Office Christmas Party - Legal edition

            With just a few days before one of the biggest holidays of the year, many businesses choose to reward their employees by throwing holiday parties. These festive celebrations can help reward the employees for the company’s good year while inspiring thoughts of togetherness and good cheer. However, how often do we hear about the raucousness of some holiday parties? It seems like every year, there is some national news story about allegations of sexual assault or other wildly inappropriate and dangerous behavior by superiors to subordinates or co-workers to other co-workers (e.g. this story about a supervisor who installed a stripper pole for his employees). Often, these bouts of horrendous behavior are spurred on by alcohol. Many pop culture staples have taken on the “office party” tableau, including The Office and Mad Men. In fact, this year, Dreamworks and Paramount released a movie playfully mocking these workplace gatherings in the appropriately titled, “Office Christmas Party”. While these media mainstays may have us joyfully laughing at the actions of fictitious characters, these events cannot be treated as a laughing matter for employers.

            Employers ought to be concerned with the actions of employees who may have imbibed a tad too much at their holiday gatherings. If that employee gets into an accident on the way home from such a gathering, the employer may have significantly more to worry about than terminating an employee with poor decision making skills. While Courts in the “Live Free or Die” State held that “it is the drinking, not the providing, of alcohol that causes the harm,” duties for employers will still develop if they serve as their employees’ social host. Hickingbotham v. Burke, 140 N.H. 28, 34 (1995).

In New Hampshire, the law focuses on who provides the alcohol and where it is provided. While there is more than one theory of recovery, a quick primer on the law of social hosts and respondeat superior may help guide employers through the holiday season. Consider the following scenario: Smaller businesses may consider buying and providing alcohol to their employees at an office gathering at work to save some money. For peace of mind, these smaller businesses are better served by hiring a bartender for the event and/or renting a separate location. While larger business may not have the financial concerns that smaller businesses have the advice applies to them in the same measure.

            Without the separation of location and alcohol provider, business maybe looked at as a social host, or worse yet, as holding the party within the confines of employees’ scope of work. Both theories are fact based inquiries that will target the exact who, what, where, when, how, and why of the party and the alcohol served. If the employer is considered a social host, an injured third party would need to show that the social host placed their guests in such a position that the host “consciously disregarded a substantial and unjustified risk of a high degree of danger” through the (over) provision of alcohol to their guests. Id. at 33. The theory of respondeat superior would require the injured party to prove that the employer imputed upon itself a duty to third parties by holding an office party that was within the scope of the employee’s job, not as an employee individually. See Estate of Thompson v. McClure, 2001 N.H. Super. LEXIS 21, *4–5 (Super. Ct. 2001) (quoting Trahan-Laroche v. Lockheed Sanders, 139 N.H. 483, 485 (1995)); see also Everitt v. Gen. Elec. Co., 159 N.H. 232, 238 (2009) (leaving the door open for recovery under the theory similar to respondeat superior but for unrelated parties). Thus, by having off-campus parties, with separate bartenders, on time or days that are not during work hours, employers separate themselves from the actions of their employees. Employers do well to remember that while third-party liability is difficult to prove, it is not impossible. Thus, it is best to operate under the motto of, “spend a nickel to save a dime”.  

            Christmas, and all the holidays celebrated this season, should be fun events that leave you with happy memories for a lifetime. Unfortunately, these times do not always pan out the way you hope. If you have been injured by slipping on a poorly shoveled walkway, you have had a car accident during icy conditions, the holiday money crunch has left you thinking about bankruptcy, or you are simply considering about divorce, the attorneys at Parnell, Michels & McKay can help. We seek to counsel people through life’s difficult moments with personal empathy and countless years of legal experience. If you are interested in learning more about some of the topics mentioned in this post, or you have a pressing legal concern, please contact us to learn more. Let us help you get back to having a happy holiday season.   

New Change Helps Make Bankruptcy More Accessible

            Soon the holiday season will be upon us. To some, this time of year signals warmth, family, and good cheer. To others, the holidays are simply another source of stress. There are many pressures in this modern age that pull our focus in several directions. Family finances are often something that get pushed to the back of our minds, leaving many living beyond their means. As such, financial debt is a keystone burden that many New Hampshire families face. After years of neglect, mismanagement, pride, or the unexpected, families often consider the possibility of filing for bankruptcy. Filing for bankruptcy need not be a daunting or embarrassing process. Rather, many are so thankful for the relief a bankruptcy filing can provide after months of phone calls and dealing with creditors.

There are several different kinds of bankruptcy filings to help those in distress. The different kinds of filings are divided into the frequently-noted “Chapters”. For an individual natural person(s), Chapters 7 and 13 are of significance. Today’s blog post considers a slight, but significant change in the process of filing for one chapter or the other. For the Chapter a debtor chooses is not as simple as picking one form or another. In fact, there are many questions and considerations that a debtor ought to consider with an attorney before filing. The attorneys at Parnell, Michels & McKay are equipped with the prerequisite knowledge and years of experience needed to address an individual’s particular financial situation. This blog post is intended to note a small, but important alteration in the Bankruptcy Rules, not provide legal advice.

 In general, a Chapter 7 is a pure liquidation bankruptcy of dischargeable debt, and a Chapter 13 is a reorganization bankruptcy design to repay some of the debtor’s debt. In 2005, the United States Congress substantially changed its bankruptcy laws to add what is now called the “Means Test”. The Means Test was implemented to prevent Chapter 7 filing abuse by debtors that possessed the ability to repay at least some of their debts. In the most short and simplistic terms, the difference between a Chapter 7 and Chapter 13 is dependent on the debtor’s income. If a petitioner makes too much money, they may be prohibited from filing a Chapter 7 for failing the Means Test.

The Means Test is applied when a debtor possess a gross income that is higher than the median state income as determined by the federal government. Still, an application of the Means Test does not automatically induce a Chapter 13 bankruptcy. Rather, the Means Test considers a certain amount of national allowances (for items like food, clothing, etc.), taxes, the different kinds of debt a debtor possesses, and certain other exceptions, across the six (6) month period prior to filing. To be clear, this a vast over-simplification of how particular (and critical) the Means Test can be for certain debtors. However, the area of concern for this blog post is the recent changes in New Hampshire’s median state income.

As of November 1, 2016, the median income for the state of New Hampshire is $61,580. On October 31, 2016, the median income for New Hampshire was $56,289. This jump in income is unprecedented. As on January 1, 2008, the median income in New Hampshire was $50,086 and when the Means Test was implemented in 2005 the median income in New Hampshire was $50,411. As one can see, the median income is not guaranteed to improve by great leaps and bounds every year. While, the most recent jump in median income may signal more prosperous times for the Granite State, the change in median income also presents the possible opportunity for more debtors to apply for a Chapter 7 bankruptcy. Such a significant jump could prove crucial to those that fell just above the line after completing the Means Test, but would have likely struggled under a Chapter 13 reorganization repayment plan.  

            If you have considered filing for bankruptcy, but have been concerned with the prospect of doing so, now is the time to speak with the attorneys at Parnell, Michels & McKay. Our attorneys will take guide you through a process that can be as technically complicated as it is emotional. Please contact our office to learn more. Let us help you move toward some financial stability.   

Buyer Beware! (Of Ghosts?)

            The crunching of leaves, cold nights preceding comfortably cool days, October is the epitome of fall. Halloween is one of the most beloved holidays in this country, surely netting millions for the Nestlé Company and your local dentists. Halloween is known for emphasizing (and celebrating) the things that scare us. However, many places in this country attempt to make money all year-round in an attempt to monetize the bizarre, unknown, and frightening. What people often do not think about is the legal impact of such actions. In Stambovsky v. Ackley, 169 A.D.2d 254 (N.Y. App. Div. 1991), a New York Court was forced to decide that “as a matter of law, [a] house [was] haunted.” Yes, in a 1991 case riddled with ghostly-puns, a Court was actually required to write that sentence. In fact, the decision is now known as the “Ghostbusters” ruling. Please join us for a fearsome cautionary tale about disclosures in Property Law.

            After having his petition dismissed, a man appealed his rescission action. The buyer signed a purchase and sale contract on a home in Nyack, New York, a village just outside of New York City. What was the reason for his suit? The purchaser had come to find out the house was “haunted”. New York, like New Hampshire, is a caveat emptor state, meaning “let the buyer beware”. For her part, the seller held the house out as haunted. The seller sought after the publication of her family’s stories of ghostly apparitions haunting the home. The stories appeared in Reader’s Digest and the local press on at least two occasions. These publications gave the home a local reputation of being haunted. By 1989, the home was included on a walking tour of the city, which included mentioning the home’s ghostly inhabitants. However, the buyer was not from Nyack. Therefore, he was unaware of the building’s reputation of having ghostly dwellers. Upon learning of the home’s spectral residents, the seller wished to have a rescission of his contract.

At this point, a reader may ask how could the Court possibly be forced to waste its time with such nonsense. Is the Court really going to say that a buyer can back out of a contract because he is afraid of ghosts? The short answer is yes, but not for that reason. Despite the ridiculous context, there was a real legal question for the Court to answer: How far does caveat emptor apply? The Court answered the question by stating, baring certain nonapplicable exceptions, there is normally no duty to disclose information concerning the premises. However, there are limits to caveat emptor. The basis behind the legal theory is that it is the buyer’s sole responsibility to assess the fitness and value of the property he or she is buying. However, it is not the buyer’s responsibility to consider and ask every single question that could possibly pertain to the property. The Court encapsulates this idea by writing, “there is no sound policy to deny plaintiff relief for failing to discover a state of affairs which the most prudent purchaser would not be expected to even contemplate.” Of course, any person would want to know the facts that may impact the potential value of a home, right?

As preposterous as the facts of this case may be, in New York, and in general, caveat emptor applies to the physical condition of the home. Caveat emptor does not apply to the reputation of a home created by information disseminated to the public through the seller.  The Court held that “[w]here a condition which has been created by the seller materially impairs the value of the contract and is peculiarly within the knowledge of the seller, or unlikely to be discovered by a prudent purchaser exercising due care with respect to the subject transaction, nondisclosure constitutes a basis for rescission”. Even express disclaimers will not save the potential defendants. The Court takes time to note that even though the purchase and sale agreement included the phrase to sell the home “as is”, such language assumes that both parties have an equal understanding of what the property is or had an opportunity to reasonably discover such facts. As the Court reasons, “permit[ting] a seller to take unfair advantage of a buyer’s ignorance so long as [the buyer] is not actively misled [is] ‘singularly unappetizing’.” For here, the seller not only took advantage of the seller’s ignorance, but did so on the basis of facts the seller created about the home.

            While you likely will not have to deal with poltergeists when buying or selling your next property, the sale of a home does have its share of terrifying pitfalls. New Hampshire is a caveat emptor state. Surely, you would not want to be left with some haunted manor (made scarier by the termite damage you forgot to ask about). Consider consulting with an attorney that knows the kinds of questions you should ask before signing your name to any contract. At Parnell, Michels & McKay we seek to guide people through what can be obscure legalese to help provide sound legal advice steeped in the practical necessities particular to a client’s situation. If you are interested in learning more about the kinds of questions you should ask when purchasing a home, information you should provide when selling a home, or have questions and concerns about Property Law, please contact us to learn more. Let us help you avoid a “haunting” experience.   

Bill Parnell Awarded Citizen of the Year by Greater Derry/Londonderry Chamber of Commerce

By: Rory Parnell

My father moved to Derry in 1979. He had grown up in Virginia in a town called Falls Church, and then went to Boston University for college. He fell in love with the northeast, and after getting married moved to New Hampshire. There, he started a legacy as a community member who strove to help develop the Town of Derry. I was born a few years later and joined two brothers. We grew up in Derry and went to school here. Growing up, my father had many lessons for us to teach. He was always a proponent of setting a good example for us and working hard to develop us as people.  Now, looking back as an adult I can see now some of the sacrifices he made for us and the community.

When my father and I discuss the type of law firm we want to be, he often said we want to be lawyers who help those in the community but also make our own kid’s soccer practice. As we grew up, he coached our flag football teams, our soccer teams, and even moonlighted as a summer league hockey coach. He did this because he was needed not only by us, but by our teammates and our community. He coached so many teams and joined so many local sports boards and organizations that I don’t think I could list them without someone helping me. I always just expected that this was how it was, and this was normal. As I grew into adulthood, I realized just how much work he had to put in to be there for us and the community.

As Derry moved into the 21^st century, my father was there. I remember we had the Main Street Corporation office in our old East Broadway office, and I remember how much he worked with them to help revitalize the image of downtown Derry. East and West Broadway did not look as it does now. We’ve become modernized and an example to other New Hampshire towns that investing in your community will pay off. He worked hard to develop the image of our community, and continues to do so to this day. He worked hard as president of the Chamber of Commerce and made some difficult decisions. These decisions were hard and took a strong person to make them. Yet, he volunteered to not only make them, but to be a target for those negatively affected. In the end, the community was much better for it, and he was content with that. Getting credit for his work was never something he focused on or sought out.  He was happy with knowing the results were good for those around him.

So, tonight at the Derry/Londonderry Chamber of Commerce Annual Dinner he will be put in a spot that I do not believe he expected. He has been named Citizen of the Year for his tireless work in the community. As I think about the many years I’ve had the pleasure of calling him my father, I am happy to see him recognized. I was fortunate enough to be the one to call him and tell him that he was Citizen of the Year. His reaction was telling. He was speechless, which is something that does not happen often for a lawyer. He had to take a few moments to compose himself, as he felt honored to receive the award. The honor was not from getting the award itself, but from the recognition of the individuals and community members he worked hard to develop this community with. He put in countless hours volunteering for various community programs because he believed that is the way we need to act. We should be positive influences in our community, and strive to better those around us. This was its own reward to him, so being honored as Citizen of the Year meant a great deal to him because of those who chose him. These are his friends and fellow community members working side-by-side with him to make the community better.

To say I am proud of my father is obvious, but the fact the community is able to recognize his efforts means a great deal to myself and the rest of the firm here at Parnell, Michels & McKay. We are so happy to see him get this award tonight and join the list of so many other community members that have received this award in the past.  Tonight, he is named Citizen of the Year, and we are just plain proud of you, Dad. You set an example for all of us to achieve, and I hope we have many years left of working to make our community and the state of New Hampshire better than when we came to it. 

Collaborative Law Alliance of New Hampshire Honors Catherine P. McKay with 2016 John Cameron Award

               We are proud to announce that Catherine P. McKay has been named the 2016 John Cameron Memorial Award winner for her service towards the development of Collaborative law in New Hampshire.  This award is given annually to the individual who best represents and moves forward the goals and ideals of collaborative law.

                The late John Cameron was once quoted by Attorney McKay as having a “collaborative heart”. He, like Catherine McKay, recognized the benefit of keeping legal disputes out of Court and allowing parties to obtain their own relief by working together. This takes the focus off of litigation and the negativity that can accompany it, and instead focuses on a more progressive approach to legal problem solving.

                Collaborative law is an ideal option in family law, and has been a service offered by Parnell, Michels & McKay for many years. Attorney McKay is happy to continue her work in the collaborative law field, and continues to be a pioneer in New Hampshire for the Collaborative Law Alliance.

                If you are interested in collaborative law, please contact us to see whether it can be a fit for you. 

What is recrimination and how does it affect adultery divorces in NH?

            Divorce is an area of Family Law that frequently delves into the sensitive foundation of the parties’ relationship. Some clients come in emotional, hurt, and raw, looking to determine the exact cause of their divorce. However, fault-based divorces are difficult to prove in and of themselves. Moreover, parties must prove that the alleged fault was the exact and only cause of the breakdown of the marriage. Even when the parties are convinced they can achieve a fault-ground divorce (like adultery), there are a number of traps and pitfalls for potential Petitioners. The defense of “recrimination” is one such example. As a practical matter, this defense is frequently conjoined with a cross-petition for a fault-ground divorce to help support this legal defense.

            In August of 2016, the New Hampshire Supreme Court considered the application of recrimination for fault-ground divorces, especially in the fault ground of adultery. Under RSA 458:7, “[a] divorce from the bonds of matrimony shall be decreed in favor of the innocent party for any of” the statutorily-listed causes. In short, a fault-based divorce means that the guilty party loses their right to determine the outcome of the divorce. However, innocent in this statute is a legal term meaning “free from guilt”. Rockwood v. Rockwood, 105 N.H. 129, 131 (1963). As applied to RSA 458:7, it was accepted that parties must come into the divorce with clean hands in order to properly maintain a fault-based divorce. As mentioned, the defense to a fault-ground divorce is recrimination. Recrimination simply means that the allegedly innocent party is “guilty of an offense against the other spouse, which would be grounds for divorce.” Id. The question before the Court was based on the timing and use of this defense. The Court considered whether one must maintain clean hands through the entire Court proceeding, instead of only prior to the time of filing.

In the Matter of Ross and Ross, the Court determined that parties must remain their innocence in order to maintain their fault-ground divorce. 2016 N.H. LEXIS 184, *1 (Aug. 23, 2016). The parties’ divorce lasted for four years. Id., at *2. Both parties alleged fault-grounds at the start of the divorce proceedings. Id. Neither party disputed that the Respondent, who alleged adultery as a fault-ground for divorce, began a sexual relationship with another partner after the divorce proceedings began. Id., at *5. The Court decided that causation, or the reason for the breakdown of the marriage, is not an element of recrimination. Id., at *6. As a legal defense, recrimination is a simple question of whether a party is guilty of actions that would lead a Court to grant a fault-ground divorce in accordance with RSA 458:7 against them. In short, recrimination only requires a party to prove the other party is not innocent at any time during the divorce proceedings. See Rockwood, 105 N.H. at 131.

It is worthwhile to combine the facts and the law in summarized terms. The parties were still technically married. One party engaged in a sexual relationship after the divorce began with someone other than his spouse. He was guilty of adultery as a legal definition. Thus, his fault claims were dismissed on the basis of recrimination. The Court does not care if that instance of adultery could not have possibly caused the breakdown of the marriage. One may say, as the Respondent attempted to argue, that this is a wholly unreasonable result. In an interesting moment of self-reflection, the Court at least addressed that their resolution of this matter might lead to impractical resolutions. However, the Court indicates that it is the New Hampshire Legislature’s job to address the concerns of public policy. 

            Divorces are difficult enough. It is important to choose an attorney that will attempt to work with all parties to find an equitable and reasonable solution whether it be through collaboration or litigation. At Parnell, Michels & McKay we seek to guide people through the toughest times of their lives by providing sound legal advice steeped in the practical necessities particular to a client’s life. If you are interested in learning more about divorce, or have questions and concerns about family law, please contact us to learn more. We want to help.  

En Banc? Not for Tom Brady, as the Second Circuit Deals Another Blow to Brady's Appeal

On July 14, 2016, the U.S. Court of Appeals for the Second Circuit denied Tom Brady’s petition for a rehearing en banc. Originally, two of three judges at the Second Circuit reinstated Brady’s four-game suspension. Brady was seeking a rehearing on the matter. This decision marks a victory for what might one of the final legal milestones for Deflategate. The decision by the Second Circuit is not surprising. The Federal Court of Appeals rarely grants rehearings save for particularly far-reaching and serious cases that implicate Constitutional rights.

Over the past year, New Englanders became extremely knowledgeable in the ideal gas law, the NFL’s Collective Bargain Agreement (“CBA”), and the role of a Commissioner in pro sports. While the Deflategate controversy is a personal subject for many of us, possibly impinging on our personal moral principles of right and wrong, the legal issue is relatively narrow. In simple terms, this is a dispute of the agreement the NFL players made with the team owners. Article 46 of the CBA allows Commissioner Roger Goodell to serve as fact-finder, judge, and arbitrator. Agree with it or not, this is what the players agreed to several years ago. Making matters worse is that facts determined in arbitration are beyond the scope of judicial review. As such, most legal arguments following arbitration must be related to the fairness of the process of arbitration, not the facts that led to case presented for arbitration.

Therefore, Brady’s legal argument focused on Goodell and the League’s inability to be consistent with the application of their own rules and inadequate notice of particular rules. To prove the Commissioner is guilty of legal wrongdoing, the party petitioning for relief must prove that the Commission behaved arbitrarily and capriciously. Despite how Patriots fans may feel, this legal standard is quite difficult to prove. After the finding denying the en banc hearing, the only legal recourse that Brady possesses is to petition the Supreme Court.

The likelihood of success here is similarly slim. Brady will be looking for a stay of his suspension as well as a writ of certiorari. Stays granted by the Supreme Court are rare and the average time a decision is reached on a stay is random, taking days or months.  Justice Ginsberg is the circuit justice for the Second Circuit. Therefore, she will be the judge ruling on whether or not Brady receives a stay. Like writs of certiorari, legal stays from the United States Supreme Court are exceedingly rare. Brady will have to convince Justice Ginsberg that the case deserves to be heard by the Court as a legal matter and that he will suffer irreparable harm.

The legal road for Brady ahead is a tough one, but not impossible. Still, it seems like Jimmy Garoppolo will be the Patriots starting quarterback on September 11, 2016.

It is interesting to note that lawsuits relating to rule-based consistency frequently happen in the NFL, but not other sports leagues. Unlike the rest of the commissioners of the “Big Four” major sports leagues, Roger Goodell is not a lawyer. In this day and age, one can wonder how much longer the NFL can feasibly continue to run their business without an individual with legal training and the ability to comprehend laws, rules and statutes in order to maintain regular consistency.

Many other state agencies and private employers operate under their own sets of rules and regulations similar to the NFL. Insurance agencies have equally complex coding and procedures. The rules and regulations developed by these entities can often be written in legalese that is hard to comprehend. The lawyers at Parnell, Michels & McKay will help guide you through whatever legal issue that you may be having. If you are interested in any of our legal services or have questions and concerns about issues you may have in your life, please contact us to learn more. 

Grandparent Visitation Rights

            Family Law incorporates a number of intermingled and particular issues, often wracked with emotional turmoil and questions over a variety of rights. Grandparent Visitation is one such area. Strained family relationships can lead to parents cutting off contact between a grandparent and a grandchild. Fortunately, New Hampshire’s laws can provide some relief to grandparents in distress.

            Grandparent Visitation Rights are governed under RSA 461-A:13. While Courts in the state consider a number of factors, two factors are weighed more heavily than others. Courts will consider what is in the best interest of the child and whether the visitation would interfere with the parent-child relationship or the parent’s authority. As a general rule, a parent’s decision governs this issue. Still, the New Hampshire Legislature and Courts provide a number of opportunities for grandparents to assert their visitation rights if certain circumstances arise, including the death of parent or the absence of the nuclear family.

This past March, a case appeared in front of the New Hampshire Supreme Court, In re Lundquist, 134 A.3d 951 (N.H. 2016). The case helped determine some of the more confusing case law and statutory language regarding the ability to bring a petition. When a father passed away, the maternal grandparents sought visitation rights. The grandparents argued that both the absence of the nuclear family and the death of a parent provided standing as there were no prior problems with visitation before the father’s death.

It was unclear as to whether these such grandparents could have standing as their child, the mother, still lived. Some argued that the statute can grant standing upon the death of a parent, but only to the deceased’s parents. The reason was that the grandparents would be “stepping into” the deceased parent’s role. The Court found that the maternal grandparents could have standing considering the plain meaning of the statute took no such particular stance as to restrict which grandparents could apply for visitation. While the Court would still need to consider the best interests of the children, the Court could not deny the maternal grandparents’ petition on technicality simply because their child still lived.    

            At Parnell, Michels & McKay we seek to clarify laws that appear to be obscure, technical and confusing. If you are interested in learning more about grandparent visitation rights, or have questions and concerns about family law, please contact us to learn more. We want to help.  

Rory Parnell on Why Attorneys Should Consider Pro Bono Work

http://www.pmmlawyers.com/

Dog Bite Cases

                Dogs are man’s best friend. Most of us have had them as a part of our families over the years. However, dogs (especially poorly trained dogs) can be highly dangerous animals. When they attack, they can cause lasting and permanent physical and emotional scarring. Some breeds (like pit bulls) can cause even more significant damage because of their physiological makeup. These breeds are often black listed by insurance companies because of this. Often, insurance companies will charge higher premiums to dog owners who own dogs like a pit bull or Doberman pincher. This is not necessarily because they are more aggressive than other dogs, but because the damage they cause is so much more significant.

                In New Hampshire, dog bite cases are strict liability. This means that the owner of a dog is strictly liable for injuries caused by their dog’s attack. So, an insurance company normally cannot claim that the victim of the dog attack contributed to our caused the attack. While there are exceptions to this rule (like deliberately antagonizing a dog), it is a very difficult defense to establish. Our firm also handles looking at whether other entities could be held responsible besides the owner, as it is not always just the owner’s fault for the dog attacking someone.

                While dog bite cases are not that complicated when it comes to liability, they are much more complicated when it comes to damages a person can suffer. Often, the injuries are open wounds but do not involve broken bones. They typically involve permanent scarring, which can have lasting effects both physically and mentally. It is also common to suffer significant emotional trauma from a dog attack. This can include the victim being unable to be around dogs for fear of their safety, or post-traumatic stress from the incident.

                At Parnell, Michels & McKay, we have experienced personal injury attorneys that can address all the ramifications of a dog attack. Contact us today if you were a victim of a dog or animal attack, and see how our team can help you. 

Massachusetts v. New Hampshire: Key Insurance Law Differences

                New Hampshire and Massachusetts share similar histories, but over time their laws have become different. One in particular is the Massachusetts’ consumer protection act (M.G.L 93A) and its sister law M.G.L 176D which regulates the practice of insurance in the state. The big key difference is that the Massachusetts’ consumer protection statute applies to insurance companies conducting business in the Commonwealth, while New Hampshire’s supreme court decided that New Hampshire’s consumer protection statute (RSA 358-A) does not apply to insurance companies. This was a frustrating Court decision that has had significant ramifications on people of New Hampshire being injured by unreasonable and unsupportable insurance practices.

                In Massachusetts, M.G.L 93A provides that if an insurance company violates M.G.L 176D, then the injured party (the Plaintiff in most cases) could be entitled to two to three times their damages, plus costs and attorney’s fees. In a lot of cases, this means a doubling or trebling of the judgment obtained in the underlying injury case. This provides a significant incentive to insurance companies to deal in good faith with injured Plaintiffs, as if they do not they can get hit with large judgments for their unreasonable practices.

                In New Hampshire, our only statute governing the insurance companies when they are unreasonable is RSA 417. This statute does not have much effect, if any, on the practices of insurance companies as they know the penalties for violating that statute are minimal. Thus, insurance companies have been protected by our legislature and Supreme Court to the detriment of its citizens. This was an unfortunate result, and one injured Plaintiffs in New Hampshire have been frustrated by since the ruling came down.

                While Massachusetts has always been more consumer friendly than New Hampshire, it is always important to note that New Hampshire does have some favorable laws. Two of them being no income tax and no sales tax, and the sales tax at least reduces costs for consumers.

                Still, it can be a frustrating practice, and it is important to know your rights in both states when you are injured. The Personal Injury attorneys at Parnell, Michels & McKay can help you navigate the legal field and get the best benefit possible in your case. If you are injured in either New Hampshire in Massachusetts, contact our office today to find out what rights you have. 

Collaborative Divorce - Why You Want to Consider the Collaborative Approach to Divorce

            Collaborative Divorce is an approach to problem resolution in the family law setting. In New Hampshire, parents are often required to discuss and agree on a “parenting plan” which encourages collaborative resolution.  It is an alternative dispute resolution technique for resolving conflicts and reaching agreements using cooperation rather than adversarial techniques and litigation. It recognizes the value of an attorney, but avoids the involvement of the Court. The idea is that the parties will fully cooperate in the process. The result of the process is that the divorcing parties develop skills through the collaborative process that will assist them in addressing not only the issues common to divorce, but also the inevitable issues that all parents confront as their children grow.

            The Collaborative process incorporates three principles: A promise not to go to court to resolve issues; an honest and open exchange of information and a desire to achieve a resolution that puts the priorities of the parties and their children first.  Mutual respect and mutual effort in resolving issues to achieve both parties’ goals is at the heart of the collaborative process.  Through this process the parties together control the outcome, not the court. This leads to a meaningful result that is the product of contemplation and dialogue and not the artificial result that often occurs when the marriage is condensed to a few hours presentation in front of a judge.

            The collaborative process begins with the parties and their counsel signing a contract that obligates all to reach a resolution without court involvement. The contract includes an express provision that bars court involvement in decision making and requires the attorneys to withdraw and the parties to retain new counsel if the collaborative process breaks down. As a result, all involved, including counsel, have a vested interest in reaching a resolution using the collaborative process. This contract is a key tool in achieving the goal of developing effective relationships, solving problems jointly and preventing court battles that harm rather than help heal.

            At Parnell, Michels & McKay we encourage families going through the divorce process to consider a collaborative approach first. If you are interested in learning more about the collaborative process and how it may help you, please contact us to learn more.

LANDLORD AND TENANT LAW: THE EVICTION PROCESS

            Often clients, especially tenants, are confused by the eviction process. The first step in any eviction is to serve a “Notice to Quit” or Eviction Notice. The Eviction Notice spells out the basis for the eviction, and specifies the time period the tenant has to leave. If the eviction is based on failure to pay rent, a Demand for Rent should accompany the Notice to Quit. Both the Notice to Quit and Demand for Rent forms are available online at the NH State website.

            If you are a landlord and are not sure what you should put on the form, and what you should be evicting your tenant for, you should contact an attorney to help you. Our firm handles Landlord and Tenant matters, and would be happy to assist.

            If you are a tenant, the Eviction Notice does not mean you have to leave immediately. Once date you are asked to leave by your landlord passes, your landlord still has to file a Landlord/Tenant Writ in the local district court where you live. It is this filing that starts the Court action. If a Landlord/Tenant writ is filed against you, you should contact an attorney to help you.

            After the Landlord/Tenant writ is filed, and the Tenant files an Appearance in the Court action, the Court will schedule a hearing on the merits. It is at this hearing that the Court will decide whether the landlord or the tenant has the right to use and occupy the premises. If the landlord wins, the Court will issue a Writ of Possession that gives the Landlord the right to use and occupy the premises. This Writ of Possession must be served by a local county sheriff, and once served, the Sheriff will physically remove the tenant from the property. The hope is that the process does not go this far, but often it becomes necessary.

            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, Michels & McKay that can help guide you through the process. If you find yourself in need of assistance, contact our office.  

UPDATE: USING A PHONE WHILE DRIVING: HOW THE NEW BAN IS AFFECTING TORT CASES

                As of July 1, 2015, the State of New Hampshire banned the use of a cell phones while driving, and limited any use of a handheld electronic device. This included not only cell phones, but tablets and GPS devices as well.

                Since the law was passed, the State of New Hampshire has tried to inform all citizens of New Hampshire and those that travel here that such use is banned. Since the inception of the law, police officers have been paying much closer attention to seeking out the use of cell phones while driving. This has led to increased tickets, and escalating fines for those that are using their phones while driving.

                Since the ban, we are discovering that police officers investigating motor vehicle accidents are much more focused on the use of cell phones while driving. The primary goal is to limit and hopefully eliminate distracted drivers from using their phones while operating a motor vehicle. When such drivers are cited for use of a cell phone, this becomes a key part of any motor vehicle accident case and can be used to establish liability in a given case.

                It is always important for any citizen to be aware of the rights and laws that affect them on a day to day basis. If you find yourself injured by a distracted driver, contact the experienced attorneys at Parnell, Michels & McKay.

                

New Hampshire Primary – Get out and Vote!

                Today is New Hampshire’s first in the nation primary for the presidential election. This primary has been a jumping off point for the presidential election each year, and is an important event both from a national perspective, but also from a state perspective. New Hampshire can often surprise the nation in these primaries in terms of who ultimately wins, but the tradition is an important one for our state.

                It is an important part of any citizen’s duty to vote in this country. At Parnell, Michels & McKay we always encourage community involvement, and have a passion for our local community. Voting is just one of the many ways you can go out and be involved in your community and have your voice heard. Moreover, voting is part of our national fabric and everyone having an equal voice is something the founding fathers of our country were proud of.

                So, no matter when you do it, if you are eligible to vote, get out and vote today and do your civic duty and vote!

New Medical Payment Legislation in NH - Why Senate Bill 303 should be passed.

      A proposal in front of the New Hampshire legislature this month was Senate Bill 303. Senate Bill 303 clarifies language in the medical payment statute relative to payment of health insurance liens in personal injury cases. In every private health insurance policy is a provision involving a right of reimbursement, or "subrogation clause". This clause states that if a person receives a judgment or settlement from someone relative to injuries they sustained, then the health insurer has a right to be reimbursed for any bills they paid related to those injuries. This is a complicated provision, so it is important to ensure you seek the advice of an attorney before trying to deal with this on your own.

      The issue that was created by the initial version of RSA 264:16 was that the payment of private health insurance liens was never specifically mentioned in the statute. Auto insurers dealing with medical payment claims took the position that if a medical bill was paid by the health insurer, then that relieved them of their obligation to pay the bill except for any out of pocket costs like co-pays. Plaintiff's attorneys in our office and elsewhere took the position that the private health insurer's had to be paid back, and that the statute prevented double recovery of a medical bill, and the auto insurer would be required to pay either the bill in full, or to pay the private health insurer lien that is created through their subrogation clause in the contract. This created a number of issues with the Courts, and led to fights between Plaintiff's counsel representing the injured, and defense counsel representing the insurance companies.

      Senate Bill 303 clarifies this language, and reaffirms the intent of the legislature that the health insurance lien can be paid by the auto insurance medical payment carrier. While the bill has yet to be passed in full, we see this as a large step forward to protecting the rights of the insured and it is our hope it passes.

      At Parnell, Michels & McKay we have over four decades of combined experience in navigating the complex and difficult personal injury litigation cases with insurers. Coordination of your insurance benefits through the many statutes that regulate the insurance industry is just one of the major issues you may face. If you are injured in an unfortunate accident, contact the experienced attorneys at Parnell, Michels & McKay so we can help you navigate the complex insurance field and make sure your rights are protected.

PROPERTY LAW: ADVERSE POSSESSION

                At Parnell, Michels & McKay, we handle a fair amount of property litigation cases. One such type of litigation are claims made through adverse possession. It is one of the oldest forms of law in property, and involves the taking of title to property without having to execute a written deed. It most commonly arises in boundary line disputes, and can involve something as innocuous as the misplacement of a fence by a friendly neighbor. However, the effects this doctrine can have on people’s property can be immense, so it is important to try to understand the concept of adverse possession and to seek legal advice as soon as possible.

                Basically, the initial test is whether the person claiming adverse possession has acted as the true and lawful owner of the property. The reason being is an adverse possession claim must be open, notorious and continuous throughout the statutory period.  Open means that the claim is obvious. In our sample above, it is the placement of a fence across the boundary line of a neighbor. This can also be done in the form of farming, building an addition on a house, or just simple planting bushes and trees and tending to them over time.

               

                The claim must also be “notorious”, which is a nicer way of saying that use of the neighbor’s property cannot be by that neighbor’s permission. It is ok to be operating under a mistake of where the true boundary line is, but if the neighbor is aware of the issue and says its ok, then there is no “adverse” possession.

                The final part is the use must be continuous for the statutory period. In New Hampshire, this means for twenty years. So, in our example above, the neighbor (or his predecessors) would have had to have the fence on his neighbor’s property for twenty continuous years.

                Adverse possession can also be found in roads, paths or even beaches. In each situation, the factual circumstances become integral to the case. In these situations it is always important to consult with an attorney who handles boundary dispute litigation. Our firm regularly handles boundary dispute litigation, including adverse possession cases.  So, if you believe an adverse possession issue exists on your property, contact the experienced attorneys at Parnell, Michels & McKay to discuss your rights.

Revocable Trust v. Will: What is the best choice for you and your family?

            We often get questions on whether a client should have a will or a trust, and what the benefits of each are. For each client, there are benefits to both types of estate plans.

            Wills are simple and can be much cheaper to complete then trusts. They direct where your property goes when you pass into the great beyond, and they can provide direction to your family when they deal with your passing. However, wills can sometimes be inefficient to deal with the property in a way that you want, and they require the will to be probated in Court. They are also public documents that can be viewed at Court, and for some more private people that can be a problem.

            Revocable trusts provide clients with more options on how to deal with their property. A trust can avoid the problems of probate, and address specific situations like what happens if you become incapacitated. Trusts are private agreements and do not become public records. They can provide a trustee to make decisions if a beneficiary is not properly prepared to receive the property. A trust can be effective for life, and most importantly you can maintain control over your assets during your life. Trusts also can provide protections for situations like divorce or drug abuse, and allow a person to maintain control over their assets during their life. There are some cons to trusts as well, like the cost which is more expensive than wills. Trusts can be time consuming, and may involve other potential costs as part of the trust’s creation.

            There are also ways to essentially combine a will and trust with what is called a “pour over clause” in your will. In this situation, you can create a trust through that provision which effectively funds the trust at the time of your passing. Any such provisions need the careful attention of an estate planning attorney who understands the estate process.

            No matter what you choose for yourself and your family, it is always important to get proper legal advice on which options would benefit you the most. The experienced estate planning attorneys at Parnell, Michels and McKay can help you determine which options are best for you, and prepare an estate plan tailored to your needs. Should you be interested in finding out which options work best for you, contact our office to schedule an appointment. 

Mounting Debt: Is Bankruptcy an option?

                 During the housing crisis in 2008 and 2009, many people started losing their homes to foreclosure. The job market tumbled, and people all over the country found themselves unemployed and unable to pay their mortgages. Some people had their home values plummet, causing them to be “under water” on their mortgage in that their mortgage balance was higher than the property value of their homes. This caused substantial strife and stress for many Americans as they slogged through the recession in our economy.

                During that time, many individuals turned to bankruptcy to try to save their homes. They also faced aggressive debt collectors and creditors trying to take property and bringing lawsuits against them. Faced with a mountain of debt and no way to pay, many people did not know how to deal with these problems. During that time, the amount of bankruptcy’s filed skyrocketed as people looked to the law to save their homes. Today, the amount of filings has lowered, but the economy has not fully rebounded and people are still facing significant issues paying their mortgages and other bills. Those lucky enough to do loan modifications today find sometimes that even then they can’t pay the mortgage.

                At Parnell, Michels & McKay, we offer over three decades of experience in navigating the difficult bankruptcy and debt collection fields. Our bankruptcy professionals will help you determine the right type of relief for you, whether it is Chapter 7 or Chapter 13 bankruptcy. We offer hands on advice, and will go through all of your finances to determine what the best method is for you to address your climbing debt. As many people may not be aware of, bankruptcy was incorporated into our very constitution. It was one of the pillars in which our country was founded. The concern in colonial times was with people suffering in debtor’s prisons, which happened often prior to the Revolutionary War. The founders of our country, including Thomas Jefferson, created the right to file a bankruptcy to address when American citizens face the very real pressure and stress of owing more money than they can pay. This is why bankruptcy is an important part of our American jurisprudence, and anyone faced with escalating bills should consider whether it is an option for them.

                If you find yourself concerned about your financial future, contact the experienced attorneys at Parnell, Michels & McKay today to see how we can help you navigate your debt problems.