013, so that owners and operators of commercial vehicles could implement procedures to clear snow and ice off of large vehicles, such as tractor trailers.  Moreover, the three year window provides regular motorists ample notice that driving with accumulated snow and ice is a violation subject to relatively significant fines and, therefore, motorists should get into the habit of completely clearing snow and ice off of their cars before driving.

Questions or Comments? Contact Jared Cantor.

Buying or Selling a Business or Commercial Property?

In Connecticut, owners and prospective purchasers of businesses or properties where businesses now operate or have operated in the past, need to be aware of Connecticut General Statutes, Sections 22a-134 through 22a-134e, known as the “Transfer Act” or “Transfer Law.” The Transfer Act requires the disclosure of certain environmental conditions when properties or businesses which are defined as “establishments” under the terms of the Transfer Act are transferred.  The Connecticut Department of Energy and Environmental Protection (DEEP) developed its Property Transfer Program to implement the Transfer Act.

For purposes of the Transfer Act, any piece of property or business on or from which, at any time on or after November 19, 1980, there was generated 100 or more kilograms of hazardous waste in any one month; or any property or business on or at which hazardous waste from another location was recycled, reclaimed, reused, handled, stored, transported or disposed of, will be considered to be an “establishment” (although there are some exceptions)  Additionally, any property on which, after May 1, 1967, dry cleaning or furniture stripping was conducted, or on which a motor vehicle body repair facility was located, will be considered to be an “establishment.”

A transfer will usually mean any change in ownership of an “establishment.” Depending upon the type of property and/or entity which is being transferred (land, business, assets, or a combination of these) and whether a release of any hazardous substance has occurred at or on the property or business, one of several different Property Transfer Forms, published by the DEEP, must be completed and signed, and a copy provided to the DEEP. 

In all transfers governed by the Transfer Act, an investigation of the property will need to be undertaken by a qualified environmental professional, in accordance with standards and guidelines promulgated by the DEEP.  If a hazardous substance has been released on the property, the parties to the transfer will be required to determine which one will agree to investigate and remediate any pollution which has resulted.

For more information about the Transfer Act and the Property Transfer Program, visit the Department of Energy and Environmental Protection’s website at:

http://www.ct.gov/dep/cwp/view.asp?a=2715&q=325006011612post.docx&depNav_GID=1626

Have questions or comments?  E-mail Attorney Tony Stevens at wstevens@bpslawyers.com

Police Can’t Use GPS Monitoring Without A Warrant

A U.S. Supreme Court decision handed down yesterday in US v.Jones ruled against a joint FBI/D.C. police team that illegally monitored nightclub owner Antoine Jones’ jeep with a GPS device for 28 days.  The GPS tracking device led the joint team to discover Jones at a house with 100 kilograms of cocaine and $850,000.00 cash. Jones was convicted of conspiring to sell cocaine and sentenced to life in prison. The court ruled that GPS monitoring without a warrant constituted an unconstitutional search under the fourth amendment. Based on the illegal search, Jones’ conviction was overturned.

Image by J_Alves; used pursuant to Creative Commons license.

Lights, Camera, Action – All in a Criminal Courtroom

People arrested for the first time may believe that they have a right to be shielded from the media’s flashbulbs and camera lenses when inside of a courtroom attending a hearing, including at their first court appearance, legally known as an “arraignment.”  As made clear in a recent Connecticut Law Tribune article, however, in Connecticut this is not true.

Beginning January 2012, the Connecticut Judicial Branch has instituted an expansive set of new and revised rules governing media attendance at state court criminal proceedings.  See Practice Book §§ 1-10A, 1-10B, 1-11.  The breadth of the change in the Judicial Branch’s policy is evident from the fact that the old rules stated that courts should prohibit media from broadcasting criminal proceedings, whereas the new rule explicitly provides that “[t]he broadcasting, televising, recording or photographing by the media of court proceedings and trials in the superior court should be allowed,” subject to certain restrictions.  Practice Book § 1-10B (a).  The new provisions also contain procedures for the media to file a request to attend a defendant’s arraignment and to have one still photographer, one cameraman and/or one audio recording device record the proceeding.  Practice Book § 1-11A.  The new rules, however, do not apply to certain types of cases, such as juveniles or sex crimes.  Practice Book § 1-10B.  For the time being, those defendants retain a right to privacy inside of a courtroom.

If a person commits a crime, they should now expect the media to be present not only at their front door or the door to the courthouse but also inside the courtroom, capturing every minute of what for most people are the worst moments of their lives.

Questions or comments? Contact Attorney Cantor.

WIKIPEDIA BLACKOUT

Wikipedia has instituted a 24 hour black out as a means of protesting two online piracy bills that have been introduced in the US House of Representatives and US Senate. The bills, dubbed SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act), are intended to hamper the rampant online piracy perpetrated by foreign websites, but the bills’ opponents claim they violate the first amendment and are little more than internet censorship.

The White House has spoken out against the bills, and with all the negative attention they are garnering, passage in their current form seems unlikely.  

Your Hacked Email Account Can Come Back to Haunt You

Changing email addresses is a part of life – what was a cool email address in high school or college often becomes undesirable as an adult or professional email address.  People also change email providers over time, such as from Yahoo! to Gmail.  What people usually fail to do, however, is to delete or close old email addresses/accounts.  Why does this matter?  It matters because people regularly use weak passwords to protect their email accounts, rendering them easy to hack and enabling scammers to co-opt unused email accounts as part of “phishing schemes.”

Phishing schemes often occur in two forms.  The first is when scammers send out emails that appear to be official communications from banks, financial institutions or e-commerce websites such as Amazon or E-Bay, asking users to confirm some of their account information, such as social security number or password.  When people click on the link in the email they are taken to a spoofed website that looks just like the real logon page for Bank of America or Amazon.  Users then enter their personal information, which is collected or “phished” and forwarded to the scammer’s email account(s).  Another type of phishing scheme is when scammers hack an email address of someone you know and trust and use that account’s address book to send you and other people emails asking for financial assistance or other personal information.  The second type of attack occurred just recently when an Ohio politician’s email account was hacked and messages were sent to individuals in her address book asking them to wire her money in England, where she was allegedly stranded after being mugged.  Needless to say she was not stranged in England and luckily no one wired any money.

As part of both phishing schemes scammers use hacked email addresses to either entice victims or to hide their location and identity.  This is where legitimate but unused email accounts come into play.  By allowing your old email account to remain active and unmonitored, hackers and phishers can use it as part of their illegal activities.  When police or other authorities begin tracking down the scheme’s perpetrators, the innocent owner of the email account, whose information is on file, risks becoming embroiled in the investigation.  Indeed, help forums for many popular free email services reveal dozens of postings by users worrying that their account has been hacked and used for a phishing scams.  Just as people should not leave their passwords lying around, they should also not leave unused email addresses active and unmonitored.  Take a moment today and close unused email accounts.

If you suspect your email account has been hacked, the following resources are available:

For Hotmail users - http://explore.live.com/windows-live-hotmail-hacked-account-faq

For Yahoo! users – http://help.yahoo.com/l/us/yahoo/mail/classic/contacts/spam-03.html

For Gmail users - http://support.google.com/mail/bin/answer.py?hl=en&answer=50270

Questions or Comments? Contact Jared Cantor.

Connecticut Residents Eligible for Storm Credit from CLNP

CLNP is extending a credit of up to $200.00 for customers out of power during the October Nor’easter, also known as Winter Storm Alfred. All customers without power after noon on Saturday November 5, 2011 are eligible to apply. The credit is a minimum of $100.00 and can go up to $200.00. The actual amount will depend on the number of customers who apply for the credit. For more information visit CLNP’s website. Customers can apply online. The deadline to apply is 5 p.m. on January 31, 2012.

Connecticut Businesses Must Now File Annual Reports Online

All Connecticut businesses will now be required to electronically file their annual reports with the Secretary of State. The new online requirement went into effect on January 1, 2012 with the passage of Public Act No. 11-146. The new law also requires businesses to provide an email address to the Secretary of State so that email notifications and reminders can be sent.  Annual reports for registered business entities are due by the end of the month that the entity was incorporated. Reports can be filed online at http://www.concord-sots.ct.gov/CONCORD/index.jsp

 According to a press release from Secretary of State Denise Merrill, the online requirement is expected “to save taxpayers hundreds of thousands of dollars annually, streamline and improve customer service, and eliminate the use of at least two tons of paper processed by the Secretary of the State’s office every year.”

Questions or comments? Email Attorney Regina von Gootkin at rvongootkin@bpslawyers.com.

Beware: Ridiculous Lawsuits

When does a wrong or injury merit bringing a lawsuit for compensation?  While speaking with a qualified and experienced attorney can help you come to a conclusion about the merit of a potential court case, some cases would strike almost any person as obviously frivolous.  In an effort to bring to light some of the many frivolous and egregious lawsuits clogging the American judicial system, Faces of Lawsuit Abuse.org recently released the results of its readership poll for the most Ridiculous Lawsuits of 2011.  Viewers voted the winner of the most ridiculous lawsuit of 2011 to be a suit in which “[a] man who kidnapped a couple at knifepoint while he was running from the police is now suing the victims, claiming that they promised to hide him in exchange for an unspecified amount of money.  The plaintiff, currently in jail, is seeking $235,000 for the alleged ‘breach of contract.’”  Also included on the list of ridiculous lawsuits of 2011: Children suing their parents for not including money when sending cards, a 300-pound man suing White Castle restaurants for not having booths available to accommodate persons of his size as well as a New York mother suing her four year-old daughter’s private preschool for using a curriculum the mother claims has damaged her daughter’s chances of attending an Ivy League university someday.

Divorced Parenting During the Holiday Season

As the holiday season comes to an end, many are reminded of the stress that can accompany all of the joy and celebrating.  There are often additional challenges during the holiday season for families who have been through a divorce.  As recently reported in the Huffington Post, parenting during the holiday season for divorced parents can be particularly stressful.  However, the article notes that flexibility is crucial to minimizing that stress.  Divorce typically entails the processes of restructuring of families, redefining relationships, and developing new traditions.   Remaining flexible can help with these processes at all times but particularly during the holiday season.  Parents should try to be flexible with their traditions, dates of celebrations, as well as who is in included in their traditions and celebrations.  This flexibility may be the key for some to making the holiday season more enjoyable for all.