Personal Injury Series: Health Insurance Liens

                In almost all injury cases, when the plaintiff gets injured they seek healthcare almost immediately. Most times the person’s health insurance company pays the bills generated by an accident in the first instance. Sometimes, this is a private company like Blue Cross Blue Shield, and other times it is government provided insurance like Medicare or Medicaid. In each scenario, both types of insurance will have a “lien” or right of reimbursement from the settlement an injured party can get from a third party insurance policy.

                Most commonly, it is a private health insurer like BCBS that pays the bills. As part of all health insurance contracts, the health insurer reserves a “subrogation” right through the contract. This allows the health insurer to get paid back through a settlement or judgment any medical bills that they paid that are being accounted for in the settlement. The theory is that a person should not be able to be paid twice for the medical service, which would lead to a sort of “double recovery”. This is built into the health insurance contract and is only triggered by the collection of actual settlement or judgment dollars. If you review your own health insurance contract, you will find this provision likely under the title “subrogation”.

                In other situations, the health insurer is a governmental agency like Medicare, Medicaid or Tricare (military insurance). These insurers have a statutory right of reimbursement. This means that, like the private insurers above, they have a right to be reimbursed from any settlement or judgment the insured receives for bills they have paid. Since these are statutory rights of reimbursement, it becomes imperative to understand these liens and coordinate the benefits in order to avoid having the plaintiff be sued in the future. This is because these liens are “automatic” and many people do not understand that such liens exist. It is very important to identify all types of liens in each case, and coordinate paying them back prior to reaching a settlement.

                Negotiating these liens can often yield to lower reimbursement amounts, which can only benefit our clients. Having an experienced personal injury litigation attorney becomes very important for any potential plaintiff. If you were injured and need help getting back to normal, contact the experienced personal injury attorneys at Parnell and McKay  and put our 40 years of combined experience to use. 

Collaborative Law in the Civil Arena: A New Age of Conflict Resolution

                Parnell & McKay has long championed the role of collaborative law in the divorce setting, and we offer one of the best and most experienced collaborative law divorce attorneys in the State of New Hampshire in Catherine McKay. However, the gains made in collaborative law in the family arena are being noticed by other attorneys who practice in the civil areas. Employment disputes, business disputes, probate disputes, and other areas of civil practice seem like potential great areas for collaborative law to continue to develop.

                Parnell & McKay supports the Collaborative Law Alliance of New Hampshire (CLANH), and through that great organization we have been introduced to potential new areas of law where collaborative practice can be utilized. In fact, the New Hampshire Bar Association just did a spotlight article on collaborative law being developed in the civil practice. I encourage anyone that is interested in learning about collaborative law to click here and read about CLANH’s role in bringing the collaborative practice to civil law in New Hampshire.

                At Parnell & McKay we have always focused on cost efficient resolutions for our clients. While not all cases will fit with collaborative law, it is important to understand that many do fit perfectly within its boundaries. Collaborative Law can prevent the angst and stress of litigation, help avoid the costs of litigation, and allows the parties to craft their own settlement agreements based on their individual needs. This takes the decisions out of the Court’s hands, and puts it back in the parties to resolve their own conflicts.

                If you are interested in learning more about collaborative law, please check out the CLANH website here. If you need assistance with a potential collaborative law case, please contact our office and put our resources and experience in collaborative law to use. 

Bode Miller Dispute Raises Serious Questions About Rights of Pregnant Women

            Bode Miller is well known as an Olympic skier, but like any normal person, he sought companionship. He found a woman online in California. Sara McKenna was the woman he met, and they dated for a brief while. During this time period, Sara became pregnant, but unfortunately the relationship with Bode failed. While she was pregnant, Sara, a veteran, was accepted to Columbia University in New York. There was a problem, however, as Bode wanted Sara to stay in California where he lived since she was pregnant. She left for New York anyways, and Bode filed an action in the New York courts alleging that Sara had absconded with the unborn child to seek a sympathetic court.

            The lower New York agreed, which allowed a California court to grant Bode custody over the parties’ unborn child. This allowed a California court to exercise jurisdiction over the case and grant custody to Bode. Sara appealed the order, and a five panel appeals court agreed, finding that the putative father (Bode) cannot restrict the liberty of a pregnant woman in such a manner. The case has been given back to the New York Family Court for further action, but the California Court has yet to cede jurisdiction to New York. While this case will continue to wind their way through both Court systems, the case raises significant questions about women’s liberty rights when they are pregnant.

           

            There are a number of cases that attempt to rule when a fetus becomes “viable” under the law, and such cases are most commonly in the abortion field and we will not go into them in this post. However, the viability of the fetus has taken an unexpected turn as highlighted by the Bode Miller case, in that Mr. Miller was able to get a Court to rule that the mother of his unborn child could not leave California for New York. This type of law can have a chilling effect on the ability of a pregnant woman to pursue her own liberty interests separate from the father’s. The Appeals Court’s decision to reverse the original ruling recognizes this potential effect, and eliminated it before it became law. The concern is that if such a ruling was upheld, it would effectively restrict the mother from leaving the father when she is pregnant. This has upset many women’s rights activists and they have provided assistance to Sara as she fights for her rights in New York. It is our hope that both parties can come to a mutual resolution for the sake of their child, but from a legal perspective this case could have a lot of potential ramifications for pregnant mothers.

            As this case continues to wind its way through both Courts, many family practitioners like Parnell & McKay will be keeping a keen eye on how the Court’s seek to rule on the Miller case. If you need help in the family law field, please contact Parnell & McKay today to put our experience and expertise to use.

            

Non-Traditional Injury Cases: the Non-Auto Accident Personal Injuries

                Most injury cases that are handled by personal injury lawyers are auto accident cases. Auto accidents are by far the most common, as driving a car comes with significant inherent risks. However, there are many other types of cases like slip and falls, trip and falls, dog bites, and other incidents that lead to injuries.

                While we have addressed slip and falls and our strategy in approaching them, the trip and fall case is often confused with a slip and fall. A trip and fall generally comes as a result of some unknown invisible object that causes a person to trip and fall, or dangerously constructed stair way or walkway. In order to property handle such cases, it is very important to first focus on building codes. This involves a very specific way of discovering the date the building where the incident was built, the date any modifications were approved, and the building codes in effect at the time of the fall. Other factors to look at include site views, pictures of the scene of the fall, and checking out whether past injuries have occurred there.

                Another type of premises liability case we handle is mold exposure injuries. It is rare that mold exposure gets so bad as to cause physical injury, but it does happen and the injuries can be severe. The most important things to focus on in mold exposure cases is the source of the exposure, and documenting that any injuries or illness from the mold are accounted for in the victim’s medical records. These are notoriously difficult cases, so professional representation is always recommended.

                At Parnell & McKay, we handle all forms of personal injury cases. Often, we are required to use our extensive combined experience to pursue these claims in an efficient and knowledgeable manner. It is important that if you find yourself experienced counsel to handle your injury cases, so contact us today and put our advanced knowledge to use. 

LANDLORD AND TENANT LAW: THINGS LANDLORDS NEED TO KNOW ABOUT EVICTIONS

            The most common problem we run into for our clients who are landlords is where a landlord is confused, or not aware of, the strict eviction process required in the State of New Hampshire. They end up attempting to evict a tenant in the wrong way, which causes them to open themselves up to liability to the tenant, their own attorney’s fees, the tenant’s attorney’s fees, and costs that they did not anticipate. The question is always asked, in the future, how do I avoid this problem?

            First, it is important to understand the nature of a tenancy. There are three general forms of tenancies that we should start with. The first is when a tenant has a written lease with a landlord for a term of time. Often, this is for a year. The second is a “month to month” tenant who generally does not have a written lease, but pays their rent at the same time each month and contacts the landlord if problems need to be addressed. The third is called a “holdover tenant”. This is the tenant who stays beyond the time agreed to with the landlord, and effectively overstays their welcome. This holdover tenant is often the one that needs to be evicted.

            Second, the most important step is to terminate the tenancy. This is often forgotten by landlords, or confused with evicting tenants. In order to terminate the tenancy, you need to provide written notice that the tenancy has been terminated. This is generally done by email or letter, but either way it is important to keep a dated copy. Termination of a tenancy with a lease must be done thirty (30) days prior to the expiration of a lease. For example, a lease that runs from January 1^st, 2012, through January 1^st, 2013, requires a written notice of the intent to not renew the lease (and thereby terminate the tenancy) no later than November 30^th, 2012. In a month to month arrangement, the termination is fairly similar, but a landlord must know the date rent is received. At least thirty (30) days’ notice is again required. So, for example, a month to month tenant that pays on the 15^th of every month requires written notice of the termination of tenancy no later than the 14^th of the month before the landlord wants the tenant to leave. In this example, if a landlord wants someone out by April 15^th, they need to provide the written notice of termination no later than March 14^th of the month prior. A holdover tenant usually has the tenancy already terminated, so often additional written notice is not required. Make sure to consult with an attorney prior to assuming how much time you have to give to provide proper notice to a tenant to terminate their tenancy.

            Once the tenancy is terminated, it gives the landlord the right to evict the tenant. For a renter, this involves posting an eviction notice on the door of the tenant’s home that provides seven (7) days for the tenant to leave. If the tenant does not leave after the seven days, the landlord then has the right to file a Landlord and Tenant Writ with the Court. The landlord and tenant writ requests an order from the Court granting the landlord physical possession of the property. Once granted, a copy of this is provided to the local sheriff’s office, and then on the first Tuesday of every month they enforce these writs and physically eject the tenant from the premises. Before you post an eviction notice, or file an action in court, it is best to consult with an attorney to assure all necessary steps have been complied with.

            Landlord Tenant law is wrought with minefields that, if a landlord isn’t careful, can create substantial liability to the tenant. It is strongly encouraged that if you need help with an eviction, or even just a better understanding of the process, that you meet with an experienced lawyer at Parnell & McKay that can help guide you through the process. If you find yourself in need of assistance, contact our office and put our experience to use.  

COLLABORATIVE LAW: AVOIDING THE PITFALLS OF LITIGATION

                In family law, litigation can have very negative effects on the familial relationships. In divorce, it causes parties to become entrenched in their positions, and they end up spending thousands upon thousands of dollars fighting in Court. Often, we have family law clients in divorce cases that don’t want to ratchet up the emotions by pursuing litigation, and ask about alternative options that do not involve going to Court.

                The best option available is Collaborative Divorce. It is a process that removes a lot of the stress, time and money spent on litigation. Instead, parties go through a series of meetings until the process is concluded with a final agreement. The first step is agreeing to do collaborative law in the first place. At Parnell & McKay, we often recommend collaborative divorce to clients as a non-litigious option. In order to do a divorce collaboratively, there are specific steps that must be taken.

                First, the parties must agree to a collaborative process. Each party must have a collaborative lawyer to represent them. Once each party has a collaborative lawyer, the parties and their attorney’s meet to go over the collaborative process and sign an agreement. The most important part of this agreement to understand is that if the collaborative process fails, then neither party’s attorney can represent them in any future litigation around that family case. For example, if a person hires Cathy McKay as a collaborative attorney, and then decides they would rather do litigation, Cathy McKay cannot represent that person in the litigation process. The person must get a new lawyer at a different law firm. This helps parties remain invested in the process and coming to an agreement.

                There are also additional benefits to the process besides just avoiding litigation. A mental health professional can be involved to help people through the significant emotional issues a divorce can bring. A financial specialist can also be involved to help parties understand the financial decisions that must be made in a divorce. Both professionals help facilitate the collaborative process by allowing both parties equal access to these individuals to get questions answered, and their needs addressed.

                The parties then hold as many meetings as necessary to come to an agreement. This can sometimes happen quickly, and other times in more complex cases it can take additional meetings. Yet, throughout the process, it is designed to be non-adversarial, and to avoid the stress and emotion involved with litigation.

                Collaborative law is a wonderful development, and Catherine McKay is at the forefront of its establishment and continued popularity in New Hampshire. If you find yourself looking at litigation and would prefer to avoid it by participating in the collaborative process, contact our office today to see how we can help you move forward as amicably as possible.  To read more about collaborative law, click here. 

LANDLORD/TENANT LAW IN NH – THINGS TO KNOW AS A TENANT

            Our firm has taken on a wide variety of various landlord/tenant cases, from statutory violations, to personal injuries from premises liability cases, to preventing a person from unlawfully being ejected from their home, among others. We often find that a lot of tenants are completely unaware of many of the basic rules that apply to them as renters of real estate.

            One of the biggest is the law as it relates to security deposits. Often, a landlord decides to keep a security deposit unjustifiably, fails to follow the statutory procedure, and ends up unlawfully taking the security deposit of a tenant. RSA 540-A:7 governs the return of security deposit to tenants. Generally, the security deposit must be returned within thirty (30) days from the termination of the tenancy. However, some landlords just decide to keep it and “dare” the tenants to do something about it. This is most unfortunate, but as a tenant this creates a very specific cause of action against the landlord.

            First, if the landlord does not return the security deposit, they must comply with RSA 540-A:7. Specifically, they must “provide the tenant with a written, itemized list of any damages for which the landlord claims the tenant is liable, which shall indicate with particularity the nature of any repair necessary to correct any damage and satisfactory evidence that repair necessary to correct these damages has been or will be completed. Satisfactory evidence may include, but not be limited to, receipts for purchased repair materials and labor estimates, bills or invoices indicating the actual or estimated cost thereof.” This essentially boils down to forcing the landlord to prove, specifically, why they are entitled to keep the security deposit. Often times, the landlord fails to do this and it creates a cause of action for the tenant against the landlord.

            This failure to comply with RSA 540-A can entitle the tenant to costs, attorney’s fees, and up to twice the sum of the security deposit in Court. Thus, if your security deposit was $1,000, you would be entitled to obtain $2,000 from the Court for the 540-A violations. It is also likely that a landlord may have violated other provisions of RSA 540-A if he violated the security deposit rules, which may entitle a tenant to additional damages and fees and costs.

            If you find yourself in a situation as a tenant where you are faced with an overreaching landlord, please contact us today. We have handled many cases for both tenants and landlords, and have over 20 years combined experience in landlord tenant law.