Personal Injury Cases: The importance of a timely investigation of the circumstances of a collision.
One would think that if you are driving along in your car and another car hits you from behind, that, alone, is sufficient proof that the collision is the other driver’s fault. That is not so. It still is the injured party’s responsibility to prove that the driver who hit you from behind did so because of his/her fault. There are a number of Connecticut court cases that emphasize it is the injured person’s burden to prove that the collision is the other person’s legal fault, even though it may seem obvious that is the case. This underscores the need for a thorough and prompt investigation of the circumstances of a collision in every personal injury case, even those that seem obvious.
Medicaid Planning: The look back period for gifts has been increased from three years to five years.
On February 8, President Bush signed legislation that makes radical changes in the Medicaid eligibility rules. One such change has to do with what is referred to as the “look back” period. The look back period is the number of years prior to the date of a Medicaid application with respect to which gifts must be disclosed. Prior to February 8, the look back period had been three years for all gifts, except gifts to a trust. The new law increases the look back period to five years for all gifts. This is a significant change in the law! Although the change in the look back period and other changes effected by the law make asset protection strategies for Medicaid planning more complex, there still are many creative ways to protect all or some of a family’s assets if a loved one faces the prospect of needing long term care.
Wills, Trusts, and Estate Planning:The importance of funding a revocable trust (“living trust.”)
One of the reasons an estate plan includes a revocable trust (sometimes called a living trust) is to bypass the probate administration process. That is because assets actually in the trust on the date of your death can be transferred to your beneficiaries by your successor trustee without needing the assistance of the Probate Court to do so. The process of transferring your assets from your individual name to the name of your trust is referred to as funding the trust. In order to accomplish this important purpose of the revocable trust, it is critical to verify that your trust actually has been funded.
Real Estate Transactions: A “letter of intent” or “memorandum of understanding” can have legal significance.
Occasionally, parties to a real estate transaction sign a writing they prepare called a “letter of intent” or “memorandum of understanding.” It often occurs in the early stages of a transaction and springs from a belief that the document is not legally binding, but merely expresses what the parties plan to do. There are many Connecticut court cases holding that such documents can be treated as legally enforceable contracts. You may end up stuck in a deal that does not contain the terms you expected.Therefore, it is not advisable to sign what you consider to be a non-binding letter of intent or memorandum of understanding without having the document first reviewed by your attorney.
Business Entities: Arbitration provisions in business agreements can be helpful, but need to be thought through with care.
Traditionally, legal disputes between two parties have been resolved by a judge or jury in a court proceeding. Increasingly, however, parties in business transactions are opting to have disputes resolved by binding arbitration. The assumed advantage of binding arbitration is that it can provide a quicker and less expensive resolution of a legal dispute. Nevertheless, there are circumstances in which a traditional court proceeding may be advantageous. Before entering into a significant business agreement, you should have legal advice about whether a court proceeding or arbitration is the better mechanism to protect your interests in the event a dispute arises about the agreement.
Worker’s Compensation: Social security offset is repealed.
For many years, Connecticut law had provided that if you are entitled to worker’s compensation benefits because of a work related injury, but, at the same time, you also are receiving social security benefits, your worker’s compensation benefits were reduced, dollar for dollar, by the amount of social security benefits you were receiving. Many perceived this as unfair and discriminatory. This session of the Connecticut legislature repealed that law. As a result, there no longer is a reduction in worker’s compensation benefits for any social security payments you may be receiving.
Insurance Company Bad Faith: In most cases, there is no independent claim for damages for the bad faith processing of a worker’s compensation claim.
The Connecticut Supreme Court recently ruled that in most cases bad faith processing of a worker’s compensation case does not give rise to an independent claim for damages against the insurance company. The Court concluded that the Connecticut Worker’s Compensation Act, itself, contains adequate remedies for a worker who has been treated unfairly by an insurance company that processes a worker’s compensation claim. The Courts of several other states that had considered the same question had reached a different conclusion, so the Connecticut Supreme Court’s decision was somewhat surprising. The Court did leave the door open for an independent claim by stating that if the conduct of the insurance company is extraordinarily egregious, an independent claim may be asserted.
Very truly yours,
STEVEN P. FLOMAN