Jessica's Law - Why it's Important to Clear your Roof of Snow and Ice

                Jessica’s Law has been the law of New Hampshire for about fifteen (15) years now. It is a law that requires the clearing of ice and snow off the top of a vehicle prior to driving it. The basis of the law was a tragic accident that claimed the life of Jessica Smith in 1999. A piece of ice about nine (9) feet long flew off of a tractor trailer, smashing into a box truck that veered into Jessica’s vehicle killing her. The accident in Peterborough is not long forgotten by her parents, as Jessica would be thirty-nine (39) years old coming up.

                However, we find that driving around that many people still do not clear their entire cars. We understand what it is like to be rushed in the morning, cold, freezing and not wanting to clear off the top of your SUV or truck. Still, the consequences are dire. If the ice on the top of your roof comes off and kills someone, you are going to think long and hard about whether that extra five minutes you saved were worth it. Obviously, nothing is worth losing a life over, especially not clearing your car off. We typically suggest a “snow broom” in lieu of an ice scraper, as a broom is longer and can reach the top of any vehicle no matter how tall or short you are. No matter what, as fellow drivers in New Hampshire, we ask that you take that extra few minutes to clear off your vehicle and make it safer for those around you.

                There are many ways someone can injure another through negligence. Failing to clear your car off and causing an injury as a result of the flying ice is just one of the many ways laziness can cause someone to be hurt unnecessarily.  However, the lawyers at Parnell, Michels & McKay can help you try to get your life back on track if you are injured. Contact our office and find out why we are one of the fastest growing firms in the State, and one of the most decorated. 

PMM Christmas Wishes

            At Parnell, Michels & McKay, PLLC, we are in the business of conflict and conflict resolution. In carrying out our responsibilities, we often see people experiencing great difficulties, stress and pain in their personal lives. One would think that going through that in the holiday season would take all of the joy and happiness of the season. However, over the years as we have gone through the season with our clients, what we have learned is that the magic of the season finds its way into even the most difficult of circumstances. Clients with serious and painful injuries, a mom or dad with small children experiencing their first holiday season apart after a separation, clients in many other difficult circumstances, they still manage to find the joy and hope that is the foundation of the holidays. Surprising? Not really. Irrespective of all of the differences that are often played on by some trying to promote their own agendas, when all is said and done there is a basis goodness and a basic worth to every human being and that is underscored by the holidays and the spirit of the season.

            It is a basic belief in the goodness and worthwhileness of each individual that we look at when we are dealing with a client in crisis. It is a similar approach we also use when dealing with adversaries. That may be difficult at times because of the adversarial nature of our system. However, what makes an adversarial system work is respect for an opponent and an assumption the opponent has gotten to his or her position in a good faith fashion.  Reasonable persons can disagree and dissenting positions should be addressed with respect and not with opprobrium or belittling. Parnell, Michels and McKay brings that approach to all of our adversarial dealings. We believe that approach is how the system was originally envisioned and when implemented what make it work

            So, at this time of year, we reaffirm this approach to the practice of law and at the same time we encourage all to treat others with respect, with compassion and understanding, be they friends, adversaries, or somewhere in between. Because deep down all are worthy and deserving of respect and no time like the holiday season to reaffirm that mutual respect.

In closing we would like to share the following quote from Nelson Mandela:

"No one is born hating another person because of the color of his skin or his background or his religion... People must learn to hate, and if they can learn to hate, they can be taught to love... For love comes more naturally to the human heart than its opposite."

Happy Holidays from Parnell, Michels and McKay

Christmas Party - PMM 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.   

THE CASE OF THE DNR ORDER TATTOO

            Most of us have heard the story about the unconscious patient brought to an emergency room in Florida with “Do Not Resuscitate” tattooed across his chest.   The seventy year old man had chronic obstructive pulmonary disease, in addition to other ailments.  

Getting a tattoo to express one’s wishes to not receive cardiopulmonary resuscitation (CPR) may hold some attraction.  After all, the patient’s wishes would seem to be clear and there is no need for your loved ones to rush to the hospital with your DNR request or health care proxy.  But, in fact, it has the opposite effect.  Emergency medical responders would be faced with a dilemma.  If just the letters “D.N.R.” are tattooed, the responders may not immediately see the tattoo or they may not be confident in what the letters represent as it could be the patient’s initials or the initials of a loved one.  It could be that the tattoo was the result of a drunken night gone wrong, such as the case with a patient who was in the hospital for complications related to diabetes.  When asked about the DNR tattoo, he indicated that he had lost a poker bet while inebriated but he wanted CPR if it would prolong his life.  More importantly, if the tattoo is determined to not be legally recognized and the first responder had not resuscitated a patient who could otherwise be saved, he or she may face legal consequences.    Finally, a tattoo is permanent and does not allow the patient to have a change of heart as to their instructions unless they undergo expensive tattoo removal.

            In the case of the Florida patient, the man did not have any identification with him so the hospital delayed implementation of the DNR order.  The hospital only began to honor the patient’s wishes when the hospital’s ethics staff determined that it would be reasonable to assume the tattoo represented the patient’s wishes.  The patient was finally identified and a legally binding DNR order was found which had been signed by the patient.  We recommend that our clients prepare legally binding documents, such as a health care power of attorney or living wills, rather that the use of tattoos to express end-of-life wishes.

            Does your family know what your wishes are with respect to your healthcare in the event you are unable to communicate with your medical care professionals?  There is no need to get a tattoo!  We offer various forms of estate planning depending on each client’s goals and needs, including health care powers of attorney and living wills. Contact us if you want to avoid the situation this man in Florida found himself in, and if you are in a difficult situation, we handle probate litigation as well. 

Closing of Supervised Visitation Centers Complicates Contested Parenting Cases

          The Greater Nashua Supervised Visitation Center is expecting to close its doors at the end of the year due to a lack of federal funding.  This closure further reduces the options available to parents needing supervision of their parenting time.  Since the 2014 closing of the Manchester YWCA supervision center, only a handful of supervised visitation centers remain in New Hampshire. In 2016, Focus on Families opened in Manchester, filling part of the void.  However, due to the limited hours each of the centers offer for supervision services, there is often more cases needing supervision than time available to supervise.  With the closing of the Greater Nashua Supervised Visitation Center, the shortage of available supervision will only increase. Supervised visitation centers serve an important role in family law in New Hampshire.

          The need for supervised visitation services is generally as a result of child abuse or domestic violence, but can also be the result of drug or alcohol abuse. Supervision can sometimes be limited to the parenting exchanges.  This is often necessary if the parents are not permitted to have contact due to a domestic violence or other restraining order.  However, supervision is often needed for the entire time the children spend with a parent.  When visitations are fully supervised, a caseworker is present in the room and monitors the entire visit.  The caseworker also prepares notes about the visit, and can also intervene if the parent is behaving inappropriately. If necessary, the caseworker can terminate the visit.

          As we face the closing of Greater Nashua Supervised Visitation Center, we are left with only one available supervision center in southern New Hampshire.  If the parents do not have family members willing or able to supervise a visit, parents may be forced to travel out of state to find supervision.  Alternatively, parents may be unable to spend any time at all with their children. As a result, there are many different considerations being made as to how to deal with the problem, including increased counseling requirements, completion of anger management classes, and other ways the Court can compel a parent that needs supervision to seek help.

          If you are facing a need for supervised visitation for your ex, or even for yourself, the experienced attorneys at Parnell, Michels &McKay can assist you in obtaining the appropriate family law relief for your case. Contact us if you need assistance for your case. 

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. 

Fake Reviews!

The internet is both a wonder and nuisance. Over the past few months a flurry of New Hampshire attorneys and law firms have been “one star” reviews on Google regarding the quality of their service. Some of the reviews are blank like ours, but often the reviews are filled with diatribes calling the firm “backward”, “hillbillies”, or just plain “stupid”.

It is our belief that these reviews are possibly being left by a disgruntled client of a New Hampshire law firm at some point in time, or worse yet, a competing law firm in New Hampshire. This person is creating several “burner” accounts that fit a similar profile described above that either adopt nonsensical names or take the names of other New Hampshire attorneys.

The following profiles are just one of numerous, similar profiles:

https://www.google.com/maps/contrib/114123896868823530171/reviews/@28.8316611,-155.0579163,3z?hl=en-US

https://www.google.com/maps/contrib/115401134572649511482/reviews/@42.92534,-71.4291695,10z?hl=en-US

https://www.google.com/maps/contrib/100395689712781111375/reviews/@42.5199542,-70.8268523,9z?hl=en-US

https://www.google.com/maps/contrib/110329191350571731326/reviews/@42.7778522,-71.2315895,15z/data=!3m1!4b1!4m3!8m2!3m1!1e1?hl=en-US

https://www.google.com/maps/contrib/118105542659935679416/reviews/@43.0625504,-71.3747556,9z/data=!3m1!4b1!4m3!8m2!3m1!1e1?hl=en-US

https://www.google.com/maps/contrib/108586059615071393640/reviews/@42.9262141,-71.3659376,10z?hl=en-US

https://www.google.com/maps/contrib/110641792260016494779/reviews/@42.9476263,-71.2994511,10z?hl=en-US

We could continue listing the countless burner accounts, but we believe you readers will get the point. We are more than willing to accept and address any true and honest criticism; however, we feel compelled to answer false criticism. We hope this serves as a cautionary tale of doing your research on the internet.

If you face false criticism, you can seek an injunction and order to have the reviews taken down if they are defamatory in nature.

The attorneys at Parnell, Michels & McKay seek to advise people through the toughest moments in their lives by providing understandable legal advice and guidance to their clients. If you are having a currently dealing with a legal problem, or you have pressing legal concerns, please contact us today!