Percentage Fee: Of What?

What is Basis for Lawyer’s Fee? The lawyer’s fee in a personal injury case is, as I am sure you already know, based on a percentage of the amount recovered for the client, but some people want to know if this percentage is applied to the total amount of the settlement, or only to the amount to be received by the client after payment of medical bills. It is true that medical bills, including those paid by health insurance, usually have to be paid back, either partly or in full depending on the type of health insurance plan, when there is a settlement of a personal injury claim. The lawyer’s fee, however, is a percentage of the total amount of the settlement, so the medical repayments must be taken out of the remaining portion due to the client. The rationale here is that the efforts of the lawyer have been successful in relieving the client of the obligation to pay back these bills, so the client has benefitted in that sense, and the lawyer is entitled to be compensated for his or her work.

Electronic Signature Pads

Electronic Signing In these days when internet purchasing has become common, and we are getting more and more into a cashless economy, it has become a matter of routine to give out our credit card or debit card information. Some people I know carry no cash whatsoever and rely on credit or debit cards to make even the most trivial purchases, such as a cup of coffee at Starbuck’s (not that a cup of coffee at Starbuck’s is so cheap). This freedom with card information sometimes causes people to forget that there are some unscrupulous people who will misuse it to line their own pockets. This misuse of credit card info is not restricted to outright theft, such as using a stolen card number to run up a slew of purchases. A business which has acquired the card data in a perfectly legitimate way may overreach, either intentionally or through sloppy bookkeeping, resulting in charges to the card which are incorrect. In a case with a slightly different twist, an Arizona student has sued LA Fitness, a California fitness club chain, for using his electronic signature to continue charging his membership fees even though he thought he had rejected the membership. The plaintiff claimed that LA Fitness drained his bank account of money he had set aside for tuition. The case raises an interesting question about the use of electronic signatures, because the plaintiff claimed that he gave his signature after being told that it was for a waiver but was in reality a contract for personal-training. His lawyer noted that the electronic signature pad used in this case is similar to those in retail stores where purchasers sign credit agreements. He said that such pads should not be legitimate for contracts and other complex documents. The student said, “I was never someone who thought I would sue anyone. But somebody needs to stand up.” He was referring to hundreds of complaints filed on consumer web sites alleging that LA Fitness bills for unrequested services, continues making auto-deductions after contracts are cancelled and refuses to pay back the amounts overcharged. So, a word to the wise: be careful with your credit or debit card information, and be sure you know what you are signing when using an electronic signature pad.

Workers Getting Ripped Off

Another Wage and Hour Claim I am always amazed to read about the number of cases involving underpayment of workers under our wage and hour laws. It makes me think that there must be many instances of this sort of violation going unreported right here in Maine. My suspicion is that many, probably most, of these occur in workplaces with national or regional ownership where the same violations are taking place in multiple locations. If you or someone you know is being denied the full benefits of getting paid for all hours on the job or for getting overtime pay for hours in excess of 40 in any given week, then call and ask for me personally, and I will be pleased to set the wheels in motion to recover all of the back pay which is coming to you. What brought this to mind was the recent settlement of a lawsuit by employees of the Hilton Hotel in Los Angeles. The workers claimed that the hotel failed to pay for time preparing for work and taking off uniforms which were required to be left at the hotel after each shift. In the settlement the hotel agreed to pay $2.5 million to about 1200 workers who worked at the hotel from 2004 to 2011.

Whiskey Vapors

“Sweet Vapors” There appears to be no end to the variety of conditions and situations which can form the basis for legal action, but whiskey fumes in the air? Who would have thought? In a unique class-action lawsuit filed last Wednesday in Louisville, Kentucky, the plaintiffs have sued three Louisville distilleries claiming that “sweet vapors” from aging whiskey carry a fungus which produce persistent black spots on cars and homes in the neighborhood. According to the plaintiffs’ attorney recent tests on some of the spots have detected a substance known as “whiskey fungus” or “angel’s share fungus.” Officials identified it as some sort of nonlethal mold which is not harmful to human health but is a nuisance. A spokesman for the targeted whiskey companies said that the spots are caused by a naturally occurring mold found often in the environment and unrelated to the production of whiskey. He said that that the companies do not believe that they have caused any harm to the plaintiffs. So here we have a clear disagreement, and resolving disputes is, after all, what our courts are for, but a class action lawsuit seems a bit over the top for what appears to be a rather minor issue. The fellow who started all of this could probably have got the justice he wants by bringing his claim in small claims court—with no lawyer required.

Motorcycle Safety

Bikers, be Safe It is always sad to see the injuries in motorcycle cases in our office, and although the person at fault in the accident is almost always the other driver, many times the calamity might have been avoided if the biker had taken an extra measure of defensive driving. Because of my concern for the safety of our motorcycle friends, from time to time I try to pass along a tip which can serve as a reminder. If this saves just one motorcyclist from injury, my effort will be well worth it. Studies have shown that people who feel less vulnerable to injury have a tendency to take greater risks and to overcompensate for enhanced safety features thus leading to more injuries and fatalities. The danger here is that a biker with a helmet and full protective gear might drive faster, take faster turns and be less careful of other traffic than bikers with no helmet and ordinary clothing. So being aware of this potential danger is the first step in avoiding it. By all means take advantage of all of the protection you feel comfortable with, but be aware that it is not a free pass for reckless driving.

Truck Safety Rules

Truck Safety Rules Truck drivers and their employers carry a heavy responsibility to make sure that their big rigs do not pose a hazard to other vehicles on the highway. Unfortunately the pressures to make a profit or to increase the driver’s or operator’s income sometimes result in decisions which endanger the traveling public. Drivers are often tempted to push the limits of the rules, particularly in failing to observe the required rest requirements. Any truck driver who is on the road in a tired condition poses a serious hazard. The Federal Motor Carrier Safety Administration has promulgated new rules designed to increase highway safety. The updated rules provide: • An 11-hour driving limit (unchanged) with a requirement of a 30-minute break before 8 consecutive hours of driving • During the 34-hour “restart” or off duty time, there must be at least two consecutive nighttime periods lasting from 1:00 a.m. to 5:00 a.m. Although the agency has been criticized for its failure to adopt more stringent requirements, especially leaving the 11-hour limit rather than going to 10 hours which many safety advocates were pushing, according to the agency, “The purpose of the rule is to limit the ability of drivers to work the maximum number of hours currently allowed, or close to the maximum, on a continuing basis to reduce the possibility of driver fatigue. Long daily and weekly hours are associated with an increased risk of crashes and with the chronic health conditions associated with lack of sleep. These changes will affect only the small minority of drivers who regularly work the longer hours.” The FMCSA is constantly reviewing its rules to improve safety, but without compliance on the part of drivers, the risks remain high, and truck accidents remain a cause of catastrophic highway crashes.

Accidental Death

Wrongful Death Claims Under old English law where a person’s death was caused by the fault of another person, the claim to recover money damages for the loss died with the victim, and the guilty party had no obligation to compensate the survivors. In every state, including Maine (and also under modern law in England) the state legislature has enacted laws modifying the old rule and permitting recovery by the survivors in cases where an accidental death is the result of the negligent, careless, intentional or reckless acts of another person. Most states allow recovery in whatever amount a jury may determine to be fair, but some states, including Maine, place a limit on the amount which the guilty party must pay for the loss of comfort and companionship suffered by the surviving family members. In Maine this amount has been raised from time to time and is currently set at $500,000. There is no limit on recovery for so-called pecuniary losses such as funeral and medical expenses, future loss of financial support and other financial losses due to the death of the victim. You may be surprised to learn that the surviving spouse is not entitled to the entire amount of whatever is recovered in a wrongful death action unless there are no surviving minor children. Although the law covering wrongful death cases is not exceptionally complex, these cases do involve some unique considerations, so family members who have lost a loved one will be best served by retaining a law firm with experience in this field.