Used Car Sales in New Hampshire: How to Protect Yourself from Getting Ripped Off

                In New Hampshire we do not have specific “lemon laws” that other states have that protect purchasers of used cars. Often, we get cases in our office where a person buys a used car, pays for it, and then after they drive it home they discover all sorts of problems with it. When they contact the seller, they are told all sales are final, and no reimbursement will be given. This can be very frustrating, especially if you are of limited means and cannot afford a car that will need constant servicing.

                In order to prevent these issues, it is important to first remember a few key terms. Almost always a used car dealer will sell a vehicle “as is”. By selling a vehicle “as is”, the seller is stating that the car comes with no warranties. However, one thing many people do not understand is that this waiver of warranties only applies to the implied warranties known as “fitness for a particular purpose” (i.e. the car drives like it should), and “merchantability” (which is something that warranties that the goods are merchantable and of decent quality). By putting the terms “as is” in any contract, this waives those warranties and they no longer apply to the vehicle being bought. However, this does not exclude what are called “express warranties”. Express warranties can be verbal and/or oral. An express warranty is a specific representation of the vehicle’s quality. Examples of an express warranty would be, “this vehicle has 100,000 miles on it”, “this vehicle’s brakes are of good working quality”, “this vehicle’s engine is in pristine condition and needs no work”, and so on. Things that would not be an express warranty are what we call “mere puffery”. Examples of puffery would be “the vehicles rides nicely”, “you’re going to look great in this car”, “you’re going to love this car”, and so on. The thing to remember is that express warranties are specific representations on the vehicle’s quality. Express warranties cannot be waived by selling a car “as is” and without any implied warranties. Knowing the difference is always integral to any used car sale case.

                Another component is New Hampshire’s statutory scheme on inspections. RSA 358-F requires a seller to either certify that the vehicle would/did pass inspection, or the seller must certify that the car would not pass inspection. RSA 358-F also requires that a dealer provide a written statement to any buyer that the vehicle has either not been inspected and the written statement serves to put the buyer on notice that they have a right to an inspection if they so choose. The other option for the seller is to provide written notice that the vehicle would not pass inspection, along with an itemized list of the problems of the car that need fixing in order for it to pass inspection. This is surprisingly commonly violated by dealers. And, if that violation is proven, it is deemed a violation of New Hampshire’s consumer protection statute (RSA 358-A), which entitles the buyer to double and triple damages and recovery of attorney’s fees.

                At Parnell & McKay, we have dealt with many different nefarious used car dealers that have ripped off potential buyers. If you find yourself cheated, please contact us today and put our experience to use on your behalf. 

Personal Injury Series: How does potentially criminal conduct affect my injury case?

            Getting injured is unfortunate enough as it is, but sometimes someone is hit by a drunk driver, or someone speeding, or someone texting and driving and it can compound the injury. People involved in such accidents can suffer from increased anxiety, and become very fearful of driving after the accident. These folks not only suffer from their injuries, but also from the fact that another person was committing a crime when they were hurt. Ultimately, we get asked, how does this affect my case?

            The answer, like most in the legal field, is that it depends. Things like crossing a yellow line, speeding through a stop light or stop sign, or something as simple as failing to yield to oncoming traffic are all violations of the Rules of the Road in New Hampshire. These are ultimately criminal violations, but they are often not charged. Many clients become concerned that the person that hit them was “getting away with something”, and they want to know what can be done.

            If a case goes to trial, we here at Parnell & McKay always explore the rules and regulations in the State where the accident occurred to see if there is a statutory violation. If so, we plead the violation of the statute as a cause of action. If proven this helps establish “negligence per se”, which we have touched on previously in our series. This can make recovery a little easier because the insurer knows that they do not have very good arguments against liability.

            Sometimes, the conduct is more egregious. One such situation is any case involving a drunk driver. If the person pleads guilty to the driving while intoxicated (DWI), then we can use that plea in Court to help prove liability. More importantly though, when a drunk driver causes an accident their victims generally suffer from increased anxiety and fear when driving again. The thought is always in the back of their mind that any person on the road could be drunk. When we proceed forward with litigation on these cases, we always keep it in mind because people obviously do not like drunk drivers. This factors into our analysis on what a potential jury would do. This can increase potential recoveries, because juries can understand the increased anxiety and suffering of being hit by a drunken driver. A similar analysis can be done on driver’s texting while driving, which has become a major news story over the past ten years.

            It is very important to understand these factors as you decide who to best represent your interests. At Parnell & McKay, we have been practicing in injury law for a combined 30+ years between our injury attorneys. If you are hurt in an accident, contact us and put our years of experience and expertise to use. 

Slip and Falls: New Effective Recovery Strategies

            Slip and Falls are known as being one of the most difficult areas of personal injury cases to win for Plaintiffs. When a person slips on a spilled drink in a supermarket, the supermarket often blames the person who slipped as being the responsible party. They argue that the victim should have looked where they were going, and often trot out the ineffectual argument that others in the area didn't fall so it must have been the victim’s fault. These arguments can be tricky to deal with, but often it is easier to overcome these arguments than others.

            The most difficult thing to overcome in slip and fall cases is often proving the Defendant knew or should have known the spills or hazards were present and were a danger. Supermarkets and other major stores often argue that they didn't have notice of the spill and that there was no way they could find out that such a danger existed. As Plaintiff’s attorneys, we always look for the video tape of the area where the fall occurred, but sometimes no video tape exists or no video camera was recording that area. Knowing these issues, we at Parnell & McKay are always looking around the country for cutting edge approaches based on new scientific studies and research. One such study from a firm in California used cutting edge science to test how dangerous a supermarket floor can be even without liquid on it. The study focused on comparisons of slippery objects, and how much more dangerous they get when covered with a  liquid or other slippery item. One such focus was on supermarket floors, which use a bright tile that helps make their products “pop” from the aisles. The study demonstrated that once these floors get wet with water, or any spilled liquid product, they become extremely dangerous for anyone walking over them. The slippery quotient multiplied exponentially, and the studies demonstrated that once a supermarket floor gets wet like this they are effectively ticking time bombs for prospective customers. The study also found that supermarkets often consider buying a more tacky, or rough floor surface that significantly reduces how slippery and dangerous their floors can get. However, these floors are often not reflective of light, are generally darker, and do not look as shiny and bright as the more common tiles preferred by supermarkets.

            These supermarkets, when faced with the option of installing safer floors, decide not to and instead install the more aesthetically pleasing tiles that become extremely dangerous when wet. This helps demonstrate that not only did the supermarket know the floors they installed would be slippery, but that they deliberately decided against purchasing a safer floor because it didn't look as pretty.

            Science is constantly evolving, and staying on top of these various studies is important to maintain the most effective representation we can provide. If you are injured in a slip and fall accident, contact the Law Offices of Parnell & McKay and put our years of experience and diligent research to use. 

Worker’s Compensation: Differences in Lump Sum Settlements in Massachusetts and New Hampshire

            At Parnell & McKay, we handle both New Hampshire and Massachusetts worker’s compensation cases. However, we often are asked about the differences between the two as it relates to settlements. In worker’s compensation cases, these are called “lump sum settlements”. A lump sum settlement generally uses the weekly wage benefit amount as a basis for coming up with a settlement figure. For example, in a situation where an individual is getting $400.00 per week in wage benefits, and is permanently disabled, there are a number of factors that come into play. Generally, it’s the injured worker’s life expectancy, the wage benefit amount, and whether the client prefers settlement to receiving regular weekly benefits. If a person is permanently disabled and cannot work any form of employment, the person is very likely entitled to wage benefits for the rest of their life. However, most people tire quickly of dealing with worker’s compensation insurance and prefer to avoid the continued hassle of denials, delayed benefits checks, and fights with the insurance companies.

            So, what is factored into the settlements beyond the above? In New Hampshire, that answer is permanent loss of use or function of a part of their body, and the wage benefits if a permanent disability exists. If a person loses function, both Massachusetts and New Hampshire recognize that the injured worker should be compensated for this loss. The determination of this amount is very complicated, and I strongly encourage anyone facing a permanent disability to consult with a worker’s compensation attorney prior to agreeing with the insurance company on the permanent impairment. In Massachusetts, however, lump sums can also include scarring and disfigurement, and future medical bills can be lump summed as well. New Hampshire does not allow future medical bills related to the work injury to be lump summed, nor does New Hampshire account specifically for scarring and disfigurement. It is always dangerous to lump sum future medical bills without knowing what you are agreeing to, so it is very important to consult an attorney prior to agreeing to any settlement.

            There are other minor differences in worker’s compensation law between New Hampshire and Massachusetts, but when it comes to lump sum settlements it is important to know what is being resolved. If an injured worker fails to get the proper legal advice, they can put themselves in a dangerous situation where they could resolve their case for too small an amount and not properly include things like permanent injuries in both Massachusetts and NH, and scarring and future medical bills in Massachusetts.

            At Parnell & McKay, we have experienced worker’s compensation attorneys who can give you the advice you need to maximize your case’s settlement and make sure your rights are protected. Please contact us today if you were injured at work and need help navigating the worker’s compensation arena. 

NEW HAMPSHIRE’S NEW CHILD SUPPORT GUIDELINES

            New Hampshire made substantial changes to the way we calculate child support in the Granite State. Generally, the way child support is calculated is to take the person owing child support’s net income and then take a percentage of that net income as child support. Traditionally, this was 25% for one child, 33% for two children, and 40% for 3 or more. With the new changes, these figures can change fairly dramatically.

            Here is the link to the new child support guidelines tables. As you can see, gone are the round numbers we used previously, and instead we have more defined figures based on each parties’ income. The more you make, the less percentage is taken out of your income. The problem that was being generated was high income wage earners were getting stuck with significant child support amounts. For instance, under the new rules a wage earner making $14,000 or more will pay 19% for one child, 26% for two children, 31% for three children, and 33.5% for four or more children. For a person who makes approximately $5,300.00, the figures will be 23% for one child, 31.5% for two children, 38% for three children, and 40.5% for four or more children. This helps better calculate child support amounts that are more commensurate with the wages one earns.

            The new guidelines also call for specific amounts for three children, and now have a four or more children option. Three children are generally much more common than once anticipated, so having a specific calculation for three children will help keep the child support figures more accurate and in line with what each wage earner makes.

            These child support calculation changes went into effect on July 1^st, 2013 and are the law of New Hampshire. If you need assistance with any modification of child support, either based on the three year modification as a matter of right, or a substantial change in circumstances, contact the experienced family attorneys of Parnell & McKay. 

The Supreme Court Strikes Down Portion of Defense of Marriage Act (DOMA)

            In the now famous case, titled United States v. Windsor, the U.S. Supreme Court examined the 1996 Defense of Marriage Act to decide whether a portion of the act was unconstitutional. Specifically, the U.S. Supreme Court was deciding whether Section 3 of the act, which functionally denied federal benefits for same sex couples, was constitutional.  Ms. Windsor was married to her partner, and when her partner died, she was denied the exemption for spouses under federal law for estate inheritance. She was forced to pay over $300,000.00 in taxes to the federal government under DOMA, and she filed a lawsuit to contest this provision. Over the years, the case wound its way through our Appeals circuits and found its way in front of the Supreme Court.

            The Court found that Section 3 of the act, which denied federal benefits to same sex couples, violated the Equal Protection Clause of the constitution. Justice Kennedy wrote the opinion, and he stated, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” Under the new ruling, same sex couples can apply for federal spousal benefits, tax exemptions and tax credits as any opposite sex couple would under existing law.  The Court recognized that there was no rational basis for the law under their analysis, and struck Section 3 of DOMA down.

            While the case is a seminal moment for the same sex marriage movement, it also did not strike down DOMA entirely. There are remaining questions about whether a State that does not recognize gay marriage is required to give full faith and credit to a marriage from a state that allows same sex marriage. The Supreme Court did not answer this question, as it was not presented to them in this case. Future cases are bound to find their way to the U.S. Supreme Court that challenges this provision of DOMA, but for now the same sex marriage movement has scored an important victory for their cause.  

            At Parnell & McKay we are happy to take on any family law case for whoever may need it. If you find yourself in need of Family Law assistance, contact the Law Offices of Parnell & McKay to put our over 30 years of experience to use. 

What is Negligence Per Se?

            We previously addressed the term “negligence” and how that term is used in civil law, and, more specifically, in personal injury cases. However, at Parnell & McKay, we often use a theory called “negligence per se” to increase our chances of success in an injury lawsuit. Negligence per se is the legal doctrine where an act is considered automatically negligent because the person violated a statute or regulation.

            Typically, this can be seen in a traditional auto accident case. For example, let’s say Mary is driving her car and came to a four-way intersection with traffic lights on all four sides. Mary’s light is red, so she comes to a complete stop. Mary’s light turns green and she starts to proceed through the intersection. John is coming from the right of Mary, and decides he is going to run the red light because he is late for work. The light turns red, but John doesn't stop and proceeds into the intersection. Unfortunately for Mary, this causes John’s vehicle to strike Mary’s causing an accident and Mary is injured.

            In the first instance, it is clear John is negligent, as we discussed previously in this blog post. However, in order to tip the theory of liability more significantly in favor of Mary, it is important to add a negligence per se count to the lawsuit that demonstrates the violation of the statute John committed. In this instance, John has violated RSA 265:9 and 265:10, which governs obedience to traffic control devices. RSA 269:10 details what a person must do when faced with a steady red light, which is fairly obvious: John must come to a complete stop. Because John did not come to a complete stop, John has violated the statute. Now, sometimes a police officer may not give John a ticket for running the red light. However, that does not impact the ability to raise this theory of liability with the Court.

            In civil cases to establish negligence per se, a person must establish that the Defendant (John in this instance) violated the statute, that the act caused the harm the statute was designed to prevent, and that the Plaintiff (Mary) was in the class of persons designed to protect from that harm. It is clear John ran the red light. It is also clear that the reason the statute exists is to prevent people from running red lights and causing an accident. Finally, it is also clear that the Plaintiff was a member of the protected class in that she was a lawfully licensed driver on the roads who must be protected from other people running red lights. Once those prerequisites are established, the Plaintiff has proved that the Defendant was negligent per se by violating the statute. This has a significant impact on settlement negotiations, and creates significant leverage for a Plaintiff’s case.

            If you were injured in an accident and need assistance, contact the Law Offices of Parnell & McKay to put our over 30 years of experience to use.