Social Media and Litigation: Why you need to be wary of posting online?

                It is common for most of our society to be on social media. At this point, even most of our grandparents have a Facebook page. While this is a great way to connect to people online, it also presents potential problems for those of us engaged in potential or ongoing litigation. As many people like to say, beware what you post on social media! This is good general advice, but also good legal advice. Social media requests have become common place in litigation discovery requests, and courts are not as reluctant to order that information released.

                The most common requests are for Facebook posts. While most Courts will not allow complete access to a Facebook page of a party, they will look into specific posts related to the issue at trial. So, for example, assume a person is involved in a car accident. They were injured, but for the most part escaped serious injury. After the accident, the person posts that they are lucky to survive, but are going to sue the other driver and get a big judgment and they want money. Lots of money. Further, as the case goes on, this same person posts multiple times images of them running marathons, doing strong man competitions and playing sports. In this situation, almost all of those posts can be made public. This is because they go to the actual issues in the case, and the damages claim for the injured party. The post about wanting money can be argued as they are looking to just get paid, and not that they are actually really injured. The posts about their physical activity can be used to show they aren’t hurt. In these situations, those posts can be used against a person.

                These posts can also help. Let’s say the same person is really badly injured, and their social media posts cover their recovery from their injuries. There are posts and pictures of them in rehab and physical therapy, post-surgical pictures, and even posts from their friends on their page lamenting how difficult everything has been for them. These can be used to support the claimed damages.

                Regardless, all of us have to be conscious that our social media posts are for the most part public, and can be used against us. Some of us are aware of this anyways in how we see Twitter and Facebook posts go “viral”. It’s important to be careful about what we post online, especially if you are in litigation. We often advise clients to reduce their posting, and while that is more difficult for the younger generation, it often helps in the underlying case.

                At Parnell, Michels & McKay, we stay apprised of all developments in the law, including how social media affects our clients and their cases. If you are involved in potential litigation and need legal help, contact us to find out how to protect yourself. 

OCTOBER 20-26, 2018 IS NATIONAL ESTATE PLANNING AWARENESS WEEK!

            Congress has designated the third week in October as National Estate Planning Awareness Week (October 20-26, 2018).

            It is estimated that at least 60% of Americans do not have an estate plan.  Most people think that only older adults need to have an estate plan.  However, it’s important for younger people to have a Will, especially if they have minor children.  A proper estate plan will provide for a guardian for your minor children to ensure that they’ll be cared for by the people you want as guardians in the event of your death or incapacity. Yet, based on a recent AARP survey, 78% of people age 18-36 and 64% of people age 37-52 do not have a will. 

Without an estate plan such as a Will or Trust, when you pass away, your affairs will be settled pursuant to the intestate laws of the state where you reside.  The intestacy laws may not provide that your assets go to the people you want to receive your property.  In fact, depending on the size of your estate and how your assets are held, your spouse may not receive the entire estate.  It is especially important to have an estate plan if you have a blended family, especially if you want to provide for your children from a prior marriage.

If you don't have an up-to-date estate plan, including durable powers of attorney, and you are unable to manage your financial affairs due to incapacity, the courts will appoint someone to manage them for you.   If you have not designated the individual that you would like to be your agent, the court may appoint someone that you would not want to perform those responsibilities.

A good estate plan starts with a planning meeting with your attorney and proper drafting and signing of appropriate legal documents such as wills, trusts, financial durable powers of attorney and a health-care power of attorney. Having a properly designed estate plan will help your family get through a very difficult and emotional time.

If you would like to discuss your estate plan, please contact an attorney in our office. The attorneys at Parnell, Michels & McKay have the experience necessary to design an estate plan to achieve each client’s goals and needs.

Workers’ Compensation: What am I entitled to?

                A person that gets injured at work is often unaware of the process involved in workers’ compensation cases, and even more unaware of what they are entitled to. In the first instance, the most important thing is getting medical treatment for the injury they sustained. If the injury occurred within the scope of employment, the workers’ compensation insurer is required to pay for all related medical bills. So, if a person hurts themselves badly at work and has to go to the emergency room, then the workers’ compensation insurer will have to pay for it. In order to have them pay in the first instance, the employer and employee complete a first report of injury. This specifies what happened, where it happened, and how it happened. Then the employee gets the insurance information in order to have the medical provider bill the workers’ compensation insurer directly.

                If the injury takes the person out of work, in New Hampshire the person is entitled to what are called “indemnity benefits”. This is a term that really means “wage benefits”. A person gets paid for the time they miss from work, and in NH this means sixty percent (60%) of their average weekly wage. Thus, if the person makes $1,000.00 per week, their workers’ compensation benefit should be $600.00 per week. In Massachusetts, this figure is virtually identical. However, in Massachusetts, if a worker can prove a permanent and total disability, they would be entitled to sixty-six percent (66%) of their average weekly wage.

                A person may also be entitled to a permanent impairment award. This is only in cases where a person suffers a permanent injury. In NH and MA, the person is entitled to a specific one-time award for this permanent disability. Further, while in MA a person may be entitled to scarring and disfigurement awards without the necessity of a permanent injury, a person in NH can only obtain a scarring and disfigurement award if it is part of another permanent disability from the injury.

                Workers’ compensation cases are very complicated, and very often contested. There are usually multiple hearings on any given case, and navigating that process in NH and MA can be very difficult without counsel. The experienced attorneys at Parnell, Michels and McKay can help injured workers navigate this process effectively, and allow them to recover the full amount they are entitled to. If you are in need of legal help from a work related injury, please contact our office to find out what your rights are.

WHAT ARE CHARGING ORDERS AND HOW DO THEY AFFECT MY LIMITED LIABILITY COMPANY?

            Congratulations!  You are opening your first business and you have decided to form a single member limited liability company (LLC).  The LLC provides similar liability protection as that of a corporation.  For example, if there is a judgment against the LLC for money damages, in most cases, the LLC judgment creditor cannot attach your personal assets.  However, what if one of your personal creditors has a judgment against you?  If you had incorporated, the judgment creditor may be able to reach your shares in the company as they are personal assets.  But can the creditor reach the assets of your single member LLC?  This is where the charging order comes in.  A creditor may ask the court to enter a charging order requiring the company to forward any distributions you are entitled to receive from the LLC to the creditor.  Although the charging order can reach distributions (usually profits) payable to you, it generally cannot require the LLC to forward any monies which are earned income (i.e. wages) and it cannot force the LLC to make distributions.  In other words, the judgment creditor doesn’t get to stand in your shoes and vote your membership rights.

            But wait a minute – if you are the sole member and the charging order doesn’t allow the creditor to direct any distributions from the LLC, what if you just don’t take any distributions until the statute of limitations on the judgment expires?  In that case, the judgment creditor does not receive anything.

            Well that seems too easy – and it is.   If the creditor can show that the judgment cannot be satisfied in a “reasonable time,” the creditor has the right to challenge the LLC protection.  If successful, the court would force a sale of both your financial and management rights of the LLC.   If there are significant assets of the company, this could be a financial disaster to the member, both personally and for his or her business.  Often, the creditor is the successful bidder at the execution sale and, the creditor can take over your company and, presumably, vote that the LLC pay the distributions or sell off the assets to satisfy its judgment.  But whether it is the successful bidder or not, the creditor would get paid what it is due from the proceeds of the execution sale.

            For all of the reasons above, you may want to consider bringing in a spouse or adult child as a minority member.  This makes your company a multi-member LLC with you as the manager.  As a multi-member LLC, the judgment creditor can still get a charging order against your economic interest in the LLC but it cannot force a transfer of your noneconomic interest (i.e. voting and management rights).  The state law makes a distinction between multi-member and a single member LLCs to protect the other members of the LLC under a theory called “pick your partner.”  In other words, the other LLC members did not intend to become partners with your creditor and the state is reluctant to force them to accept the creditor as a potentially unfriendly owner of your interest.    

When forming your business and choosing the correct entity, contact the attorneys at Parnell, Michels & McKay, PLLC.  We offer advice to all types of corporations, limited liability companies and other business entities designed to achieve each client’s goals and needs. Contact us here if you need our assistance.

FANTASY SPORTS: LEGAL OR ILLEGAL SPORTS GAMBLING

                Fantasy Football is gearing up, and we are on the eve of many drafts and leagues forming for the new season. As attorneys, we often get asked about the legality of sports gambling and in particular, fantasy sports. As some of you are aware, the U.S. Supreme Court struck down a gambling ban from 1992 called the Professional and Amateur Sports Protection Act. Thus, sports gambling is no longer illegal under federal law. However, each state can have laws that restrict or forbids gambling within their state borders. As for fantasy sports, that has been dealt with separately.

                As of May 16 of this year, fourteen (14) states have specifically allowed fantasy sports, and daily fantasy sports to exist (SEE: http://www.espn.com/chalk/story/_/id/14799449/daily-fantasy-dfs-legal-your-state-state-state-look). New Hampshire is one of those states, as Governor Sununu signed the bill into law on July 18, 2017.

                As noted here, the law provides the following:

·         Regulation of the industry will fall to the New Hampshire lottery commission, which is given the power to promulgate some rules to oversee the industry.

·         There is no fee or tax for operators that register with the state. An earlier version of the bill had both an upfront fee and a tax on revenue.

·         Operators must register with the commission, but may continue to operate in the state while the law is taking effect, if they apply for registration.

·         The law sets up basic consumer protections for users at registered DFS sites, including a ban on employee play; the segregation of player funds and operational funds; and responsible gaming protocols.

·         The minimum age for users is 18.

                Thus, daily fantasy sites like FanDuel and DraftKings are specially legalized in the State of New Hampshire. Most importantly, the law mandates you must be eighteen (18) years of age, and provides consumer protections to those using those sites.

                Fantasy sports is something many of us are involved in, and it’s evident that right now all of those that play are not in danger of breaking the law. However, laws can change quickly, and it’s important to know your rights. Here at Parnell, Michels & McKay, we keep ourselves updated on the developments in the law to help he assist all of our clients dealing with legal issues. Contact us today if you need help navigating the legal playing field.

Self-Drivings Cars and the Intersection of Human Negligence and Products Liability

                Self-Driving cars are now becoming more and more popular. Other states, like California, are now allowing them to be operated on their roads in controlled settings. For many of us, this will remind us of movies involving cars that drive themselves while the human in the car is able to relax on their drive. It’s almost like a taxi, but it’s the person’s car and a computer program is driving. Technology is always a fascinating thing, but in this context, what happens when self-driving cars cause an accident?

                As many people are aware, if you cause an accident and are liable, an insurance claim and possible litigation may be brought against you. This would require the person that was hit and injured to prove that the other driver was negligent, and that this negligence caused the collision and the injuries to the Plaintiff. But what about if the car was self-driving?

                This makes these cases potentially much more complicated. First, there is typically a requirement that any self-driving car have a human that is alert and attentive at the wheel. If the collision with a self-driving car is caused by the human’s inattention, then a negligence theory will still work. Second, however, is much more complicated. If the car crash was caused by the computer program, then the negligence standard will not work in the traditional sense. In this case, the likely remedy is a products liability claim. Products liability claims require proving manufacturing defects, design defects, or warning defects. In this sense, the fault in a computer program likely involves the first two (manufacturing and design defects). A manufacturing defect involves a problem that occurs when the product is being manufactured, or created. A design defect is when the design itself is problematic.

                In either circumstance, to prove a self-driving car acted in appropriately will likely involve a blend of negligence and product liability laws. While New Hampshire and Massachusetts aren’t currently dealing with an influx of self-driving cars, it is likely going to happen in the coming years.

                If you are injured by any driver (even a computer), the experienced attorneys at Parnell, Michels and McKay can help you. Contact us if you find yourself in a situation where you need to know your legal rights.

Adoption - A Personal Perspective by Anna M.

Adoption is about what is best for the child not what is best for the parents. As the law states, a child’s needs should come first, or better put, the best interests of the child should come first. The best situation for a child is sometimes to be adopted into a stable home. Financial security and the love of caring parents are both important to a child’s development. The time spent raising a child affects how the child behaves, feels, and ultimately interacts with the world as the person they become. Many factors play into the decision of what is best for the child. It can be hard for birth-parents to give up their child, but adoption can sometimes be the in the best interest of the child. The child may be afforded a better opportunity with adoptive-parents that love them just as much as or more than the birth-parents and can give the child emotional security and stability.

            Yet, the question often remains, will the child end up knowing their birth-parent? Or better put, is open adoption or closed adoption the best option? Often there are legal issues where the decision is out of the hands of the birth-parent. However, in a lot of situations the choice between open, closed, or semi-open adoption and the degree to which it is open is decided by the birth-parents and adoptive-parents. For those who do not know what open and closed adoption is, open adoption is when the child knows the birth-parents and can even have a relationship with them, while closed adoption is when the child is unaware of who their birth-parents are and the birth-parents do not know who adopted their child. Semi-open is a blend of both.

            Closed adoption can be good for both birth and adoptive parents, and depending on the situation, the child. In a closed adoption, the adoptive-parents do not have to worry about the influence of the birth-parents on the child, and the birth-parents can move on from what they gave up since they are not involved in the child’s life. Closed adoption can also be good for the child in that the birth-parents could be a bad influence and could impact their development in a negative way. However, the child would go through their life not knowing about where they came from and will wonder where they would be if they weren’t adopted. They will also wonder who their birth-parents are, and that can create a fantasy parent. This is when a child imagines who their parent was, and creates an unrealistic person in their mind. Moreover, just like fear of the unknown, not knowing who their parents are can haunt someone and affect their emotional development, relationships with others, and their connection to the parents that actually raised them.

            Open adoption can be good for all parties involved. The birth-parents can still see their child grow up and see the good situation their child is in and that they made the right decision to give them up for adoption. However, the birth-parents might be upset that they are not raising their child themselves. Despite the possible emotional issues with the parents, the child gets to have some closure and a possible relationship with their birth-parents. Instead of wondering for the rest of their lives where they came from, who their parents are, and what their life could have been like, the child has peace from the knowledge they receive from having their birth-parents in their life. However, this can create conflict between birth-parents and adoptive-parents, and is a big factor in deciding what type of adoption is best. Moreover, there may be behavioral issues with the birth-parents that caused the adoption in the first place that may make an open adoption untenable.

I can attest to the idea of constant wondering, as I am adopted. I was adopted at birth by two amazing parents and into a wonderful Christian family with two of the best older brothers a sister could ask for. I do not doubt for a second that I am in the best situation. However, that does not eliminate the wondering I have. I have always been curious as to who my birth-parents are, how my life would turn out if I wasn’t adopted, and how much of who I am comes from my biological parents. I don’t know about anyone else, but not knowing things, especially big things such as this, can cause me a lot of stress and anxiety. My mind wanders and flies around looking for answers, only it feels I am never able to land on solid ground. An outsider might say it’s looking for the part of me that has always been missing. There’s something about the biological connection one has to family that you don’t know is absent until you are in a situation like mine. Now, my adoptive parents are my parents. They’re the ones who raised me and they’re the ones who take care of me. But that doesn’t mean I don’t feel as though something’s missing. Not to mention, everything could have turned out differently. Every argument, every fight, every bad outcome is made worse by the idea that there was a possibility it couldn’t have happened. I could have been adopted into a different family or I could have just not been adopted and this whole problem that’s causing me pain could have never happened in these other scenarios. However, just like I wonder about the good that might come from not being adopted, there is also bad.

I say all this because I strongly believe that if I had the opportunity to meet my birth-parents, the wondering would stop. The mystery would be solved. I would have reached the understanding  that I am where I’m supposed to be a whole lot sooner than I did. I know this understanding that I may be disappointed by what I see in them. Still, I would have closure, and that is valuable in itself.

My adoption is a semi-open adoption, although it often feels like a closed one. I know some details about my birth-parents, such as a medical history and that my birth-mother is now married (not to my birth-father) and has three children. That’s it. That’s all I know. To me, that’s not enough.

Since I have turned eighteen, I have started to make steps towards finding my birth parents. I’m not looking for a fairy-tale ending. I know that fairy tale endings are rare in life, but I would like to know. I just want some closure so I can stop wondering, even if the answers may not be what I was looking for.

Open adoption would have solved all these problems. Yet, these problems are nowhere near the possible problems I could have faced if I was not adopted. I am so thankful for my family and for everything they have done for me. I would not be where I am today without them and I am looking forward to seeing how much more I can accomplish and grow all because they gave me the opportunities needed to succeed.

I am quite passionate about adoption. I wouldn’t be writing this if I wasn’t. If I get married and decide to have children, my first step is to adopt or to foster a child. There are children out there that need a safe home with caring parents or guardians. If you’re considering adoption, know that you could be the best place for a child to be and take the leap to provide your love and care that child needs. If you’re considering giving your child up for adoption, think about the child first and foremost. Do what is best for the child, because that is the most important thing.

Written By – Anna M.

Why I Check the Box to Donate to Pro Bono

Editor's Note: This letter appeared in the July 2018 edition of the New Hampshire Bar News, and was also published in the NH Bar's E-Bulletin. 

This past year I have begun a new adventure as something I never thought I would be: a father. As I listen to my now one-year old daughter stumble through words like “What’s that!?” and “Mama” and “Dada”, I think a lot about her future, and my own. I feel responsible for who she becomes, and worry constantly about her. I certainly worry too much, but I care a lot about the world she grows up in, and the lessons I teach her as she grows. It’s important to me that my child is someone who helps others. I was raised that way by my parents, and I pray I can do the same for her. As one of my favorite quotes from Abraham Lincoln (and one I have used often), “When I do good, I feel good, and when I do bad, I feel bad. That is my religion”. I hope to impart that on her as she becomes her own independent person.

Pro Bono is something I am passionate about, and always something I will advocate for. As a program, we do really awesome things for so many people. We help domestic violence victims get protection, we help tenants defend themselves against landlords and their expensive attorneys, we help people with old criminal convictions get new beginnings, and help countless others. This is arguably the most important work I am doing, and something I think about how I can be better at.

When I check the box, I think about all the people we are able to help, the incredible attorneys sacrificing their time to help them, and the communities that benefit from this program.  Checking the box and donating to pro bono helps bring a positive message to our fellow citizens, and the people we represent. This message is important to me, especially as a new dad fretting over the world his one year old daughter is going to grow up in. I think about the help our donations will provide to a program that helps provide access to justice to the most vulnerable members of our society.

Check the box. It will feel good, and it will go to a great cause. Please consider it when you renew your dues this year.

Rory J. Parnell

Parnell, Michels & McKay, PLLC

After Co-Parenting Ends

            This blog has frequently discussed the value of good co-parenting. A common problem many couples face following a divorce is how to parent together in different homes. In general, most cases involving parenting time or decisions invokes New Hampshire’s “best interest of the child” legal standard. This particular legal phrase is frequently found in RSA 461-A, the main statute covering the legal rights and responsibilities for parents. While this legal standard may seem “squishy” to some, the flexibility it provides the field of Family Law helps to ensure that children are properly protected when parents disagree about what is best for their children.

Frequently, co-parents attempt to take their spouse to Court for contempt for failure to follow the parenting plan. A New Hampshire parenting plan has several sections of form language where it encourages the co-parents to put aside their anger with one another to focus on their children. One such section reads, “[e]ach parent shall promote a healthy, beneficial relationship between the child(ren) and the other parent and shall not demean or speak out negatively in any manner that would damage the relationship between either parent and the child(ren).” The inclusion of such language is to help enforce the idea that even if the parents do not get along in all other aspects, they still have a child to raise together. 

Unfortunately, there are times where one parent will use the child as tool in an attempt to worry, anger, and/or alienate the other parent. From a practical standpoint, there is not much a Court can do to make a toxic co-parent refrain from being toxic unless the other parent can prove how such toxic behavior is affecting the child’s best interest. Proving such toxicity can be quite difficult, even if the non-toxic co-parent takes copious notes, writes emails, texts, and generally tries to keep a record of the other co-parent’s bad behavior. In a series of photos, the Facebook page, “Solutions Counseling,” posted a letter from a son to a toxic co-parent, after his age of emancipation from a parenting plan.

Now the letter is not signed, posted anonymously, and potentially typed using a cell phone application, but even the most skeptical eye should consider the letter’s message.  At some point, children grow-up. However, well before that point, children will understand the nature of their parents’ actions long after their parents have split-up. Good co-parenting should never be about “winning” an argument, or who has “more time” with the child. Good co-parenting is fostering a sense of unity so the child does not feel used, scared to talk about issues/problems they are having, or generally unwelcome in home. Good co-parenting assures children feel loved and welcomed in two homes, knowing both parents are there to support them, and not to simply “get back” or “hurt” the other parent.     

The first step to good co-parenting is to make sure there is a well-developed parenting plan that addresses the needs of the children during both parents’ parenting time. The parties do best when they put their self-interest aside and listen to their co-parent’s goals when raising their children. At Parnell, Michels & McKay, our attorneys always counsel our clients to develop a parenting plan that provides for your children’s best interests. We listen to your input and provide advice at each step of the legal process. Our mission to advise people through the difficulties that arise when drafting a parenting plan, modifying an existing one, or simply dealing with a difficult co-parent. If you are interested in learning more about parenting plans, divorce, child support, or any other legal concerns in your life, please contact us to learn more. We want to help you be in the best position to have a positive co-parenting experience.   

The NH Constitution versus Immigration Federal Law: A case study in Woodstock, NH

            As some of you may remember, a border patrol checkpoint in Woodstock, NH resulted in multiple drug arrests of various individuals with small amounts of marijuana. Some of the Defendants challenged these arrests on constitutional law grounds. In a lengthy order, Judge Thomas Rappa of the New Hampshire Circuit Court has politely, but strongly reaffirmed, that where New Hampshire provides greater protections then do federal procedures, the New Hampshire procedures must be adhered to in any search and if they are not, there will be consequences to the prosecution.

            At issue were a series of arrests at a motor vehicle border patrol stop in the Town of Woodstock on Route 93 in August of 2017. United States Customs and Border Patrol agents were working the checkpoint with assistance from local police departments. For several years, the Border Patrol has set up a motor vehicle stop approximately 90 miles from the Canadian border in the Town of Woodstock on Route 93. The primary goal, per border patrol, was to identify immigration violators as part of the federal government’s focus on immigration crackdowns. This time around, in August of 2017, the stop included drug sniffing dogs. If a dog alerted on a vehicle, that vehicle was pulled aside and the local police officers from Woodstock of New Hampshire precincts would conduct a search of the vehicle. Ostensibly, the border patrol had the dogs present to stop drug smuggling. However, the dogs would alert on vehicles with any drugs, including those vehicles with nominal amounts of marijuana for personal use only. In those nominal cases, border patrol had no interest in prosecuting the defendants. However as indicated, assisting border patrol were members of the local police department. While the border patrol was not interested in vehicles containing small amount of drugs, the local authorities were interested and arrested several individuals during the course of the stops.  It was this group of individuals that challenged the arrests claiming that the searches were unconstitutional under New Hampshire law. New Hampshire’s protections under the law for these individuals are greater than those provided under federal law when it comes to searches involving drug sniffing dogs.

            The defendants moved to suppress the evidence of drugs found as a result of these stops. The state argued that since the stops themselves and searches were permissible under federal law and were conducted by federal actors, the local authorities could use the information provided by the federal agents and make the arrests. The defense argued where the prosecutions were in state court the greater protection provided by the law of New Hampshire with regard to searches applied. Since the searches conducted by the federal actors did not comply with state requirements, and because the prosecutions were in NH state court, the court ordered the suppression of all evidence secured as a result of those searches. Ultimately, Judge Rappa found the searches violated New Hampshire constitutional law. It is not clear at this point whether the state will appeal Judge Rappa’s decision.

            This is a situation where New Hampshire’s constitutional rules apply, and the greater constitutional protections afforded by our state were applied. While the immigration issue is a very separate matter, this order demonstrated that if the State wishes to get involved in these stops, they must still follow the rules of the state they are in.

            This unique situation is one of many playing out around the country, as we look at various way to change and apply our immigration and constitutional law. At Parnell, Michels & McKay, we are always looking at developments in the law. If you are concerned about how the law affects you, contact us today.

CIVIC DUTY: TESTIFYING IN FRONT OF THE NEW HAMPSHIRE STATE CONGRESS

                Recently, there has been a significant debate in the New Hampshire house legislature about a rather mundane bill to most people. For the past year or so, Attorney Rory Parnell has attended multiple hearings and spoken to many legislators in New Hampshire in support of a direct deposit bill in workers’ compensation cases.

                The bill itself is very straight forward. If an injured employee is out for six weeks or more, the employee can elect to receive their indemnity benefits (a weekly wage check) via direct deposit. The current rule allows for insurers to mail the wage checks each week the worker is out due to a work injury. Unfortunately, mail is unreliable due to issues with mail carriers, holidays, and delays by the workers’ compensation insurer delaying payments. For those that are reliant on the check each week to pay bills, even a day or two delay can cause havoc on their finances. Now, with the bill set to be signed into law by Governor Sununu, such delays should be a thing of the past.

                While this is an important victory for workers’ compensation claimants, it took many meetings and hours of work by many New Hampshire attorneys and their clients to get this passed. When the original bill was proposed, Marissa Chase, the legislative lobbyist for the New Hampshire Association for Justice (NHAJ) put in countless hours to lobby senators and house members alike in support of this bill. This bill will save insurers time and money, and provide the reliability our injured clients need during the stressful time they are unable to work.

                However, there are many hearings, meetings and committee meetings for such bills. It is important for the legislature to know that the work they are doing will help their constituents. And, while we met resistance from the insurance lobbyists, ultimately through testimony and hard work the bill was able to be passed by the House and Senate.

                This civic duty of engagement is something many more people should think about exercising. The State of New Hampshire publishes pending bills, and invites the public to speak in support of or against such proposals. However, many people are either unaware, or unable to attend such meetings or hearings, as it is often inconvenient and difficult to attend. Attorney Parnell and the rest of NHAJ are proud of all the work the plaintiff’s attorneys and their clients put in to getting this bill passed.

                At Parnell, Michels & McKay, we try to stay involved in both our community, and the formation of the laws that regulate us when we can get an opportunity to do so. If you are interested in the ways our firm can help you when you face problems under the law, or with a particular pending bill, contact us and find out how we can help you.

MEDICAL PAYMENTS COVERAGE UNDER THE TRAVCO CASE

                For those of us that handle injury cases, the TRAVCO decision was a long time coming. Basically, New Hampshire has a no fault coverage on any automobile insurance policy issued in the state. This no fault coverage is called “Medical Payments” coverage, and is regulated by RSA 264:16. As Plaintiff’s attorneys, we long took the position that using the medical payments coverage to pay the health insurance lien was not a “double recovery” within the statute and should be allowed. Insurers refused to honor this, and steadfastly refused to pay any health insurance lien. The Medical Payment Statute forbid a person from recovering from both health insurance and auto insurance for a medical bill related to the accident. However, if the person injured pursue a third party claim against the person that hit them, then that can trigger a “subrogation” right (i.e. a right of reimbursement) by the health insurer for proceeds from the third party injury case.  Thus, the argument that there is no double recovery, and that medical payment coverage can be used to pay a health insurer’s lien if any medical payment benefits remained.

                The TRAVCO case found that in such situations, the Plaintiff has not had a “double recovery” and mandated that the auto insurer pay off the health insurance lien up to the applicable medical payments limits. This is important, as in the past, this was not being allowed by insurers. Now, the New Hampshire Supreme Court has ruled the Plaintiffs were correct, and finally the statute can be used to help protect those it was intended to protect when first drafted.

                A special thanks to the New Hampshire Association for Justice (an organization Parnell, Michels & McKay has been a proud member of for many years) for their tireless work in helping get the New Hampshire Supreme Court to find in the Plaintiff’s favor.

                If you find yourself injured due to no fault of your own, please contact us and let us put this new law to work on your behalf.

Probate Law in NH - An Overview

This article discusses the basics of Probate procedure in New Hampshire . We will try to provide a broad overview of the process of probating an estate. You also can get a good overview of the process from the court’s perspective  by going to the court’s website, www.courts.state.nh.us/probate. You will find a lot of “how to” materials including checklists, forms and a handbook on administering estates.  In fact, the court’s online information may be all one needs for handling small and uncomplicated estates. However, as stated in the handbook, the information available “is not a substitute for legal advice”. Accordingly, should you find yourself in the position as the executor or administer of even a small uncomplicated estate, you should give serious consideration to meeting with a lawyer to review the various issues and your options. A simple session or two can help you avoid making potentially serious mistakes. Conveniently, all probate matters are now part of the e-filing system, which is designed to make filing with the Court easier.

 At the heart of probate administrative procedure is the concept of “fiduciary duty”. It is the standard by which the executor/administrator’s performance judged. In fact you will often see administrators/executors referred to as fiduciaries. A fiduciary duty is the highest standard of care imposed at law. A fiduciary is required to be extremely loyal to the estate and may not put their personal interests before their duty to the estate. Any deviation may result in the executor/administrator being personally responsible for any loss sustained by the estate. This is why a corporate surety fiduciary bond is most often required as part of the process of getting things started. A fiduciary bond protects the estate should there be any deviation from the fiduciary standard. The standard applies to all actions taken to administer the estate by the executor/administrator who must ensure that the estate is managed and distributed in accordance with law. While an attorney is not required to probate an estate, involving a lawyer minimizes the likelihood of inadvertent deviation from the fiduciary standard.

The process of probating an estate is simple and complicated at the same time. It is simple in the sense that the personnel at the Probate court have done an excellent job in providing materials and instructions on the court’s website. It is complicated because to probate an estate one has to know, understand and be able to apply the law in preparing forms. For example, what happens when a surviving child is not mentioned in a will? Can he/she inherit anyway? What about a surviving spouse that is not mentioned? Or an unmarried life partner? The administrator/executor must be able to answer questions such as these to fill out one of the forms required to open an estate and in doing so is required to meet the fiduciary standard. Having a lawyer involved makes the process of accurately completing the forms much easier

All assets need to be identified and an inventory be provided to the Probate Court within a specific time frame of getting the Certificate of Appointment. In preparing this inventory for the court, one has to distinguish between probate assets and non-probate assets. This is often not as simple as one might think. For example, depending on the deed, a home may be a probate asset or a non-probate asset. Depending on the beneficiary, a life insurance policy may be a probate on non-probate asset. Bank accounts and retirement plans also may or may not be probate assets. Even the family cars may or may not be includable as probate assets.  Again, having the assistance of an attorney during this phase can make the process easier and much less stressful.

What else happens during the process of probating an estate is dependent on a number of different things.  If there are no other outstanding issues, a Waiver of Administration may be appropriate as soon as six months after the Certificate of Appointment is issued. If 12 months have passed after the Certificate of Appointment was issued, an executor/administrator’s accounting will need to be submitted. There may be other rules that need to be followed in other scenarios that have not been discussed in this note. All and all the process can be quite overwhelming, particularly given the fiduciary obligation discussed in an earlier column. Using a law office to assist in the process will relieve that pressure. At Parnell, Michels and McKay we have many years of experience in handling probate matters and will knowingly, intelligently and with empathy guide you through the process. Contact us if you need assistance. 

Guardianship of Minor and the Opioid Crisis

            The Opioid Crisis has gripped our nation for several years. However, news agencies and governmental bodies have only begun taking steps in recent years to help stem the tide. This past summer, New Hampshire made waves for becoming the first state in the country to provide grandparents preferential treatment to obtain a guardianship over their minor grandchildren when the parents suffer from substance abuse. The law came into effect on January 1, 2018.

The framework for Guardianship Law in New Hampshire can be found in RSA 463. New Hampshire Law provides for two forms guardianships: Person or Estate. Guardianship of another’s person means the Guardian is responsible for decisions ensuring the safety and well-being of the child as aligned in accordance the child’s best interest. Guardianship of another’s estate means the Guardian is responsible for ensuring the safekeeping and maintenance of the child’s property and finances. These forms of guardianships apply to adults as well.

Guardianships of any variety for any class could be quite difficult to secure when contested. In the fact for minors, in most circumstances, the Court still applies a “clear and convincing” evidentiary standard in order for the Court to find that a guardianship over the person of a minor is necessary. See RSA 463:8, III(b). Clear and convincing is considered the “medium” evidentiary standard. A Petitioner under this standard would be required to prove that it is substantially more likely than not that a guardianship will be in the child’s best interest. Therefore, it was once the case that unless parents willingly entered into a guardianship, guardianships over the person of a minor were not easily attained against the wishes of the parent, no matter the scenario.

However, a new section of RSA 463:8, III(b) reads as follows: “If guardianship is sought by the minor’s grandparent as the result of the parent’s substance abuse or dependence, the burden of proof shall be on the petitioner to establish by a preponderance of the evidence that a guardianship of the person is in the best interests of the minor.” This change in the law significant lowers the standard for grandparents seeking to deliver their grandchild from dangerous environments where the parents decision-making capacity is extraordinarily flawed. The “preponderance of the evidence” is the least rigorous evidentiary standard, if put into a percentage, the standard would mean that more than 50% of the evidence points to a particular conclusion. This is the same standard used in any civil trial.

While there are two sides to every story, the chances of abuse on a law like this are minimal. The parties are still required to appear in front of judges to determine whether a guardianship is put in place. Further, the law restricts the use of the lessened evidentiary standard to an intimate family member that likely has particular knowledge about raising the child and/or a special relationship with that child already. Further, the law maintains the extra evidentiary level of protection in other guardianship cases. It is unfortunate that a law like this needs to exist in the practical reality we now live in, but with laws like this the State of New Hampshire is trying to take steps on a pressing issue while insuring the family unit remains together as best as possible in trying times.    

Understandably, guardianships can be an extremely emotional time for any potential Petitioner. While petitions are now filed online through the Court’s E-Filing system, it is worthwhile to contact an attorney before filing to ensure you receive the best legal and practical advice. The attorneys at Parnell, Michels & McKay are well-able to provide such a two-pronged advice to guide you through trying times. As guardianships meet at the intersection of Probate and Family law, if you are interested in learning more about guardianships or have other questions in the areas of Family or Probate law, please contact us to learn more.  

2018 Third Annual Pro Bono Hockey Game a Success

                Sunday January 14^th was the third annual Pro Bono Hockey game between Team Justice and Team Liberty. The game was played at St. Anselm College in Goffstown, NH, which provided a great venue for the event. I was a close battle all game long. Ultimately, Team Liberty prevailed in a 6-5 overtime thriller. They were led by captain Hon. Paul Lawrence, and goalie Joe DiBrigida from Sheehan Phinney. Judge Lawrence netted a goal and two assists to pace Team Liberty, and Neil Nicholson and Justin Veiga also factored in significantly on the game. Team Justice was led by Matthew Burrows who finished with three goals to lead Team Justice. The game was a tremendous success with positive feedback from all participants and our sponsors.

                                                   

                The game saw over $4,000 in funds raised for pro bono, and a big thanks goes out to all the players and fans who attended the game. Big thanks goes out to the sponsors: Upton Hatfield, McCandless and Nicholson, Connelly Reporting, Gallagher Callahan and Gartrell and of course, Parnell, Michels & McKay. Divine Millimet and Orr and Reno were also banner sponsors of this wonderful event.

                We at Parnell, Michels and McKay are proud supporters of the New Hampshire Pro Bono Referral Program, and of helping our community and those in need. We look forward to continuing to sponsor such a great event well into the future. 

SHOULD YOUR CORPORATION BE A BENEFIT CORPORATION (AND WHAT IS A BENEFIT CORPORATION)?

I am sure many of us have heard the reports in print and online media that Millennials are becoming the largest consumer group and that they often choose to spend their money at companies which practice good corporate citizenship.  This includes supporting corporations which put their money where their mouth is by donating services, products or a percent of their profits to underserved communities or other charitable causes.  Think about the company that donates shoes to the underprivileged or a family in a third world country if you buy a pair of shoes from them.  Or, the company that donates a percentage of their profits to a particular charity.  How are these companies set up in their state of incorporation?

Thirty-three states, at last count, have statutes that apply to these so-called, benefit corporations.  New Hampshire has a benefit corporation statute at NH RSA 293-C which took effect on January 1, 2015.  Directors of a benefit corporation are permitted, and may be required, to consider the social benefits of their decisions in addition to profit motives.  Some statutes have been criticized as being too vague and not giving enough guidance to the directors.  New Hampshire requires the corporation to have a material positive effect on society or the environment.  The NH law defines a specific public benefit to include providing low-income or underserved individuals or communities with beneficial products or services; protecting the environment; improving healthcare; or, promoting the arts and sciences.  The statute also has certain reporting requirements which must be met.

The allowance of benefit corporations in New Hampshire is an attractive development for community and environmentally minded business owners.  It enables them to practice their social values without sacrificing the ability to make a profit.  But it is advisable to contact an attorney to set up the corporation and provide advice on the operation of the business.

If you would like to start a benefit corporation or would like to convert your current corporation to a benefit corporation, please contact an attorney in our office.  We offer advice to all types of corporations, limited liability companies and other business entities designed to achieve each client’s goals and needs.

Considering Premarital Cohabitation in an Equitable Division of Property

In August of 2016, the New Hampshire Supreme Court issued a decision In the Matter of Munson and Beal which gives the Court the clear ability to consider the parties’ premarital cohabitation in the determination of an equitable division of marital property. 

Every discussion about the division of marital property begins with what is marital property.  Many clients come into our office with the belief that assets titled to that party individually or assets that party brought into the marriage are not marital assets.  This is wrong.  In New Hampshire, RSA 458:16-a defines marital property as all assets titled to either party individually or to the parties jointly. This means that all assets are marital assets, no matter how they are titled. The statute also requires the Court to divide the “marital property” equitably, but states there is a presumption that “equal” is “equitable”.  This presumption means that in most cases, the marital property will be divided equally. However, the Court is permitted to deviate from an equal division based on a number of factors or special circumstances. Those factors or special circumstances include the length of the marriage, whether property was owned by one party prior to marriage, the disparity in the parties’ earnings or abilities to acquire assets in the future, and any other factor the court deems relevant in equitably dividing the parties’ assets.

The Munson and Beal decision dealt specifically with the length of the marriage and the trial court’s application of that factor to the determination of an equitable division of marital assets.  In Munson and Beal, the parties were a same-sex couple. They had lived together for about 15 years before entering into a civil union in 2008. In January of 2011, their civil union converted to a marriage by operation of law. In March of 2012, Ms. Munson filed for divorce. At trial Ms. Munson argued that the court should consider the fact that their marriage was of short duration in the equitable division of assets. Ms. Beal argued that the court should consider their 21 year relationship in the equitable division of assets. The trial court issued a decree of divorce awarding Ms. Munson approximately 88% of the marital assets relying heavily on the date of the civil union being the start of the marriage. The trial court concluded that the marriage was a short-term marriage and as such, an equal division of assets was not appropriate. The court refused to consider the parties’ premarital cohabitation when it divided the marital assets.

Ms. Beal appealed the trial court’s decision to the New Hampshire Supreme Court.  The Supreme Court looked at RSA 458:16-a and the many prior cases concerning that statute. With regard to the length of the marriage, the Supreme Court noted prior decisions finding that a marriage of short duration may be considered differently than a long-term marriage, and that the duration of the marriage is only one of the factors for the court to consider when equitably dividing the assets.  The Supreme Court also noted that in prior cases, the Court had not found it necessary to decide whether the trial court may consider premarital cohabitation under RSA 458:16-a, II. Relying on the statute’s language permitting the trial court to consider “[a]ny other factor that [it] deems relevant”, the Supreme Court held that the trial court has the discretion to consider premarital contribution in divorce proceedings when determining whether to apply the presumption that an equal division of assets is an equitable division of assets. As the trial court apparently believed it had no discretion to consider the premarital cohabitation, the Supreme Court vacated that portion of the trial court’s decree of divorce.

Although this case involved a same-sex couple, the Supreme Court was clear to state that the holding in this case that the court may consider premarital cohabitation applies to all divorce proceedings.

As RSA 458:16-a gives the trial court the discretion to consider a number of factors in deciding how to equitably divide the parties’ assets, it is important to discuss these factors and the facts of your case with an experienced family law attorney.  The family law attorneys at Parnell, Michels & McKay have the experience necessary to help you decide whether it would be worthwhile to pursue these factors at trial.  

THE OTHER GUY DID NOT GET A TICKET. HOW CAN I RECOVER FOR MY INJURY?

It is a common and understandable misconception that someone injured in a car accident cannot successfully bring a claim unless the person they are considering going after was issued a traffic ticket as a result of the accident. While a ticket can help with the liability argument, it really is not necessary to proving a case. To understand why, it is necessary to understand the difference between what is necessary to prove a crime and what is necessary to prove a civil wrong. The key here is what we call the “Burden of Persuasion”.

Simply put, the burden of persuasion is the level of certainty the proponent must establish to the trier of fact that the proponent’s assertions are correct. In criminal cases, the burden of persuasion is beyond a reasonable doubt. Criminal cases include virtually all traffic offenses. In civil matters, which include establishing fault in auto accident cases, the burden of persuasion is a preponderance of the evidence, or better understood, the more likely than not standard. Judges often explain beyond a reasonable doubt in their jury instructions to consider that there is a reasonable doubt if based on all that has been heard the person making the decision would be uncomfortable with a criminal conviction. A preponderance of the evidence, on the other hand, is that based on all that has been heard the person making the decision believes it is “more likely than not” that what the Plaintiff is arguing is true. Reasonable doubt can exist and a person still found to be responsible civilly for an accident. This is because the standard for criminal conviction is so high.

To issue a ticket for a traffic violation, an officer must make an assessment based upon what he or she has observed at the time. Moreover, they must have some sense of being able to prove that a crime has been committed. If the officer is unable to get to that point, they are not likely to issue a ticket. However, that means only that an assessment has been made by the officer that the criminal standard cannot be met. Whether the civil standard can be met is simply not part of the officer’s analysis and has no bearing on the decision to issue a ticket. Sometimes, it has nothing to do with the burden of persuasion, and has more to do with an officer providing a “break” or a warning to someone they feel just made a mistake.

Whether the civil standard can be met is an analysis that needs to be made by individuals qualified by training and experience in automobile litigation. It should not be made by someone without that training and experience. Nor should someone without the training and experience trust that analysis to one that has an interest in the outcome or “a dog in the fight”. Such individuals include not only the person causing the accident, but also their representative, including their insurance representatives. Appropriate persons to make this analysis include experienced plaintiff attorneys, most of whom will conduct the analysis at no charge and make meaningful, fair and well thought out recommendations. At Parnell, Michels and McKay we take great pride in our analysis and in providing meaningful, fair and well thought out recommendations at no cost to injured parties who have questions about their ability to secure compensation for injuries.

If you or someone you know is injured by someone else, do not let the decision to seek fair compensation be determined by whether or not charges are filed. Hopefully this post sheds some light on why that should not be the case. Talk to a trained and experienced injury lawyer and be sure to understand your rights.