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What You Should Expect from an Ohio Workers’ Compensation Claim

Posted on Wednesday, April 19th, 2017 at 3:16 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

Workers’ compensation can include compensation for medical treatment, lost wages, and permanent impairment that occurs during employment. The Ohio Bureau of Workers’ Compensation (BWC) has several steps necessary to file a claim. The steps will be similar for states other than Ohio, but guidelines may vary and information should be verified with each state’s BWC.

If the injury or illness is severe, seeking medical attention should be the primary objective; however, as treatment proceeds it will be important to keep record of all medical bills for filing purposes.

How To File an Ohio Workers’ Compensation Claim

The Ohio Bureau of Workers’ Compensation has strict guidelines, which must be met to qualify for Workers’ compensation. Failure to meet the guidelines may result in a denial.

First, an employee must report the injury to the employer as soon as possible. After the injury is reported a First Report of an Injury, Occupational Disease, or Death (FROI) will need to be completed. The FROI can be completed by the employer, employee, or by the employee with the assistance of their medical practitioner. Claims can be filed online with the BWC.

Submitting an FROI has strict guidelines that must be met. A claim must be filed with the BWC within two years of the date of the injury. If filing for an occupational disease, the FROI must be filed within two years of the date one becomes permanently disabled, or within six months of the date a medical practitioner diagnosed the illness.

Within twenty-eight days of submitting the FROI form, the BWC will notify the employee if their claim has been approved or denied.

Why Was My Workers’ Compensation Claim Denied?

Workers’ compensation claims can be denied for a variety of reasons, and the specific reason an individual case was denied will be listed on the BWC’s decision, which is released within 28 days of filing. Lack of information, employer denial, or severity of the claim is the most common reasons a claim is denied.

First, claims are denied for a lack of information, failure to file on time, or failure to report. One of the simplest ways to help ensure a claim does not lack information is to keep records of medical expenses and doctor’s diagnoses throughout the process.

Another common reason a claim is denied is because an employer may deny that an employee’s injury occurred at work or that the injury is not a result of the workplace accident. Employers often deny claims because successful claims increase their Workers’ compensation insurance premiums, thus defeating the claim will not raise their rates.

Finally, claims may be denied because the injury was not severe enough to be covered by Workers’ compensation. Regardless of the reason a claim was denied, the all claims may be appealed.

How Appeals Work in the Ohio Workers’ Compensation System

After the claim is denied, an employee has 14 days to appeal. To file an appeal a form will need to be completed through the Ohio Industrial Commission. The forms can be filled out online or printed and mailed. Once the appeal request is received, several steps will follow.

First, a district level hearing will take place within 45 days of the initial appeal. Before the hearing, witness affidavits, depositions, and other evidence may be submitted to the Ohio Industrial Commission’s office for review. In addition, the Ohio Industrial Commission may require an independent medical examination. The examination is mandatory, but the results will be made available to both parties. After hearing the evidence, the presiding officer will make a written decision and mail it to both parties within seven days.

After the district level hearing, either party can appeal for a staff level hearing, which will take place within 45 days of the initial hearing. Usually, no new evidence is permitted, but an officer reviews the information and issues a written opinion to both parties.

The first two levels of appeal are guaranteed, but if the parties are still unhappy they may appeal for a commission level hearing. After reviewing the information from the staff hearing, the Ohio Industrial Commission will either grant or deny an appeal. If the appeal is granted a hearing will be conducted within 45 days and a written decision will be mailed within seven days. The Ohio Industrial Commission’s decision may be appealed to the state courts of Ohio. If the decision is denied an appeal can be made to the state courts of Ohio within 60 days.

Why an Attorney Should Help You Get Workers’ Compensation

The appeal process can be long, and it may be in the employee’s best interest to get help from an attorney to receive the benefits they deserve. Due to the multitude of reasons a claim may be denied – failure to file on time, employer dispute – an appeal may be able to provide an opportunity to add additional evidence in support of the claim.

Additional information such as surveillance videos, co-workers testimony, medical history, and doctor testimony may be able to provide the necessary information on appeal. However, it is possible that evidence that should have been introduced originally will not be allowed to be introduced for the first time on appeal. The best way to make sure you don’t have to appeal is to make sure all your evidence and best legal arguments get presented immediately, and continually re-raised throughout the process. Getting an attorney is the best way to make sure you don’t miss anything.

Seeking legal council is advised for an appeals process because deadlines are short and strict, the process can be long, and the Ohio Industrial Commission will expect an appeal to properly follow the rules of evidence. Additionally, an attorney can help decide if an appeal is the best option based on the specific reason an individual case was denied.

If you’ve been injured in an Ohio Work Accident, don’t go it alone. Call Lawrence & Associates for a free consultation today. We’re Working Hard for the Working Class, and we want to help you!

Can I Be Liable for my Spouse’s Debt?

Posted on Monday, April 10th, 2017 at 5:04 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Linda Long, a Juris Doctor student at the NKU Salmon P. Chase College of Law.

It’s interesting, there is an older statute still on the books that deals with a husband’s liability to a wife specifically. I’ll include it because I think that it is interesting. Under KRS 404.040 “Liability of Husband for Wife’s debts,” the statute provides: “The husband shall not be liable for any debt or responsibility of the wife contracted or incurred before or after marriage, except to the amount or value of the value of the property he received from or by her by the marriage; but he shall be liable for necessaries furnished to her after marriage.”

This statute is interesting because it is an example of just how far the law in Kentucky and the country has come. We have been brought a long way from gendered laws like these to more non-bias ones, but liability for a spouse’s debt is still an issue. The following is an explanation for the age-old question: Am I liable for my spouse’s debt?

The short answer is- it depends. I know, typical law school answer, but it is appropriate here. The biggest question is whether your state follows common law or community property rules.

Does Your State Follow Common Law, Community Property, or Equitable Division Rules?

As a rule, in common law states one spouse is not liable for the other’s debt. At common law, a spouse may be liable for his or her spouse’s debt depending on:

  • Where you live;
  • Whether the debt is a joint debt;
  • Whether you are a cosigner; and
  • Whether the debt was assigned to you in a divorce proceeding.

Generally, if you live in a common-law state, liability for credit card debts is triggered if the debt was in your name. Typically, if one spouse has put a line of credit or a credit card in his or her name, then you are on the hook as you would be if you two were not married.

However, if the couple lives in a community property state, the analysis of who is liable for debt go to the next step. In community property states, liability can be assigned to one spouse or both depending on the circumstances. For example, factors that are considered in deciding who owes debt are:

  • Whether the debt was incurred during the marriage;
  • Whether the debt benefitted both members of the marriage; and
  • Whether the creditor sues the non-signing spouse who loses the lawsuit and has a judgment against him or her.

So, to put that in perspective, if the debt was acquired during marriage, both spouses are generally liable for the debt incurred. That makes logical sense because at divorce in a community property state, anything acquired during the marriage is divided equally at divorce. It follows that if the wife incurs debt after marrying the husband, then both spouses are responsible for the debt. Just as if the wife had a book deal that earned her 5 million dollars, and she got that after the marriage, in community property states, the husband has a right to half of the profits from the book deal. Same logic, same rule, same outcome.

The second above listed prong kind of goes hand in hand with the first one. If both spouses are benefitted from the debt, then they both may be liable for repaying it. It is like what counts as gross income in the tax world. Per the tax rules, an increase in wealth is gross income and must be claimed for tax purposes. Simply put, if a person gains he or she is responsible. For example, if a husband takes out a loan for a home the wife can be presumed to have benefitted from the debt that the husband incurred. In community property states, the wife would be responsible for the loan that was in the husband’s name.

Thirdly, if the wife takes out a loan, and the creditor decides to sue both the wife and the husband to collect the debt, then, in community property states, the judgment may be enforced against the husband as well.

Community property states include: Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Neither Kentucky nor Ohio are community property states.

Kentucky and Ohio are both equitable division states, and are subject to different rules. In equitable distribution states, it is usually the joint responsibility of both spouses to pay off the debt even if one spouse did not incur it. This is the rule if both spouses are the co-signers on the loan or debt.

How Do Prenuptial and Antenuptial Agreements Affect Spousal Debt?

One spouse can agree before or after marriage to pay the debt of the other. Two spouses can enter a prenuptial agreement that creates an obligation on one spouse to pay the debts of the other even if they are not obligated by law to pay the debt. The same is true for antenuptial agreements. However, both prenuptial and antenuptial agreements are only binding to the married or divorced parties. Neither agreement is binding to third parties. Therefore, a creditor does not have to defer to the agreement of the spouses. Meaning, if the loan is taken out in the husband’s name, and the wife contracted to pay his debt, the creditor still can enforce the loan against the husband.

The following steps should be taken if your spouse is sued or is about to be sued for a debt:

  • Consult with an attorney to learn your state’s laws;
  • Analyze the type of debt (because one spouse may be liable depending on the type of debt; i.e. medical debts), and;
  • Avoid joint financial accounts.

It is advisable to take care to protect your credit after spousal debt is resolved. This takes a lot of work after resolving the issues, but worth it! Swimming in debt is hard, and it can take a skilled swimmer to stay afloat. Most legal professionals are equipped with the skills that can help keep you from drowning.

If you have any other questions about spousal debt, or if you would like a free consultation with an attorney about how a Chapter 7 or Chapter 13 bankruptcy can resolve spousal debt, call us today.  We’re Working Hard for the Working Class, and we want to help you!

Credit Fraud And The Fair Credit Reporting Act

Posted on Wednesday, March 29th, 2017 at 2:15 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Jessie Smith, a law student from the University of Kentucky.

An unfortunate reality of modern living involves the prevalence of credit scams and creditor harassment. Those who have fallen victim to a credit scam, or suspect they have fallen victim to such a scam, are oftentimes left wondering what, if any, courses of action are available to unwind the inevitable fraudulent transactions that follow suit. The goal of this blog post is to identify some of the most common types of credit scams that exist today, illuminate the legal issues that surround these scams, and discuss some of the remedies that are available to those who have fallen victim to these schemes. To that end, an examination of the most widespread scams that pervade the current legal landscape will first be had.

What Are Some Of The Most Common Types Of Credit Scams?

Whether by simple convenience or sheer malice, the most prominent form of credit scam involves the utilization of consumers’ credit card information. Indeed, according to one source, forty percent of all financial fraud is associated with credit cards. The question that becomes immediately apparent is: how are fraudsters able to obtain one’s credit card information? The answer varies from the inanely basic to the technologically advanced.

For example, one method used by credit card scammers to obtain credit card information is known as “skimming.” Skimming involves placing a device, referred to as a “skimmer,” over swiping mechanisms in credit card readers in stores, ATMs, and gas pumps. When a customer swipes their card through the card reader, the skimmer essentially copies the card’s information. Later, that information is gathered by the criminal and used to make illegitimate transactions under the cardholder’s name.

A method related to, yet distinct from, skimming is a process called “digital skimming,” by which a fraudster utilizes a technology known as “radio-frequency identification” to obtain a victim’s credit card information remotely. This process is, at its most basic, the modern equivalent of pickpocketing. The scammer may use something as mundane and unthreatening as a smartphone, equipped with a particular app, which, when equipped, permits the theft of credit card information from distances of as much as six inches away.

A less advanced, yet common, method of stealing cardholders’ information is mail fraud. A credit card fraudster will look through one’s mail, searching for credit card statements that contain the pertinent information needed to perpetrate the fraud, or, worse, a pre-approved credit card offer. The forms provided with pre-approved offers are filled out and mailed back to the credit card company, and the criminal later steals the newly issued credit card.

Yet another method of effecting credit fraud is a modern phenomenon that involves a low-tech, albeit clever, scheme. A fraudster will call an unsuspecting victim, and, whilst recording the conversation, ask the victim a question with the intent of having the victim verbally utter the word “yes” (often, the question posed will be something like “Can you hear me?”). This recording is later edited and saved so that the scammer can use the recorded statement (i.e., “yes”) to authorize credit transactions in the victim’s name.

Each of the aforementioned methods of credit fraud have one common thread running through each of them: they will, at some point in time, result in negative information being provided to credit reporting companies. Although these companies do not knowingly, nor willingly, participate in these frauds, some of the most damaging consequences of identity theft and credit fraud concern one’s credit report, and, thus, the credit reporting companies that prepare such reports. Luckily for those that fall victim to credit fraud, the Fair Credit Reporting Act (hereinafter “FCRA”) provides a plethora of rights that one may exercise when faced with credit fraud.

What Remedies Are Available To Victims Of Credit Scams?

Although credit scams are clearly a regrettable fact of modern living, there are a number of steps a victim of credit fraud can take to seek some amount of redress for their economic injuries. Some of the options available to mitigate the damage incurred by credit fraud are provided by the Fair Credit Reporting Act (hereinafter “FCRA”). The rights afforded to victims of credit fraud under the FCRA are outlined below:

1. Place a “Fraud Alert” on Your Credit Report
Once one suspects or confirms that they have fallen victim to credit fraud, they have the right to ask one of the three major credit reporting companies (that is, Equifax, Experian, or TransUnion) to place a “fraud alert” on their credit report. A fraud alert provides creditors with notice that one may have had their identity stolen, and makes it difficult for identity thieves to obtain credit in one’s name. When a fraud alert is present on one’s credit report, creditors must verify one’s identity before issuing credit, which, in many instances, will result in a phone call being placed to one before a transaction is undergone. A fraud alert will remain on one’s credit report for ninety days; however, fraud alerts can be renewed at the end of this period.

2. Place an “Extended Alert” on Your Credit Report
An alternative to renewing a “fraud alert” every ninety days is to place an “extended alert” on one’s credit report. An extended alert remains active for seven years. However, in order to place an extended alert on one’s credit report, one will need to provide an “identity theft report” to the credit reporting company. An identity theft report is, in essence, a police report that has been filed with a law enforcement agency, whether said agency be local, state, or federal in nature.

3. Acquire Documents Related to the Credit Fraud
In addition to the aforementioned rights, victims of credit fraud have the right to obtain copies of credit card applications or other records pertaining to the transactions that have occurred or accounts that have been opened due to the fraud. However, it is important to note that a request for such documentation must be made in writing, and the businesses or creditors involved may ask for a police report, an affidavit, and proof of identity before releasing the records.

4. Gather Information from Debt Collectors, if any are Involved
If a debt collector contacts a victim of credit fraud in an attempt to collect on a debt fraudulently incurred, said victim has the right to obtain information from the debt collector, including the name of the creditor and amount of debt incurred.

5. Ask Credit Reporting Companies to Block Information Resulting from Credit Fraud
In the most unfortunate of circumstances, a victim of credit fraud may find themselves in a position of owing debt that they did not authorize nor incur. When this happens, victims of credit scams have the right to ask credit reporting companies to block information from their credit report that is related to the fraud or identity theft. In order to do so, one must provide the credit reporting company with proof of their identity, as well as an identity theft report.

6. Prevent Creditors from Reporting Negative Information to Credit Reporting Companies
A victim of credit fraud has the right to ask businesses and creditors not to report information to credit reporting agencies, as well. Where a victim of credit fraud believes that information possessed by businesses or creditors is the result of identity theft, they may ask the creditor to refrain from reporting said information to credit reporting agencies, assuming a copy of an identity theft report, as well as identification of the information the victim wishes not to be reported, is provided. In addition, such a request must be sent to an address provided by the business in question.

In sum, it is apparent that, in today’s world, credit fraud is an all-too-common problem that many will face at one point or another. Those saddled with the burden of rectifying credit fraud perpetrated against them face an uphill battle. However, some amount of comfort may be had in knowing that Congress, through passage of the FCRA, has provided those affected by credit fraud with rights that will diminish the damage done to victims’ financial reputation.

Do you need to file bankruptcy as a result of credit card fraud? Don’t go it alone. Lawrence & Associates is working hard for the working class, and we want to help you!

When Can an Ohio Police Officer Be Held Liable for Hurting Someone in a Car Accident?

Posted on Tuesday, March 21st, 2017 at 11:56 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

The Ohio Supreme Court held that when police officers are performing their duty, they can be held civilly liable for damages to a 3rd party if their conduct is “wanton or reckless” in nature. By adopting this standard, the court rejected the no-proximate cause test applied in several lower courts throughout Ohio. The no-proximate cause test required officers to act in an “extreme or outrageous” manner to be held civilly liable for damages.

Legally, the different standard is significant. Recklessness is legally defined as a conscious disregard of a known risk, whereas extreme and outrageous is legally defined as grievous and grossly offensive to an average person. By adopting the lower standard, the Ohio Supreme Court has made it easier to hold law enforcement accountable for damages, because the plaintiff, the one bringing a suit, only has to prove a police officer’s conduct disregarded a known risk rather than acted grossly offensive to an average person within the circumstances. However, despite the lower standard, the Ohio Supreme Court held the police officers in the current case did not act recklessly and were entitled to qualified immunity. The facts and reasoning of the case are as follows.

What Caused Ohio’s Supreme Court to Decide Whether Cops Could Be Liable for Injuring Others?

After committing a robbery, Andrew Barnhart was involved in a high-speed chase with 5 officers from the Miami Township Police Department and the Montgomery County Sheriff’s Department. During the chase, Mr. Barnhart’s vehicle collided head-on with Pamela Argabrite. The accident killed Mr. Barnhart, but caused series injury to Ms. Argabrite. Following the accident, Ms. Argabrite brought suit against the 5 officers claiming their negligence in the chase led to the head-on collision and her injuries.

The Ohio appellate courts faced two questions. First, were the police officers entitled to qualified immunity, therefore, could not be sued for actions that occurred in performance of their duties? Second, if the officers did not have qualified immunity, were the officers the proximate cause, casually linked, of the accident?

The appellate court did not answer the first question, rather decided the officers were not the proximate cause of the injury. The appellate court held police officers that pursued a suspect are not the proximate cause of injury to a third party unless the officer’s conduct was “extreme and outrageous.”

The Ohio Supreme Court’s Analysis:

Public officials, including police officers, are immune from civil liability unless their actions, or failure to act, were with a “malicious purpose, in bad faith, or in a wanton or reckless manner.” The Ohio Supreme Court found that when the lower courts applied the no-proximate cause test they had used a higher standard of “extreme and outrageous” to evaluate the officer’s conduct. Therefore, the Ohio Supreme Court reviewed the case material de nova, as if for the first time, applying the lower standard to the police officers behavior.

In reviewing the facts, the Ohio Supreme Court found the police officers had broken protocol and procedure in pursuing the high-speed chase. However, breeching departmental procedures were not conclusive evidence to establish the officers acted in a wanton or reckless manner. Instead, it was necessary to demonstrate the officers had acted with a “malicious purpose, in bad faith, or in a wanton or reckless manner” during the high-speed chase. Every officer was found to have behaved reasonably in performing his or her duties during the high-speed chase.

In determining if breeching departmental procedure was reckless, the court noted police officers, unlike other public officials, are required to act and perform their duties in violent and dangerously situations. Additionally, the court noted that under Ohio law police officers have a unique statutory duty that requires them to arrest and detain criminal suspects. Failure to comply with the statute can result in police officers facing criminal charges.

Although for different reasons, the Ohio Supreme Court affirmed the appellate courts ruling. This case was decided as a matter of law, meaning the evidence was never presented to a jury.

Justice Lanzinger Concurrence
Agreeing in judgment only, Justice Lanzinger argued the inquiry into the level of the public officials actions was futile, because the court only needed to determine if the public official’s actions were above “mere negligence.” If a public official’s actions were beyond negligence, more than carless, then sovereign immunity does not apply. In this case, Justice Lanzinger agrees that the officer’s conduct and failure to follow protocol was merely negligent.

Justice Kennedy’s Concurrence
Justice Kennedy concurred in judgment only, because she felt that the no-proximate cause test should have been applied and was not inconsistent with the qualified immunity standard. Justice Kennedy reasoned that the Ohio General Assembly amended the qualified immunity statute several times, and in doing so lower courts began to apply the no-proximate cause test. Since the application of the no-proximate cause test, the General Assembly has taken no action to correct or change the law. Therefore, the court should leave any changes to the legislature and the no-proximate cause standard should govern police officers conduct in pursuit, but all other civil liability for police officers would be governed by the qualified immunity standard.

Justice Pfiefer’s Dissent
In his dissenting opinion, Justice Pfiefer argued that there were enough facts to allow the case to be heard before a jury. Justice Pfiefer, suggested that there were other ways the police officers could have brought Mr. Barnhart to justice without engaging in a high-speed chase, therefore, whether the police officers had acted recklessly should have been a decision for a jury.

Justice O’Neill Concurring in part and Dissenting in part
Justice O’Neill agreed with the court in their application of the law, that officers’ are immune from liability unless they “act maliciously, in bad faith, or in a wanton or reckless manner.” However, Justice O’Neill disagrees with the courts decision as an issue of law and believes the case should have been tried before a jury.

The Ohio Supreme Court’s ruling makes it easier for the average individual to recover if injured by a police officer performing their duties. Lower courts will now provide relief for plaintiffs who are able to prove a police officer’s conduct “disregarded a known risk,” rather than having to prove the officer’s conduct was “extreme and outrageous.” However, by the Court granting immunity in this case, the Court is signally a police officer will need to disregard a specific known risk, for example, if an officer does X it may result in injury Y, not merely a general risk, such as not following protocol may injury someone. The difference between the two scenarios can be very fact specific, and it may be best to consult an attorney to determine if your injury will meet Ohio’s new standard.

Have you been injured in a car wreck in Ohio? Even if it is a result of a police chase, you may still have a right to recover for your injuries. Give Lawrence & Associates a call and speak to one of our attorneys for a free consultation. We are Working Hard for the Working Class, and we want to help you!

Class Actions: How They Are Created, Who Belongs in One, and Why Class Actions Exist

Posted on Monday, March 13th, 2017 at 1:04 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Linda Long, a Juris Doctor student at the NKU Salmon P. Chase College of Law.

“Well, I want to sue!” Slow down, buddy. Ease up on the reigns a little, and let’s create a game plan, shall we? What is the injury? Who was injured? Is this even the proper remedy to seek? These are all questions that need to be asked before any litigation is filed.

Although most litigation is based on a single plaintiff with particular injuries, there are times when another avenue to seek justice or to make the victim whole is more effective. I’m talking, of course, about a class action lawsuit. This blog is about what a class action is (as defined by Federal Rule of Civil Procedure 23) and when it is appropriate to form a class to file a lawsuit as a single plaintiff.

If there is a group of people that were hurt in a substantially similar way, then a class action may be the appropriate avenue of relief.

What is a Class Action?

When a group of similarly-situated people are affected by a similar claim, to promote efficiency in the court system, the group files a class action. By definition, a class action is: “a legal procedure that allows many people with similar grievances to join together and file a lawsuit. The lawsuit is filed by a lead plaintiff (or lead plaintiffs) on behalf of a larger group (the “class”) against a company/ companies and/ or individuals (the defendant/defendants).” Simply put, when a group of individuals have the same problem, to promote the efficiency of the court, that group sues as a single plaintiff.

The most common type of class action that a plaintiff brings is one allowed under Federal Rule of Civil Procedure 23 (b) (3). Simply put, a court will allow a class action to proceed if the particular questions of either law or fact are common to all members of the class. Meaning, if Jennifer, Linda, and Jedidiah have Toyota Camrys, and those Toyota Camrys have defective brakes and all three women are injured in the same way, it is possible the group injured by the car can form a class and sue the manufacturer of the car.

As we dive deeper into Rule 23 (b) (3) we will discover that a class action requires a true group effort. The class must have a central problem that is the dominate one, and each member of the class must share that same problem. For example, if Jennifer and Jedidiah’s Toyota Camrys had defective brakes, and Linda’s Toyota Camry had faulty air bags, Rule 23 (b) (3) prohibits Linda from being a part of the same class as Jennifer and Jedidiah. This is because Linda was not harmed in the same way that the other members of the class were; therefore, Linda’s claim is different, and won’t be properly resolved with a class action.

The last chunk of Rule 23 (b) (3) requires a class action to be a “superior” remedy to other methods of making a plaintiff whole. A class action is neither proper, nor permitted, if there is a more efficient way for a court to settle a controversy. If Mark and Jessie are both sick because they ate bad Applebee’s on date night, that does not mean that Mark and Jessie are automatically a part of a class. A more proper remedy for Mark and Jessie would likely fall outside of the scope of Rule 23 (b) (3) and therefore outside requirements of forming a class action. Their claim is outside of the permitted ways to use the option for a class action because this is such a particular harm. There is no evidence that this harm will be done again to patrons of Applebee’s, and there is no evidence that the restaurant has a pattern of making its customers sick. Further, Mark and Jessie have a remedy they can each pursue that is superior to the class action. Each of them can file for damages (or other appropriate claims) and likely be made whole that way. In Mark and Jessie’s case, bringing a class action is an inefficient use of the court’s time and resources.

Fen-Phen: The Classic Class Action Suit

For example, if a group of people all take a certain diet drug, and that diet drug turns out to be harmful in some way (for example if that drug causes seizures or even death) then the group of affected individuals sue. That was the case in the famous (or infamous) Fen-Phen litigation. The horror story of Fen-Phen is told as a cult classic to law students since its decision. However awful the facts here are, the Fen-Phen case is a fabulous example of why having the ability to file a class action is so important.

Fen-Phen is a case about a diet drug that was in the open market for a long time. This drug was found to be the cause of many consumers’ heart problems. The problems got so bad, that some consumers ended up with permanent heart conditions, and some tragically died after developing a heart condition after using Fen-Phen. So, a class action suit resulted. Members of the affected class, who were similarly situated, filed a suit for relief.

A potential benefit of filing as a class is that it shows strength for the plaintiff’s case. Class actions are filed in tort cases. A motivation in tort decisions is to keep someone or a corporation from doing something. In cases of consumers and drug producers, when multiple consumers are harmed by the producer’s product, and a class action is filed, the message that is sent is clearer. That message is that the drug producer needs to be mindful that its actions can, and have, hurt the consumer.

When to File a Class Action Lawsuit

A class action lawsuit can be filed when at least 40 people are similarly situated. A representative must be declared. Keep in mind that a common set of facts have to exist among the members of the class. After this is complete the class must be certified. When the class is a certified class, then a class action can be filed.

It is often said that when something is right, you will know it. That same logic applies to when to file a class action. Well, basically. Remember that Rule 23 certainly has requirements, but those requirements are arguably too vague to tell anyone what elements must be met before you are able to file a class action. Here is a clearer way to determine when to file a class action that is compatible with Rule 23 (b) (3):

The court finds that the questions of law or facts common to class members predominate over any questions affecting only individual members, and that a class is superior to other available methods for fairly and efficiently adjudicating the controversy.

That all sounds very legal and technical, but let’s break that rule down into clear elements. To put it simply, Rule 23 (b) (3) of the Federal Rules of Civil Procedure requires, before a lawsuit can be filed, that:

  1. Legal or factual claim are shared by each member of the class asserting those claims;
  2. The claims asserted are only on behalf of the class, individual grievances are not permitted to be brought up in a class action suit; and
  3. A class action is the best remedy the class has at law.

As a Side Note, and for a Smile

You deserve a break from black and white words, so here is a little cartoon about how class actions work under Federal Rule of Civil Procedure Rule 23(b) (3):

I found videos like these helpful during my first year of law school, and having something a little lighter to see was, oh so, appreciated! Hey, class actions are very complex and convoluted. The use of class actions is certainly limited to a narrow amount of cases, as we have seen. The likelihood of getting into court with a class action claim is slim to none. However, it is such a relief that the ability to file a class action suit exists. Typically, there is strength in numbers. When I say that, I mean that when there are multiple plaintiffs, the claim that is being asserted is more believable. Because lots of individuals are able to come together and assert that they have been harmed, that class is able to stand up to large companies, and tell them that “enough is enough.” That was the situation in the Fen-Phen case. A class stood up to the large pharmaceutical company that is Fen-Phen, and because the numbers existed, consumers were able to influence the practices of a company. This made the products safer and allowed those who were harmed to hold the company responsible and get help.

So, it is very important that our justice system allows for such a remedy. Without class actions, it is very likely that we would all live in a more dangerous world where companies could take advantage of the little guy. We can’t have that!

Would you like to enter a class action, but want a law firm that provides better customer service for a more personal touch? Give us a call and schedule a free consultation! Lawrence & Associates is Working Hard for the Working Class, and we want to help you.

Does My Car’s Manufacturer Have a Duty to Warn Me About Defects After I Buy the Car?

Posted on Tuesday, March 7th, 2017 at 9:47 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Mark Ashley Hatfield, a Juris Doctor student at the University of Kentucky College of Law.

It is hard to deny that our lives would be much more difficult without vehicles. Our commute to work, our trips to the grocery store, and every task in between would become incredibly more difficult. Fortunately for us, we live in a world that provides us with safe, fast, and efficient transportation, so those everyday tasks are accomplished much more easily than they would be without a motor vehicle. But what happens when our transportation fails to live up to our expectations?

Imagine that you are involved in a crash and the protection you expected to receive from your automobile does not withstand the impact of the crash? Even worse, imagine that part of your car malfunctions in a way that increases the harm suffered by you and those in your vehicle. What happens then? Unfortunately, Ross and Brenda Linert had to deal with this type of experience. When they took the car manufacturer to court, they were unsuccessful in obtaining relief.

Why Did Ohio’s Courts Discuss an Automobile Manufacturer’s Duty to Warn?

In November of 2007, Ross Linert, a long-time police officer, was traveling at approximately 35 miles per hour (the posted speed limit) while on patrol in his department-issued 2005 Crown Victoria Police Interceptor (CVPI), manufactured by Ford, when he was struck from behind. The car that struck Mr. Linert, a Cadillac Deville, was being driven by a drunk driver and was traveling at speeds estimated between 90 and 110 miles per hour. Mr. Linert suffered severe, painful burns to nearly a third of his body, and is now disabled.

Mr. Linert and his wife, Brenda, initially filed suit against the drunk driver of the Cadillac Deville, but when that defendant asserted that Ford’s flawed product caused Mr. Linert’s severe injuries, the Linerts amended their complaint to add claims against Ford. The Linerts ultimately dismissed their claims against the drunk driver on the day of trial, so the key complaint at issue here is the Linerts’ failure-to-warn claim stating that, “if Ford had warned customers of risks associated with the placement of the vehicle’s fuel tank and the lack of a fire-suppression system, [Mr. Linert] would have survived his accident with minor injuries.”

Ohio law, as does the law in most states, speaks directly to the issue of a manufacturer’s duty to warn consumers of potential dangers posed by their products. In Ohio, unless the danger posed is generally known and recognizable by a consumer, manufacturers have the “duty to warn of dangers known to the manufacturer at the time of sale of the product” and “a duty to warn of dangers that were not obvious at the time of sale but became known to the manufacturer after the product was sold to a consumer.” These duties are codified under Ohio law, and the second one speaks specifically to the post-market duty to warn argument that the Linerts vehemently put forth. Unfortunately, as stated earlier, the Linerts ultimately lost this legal battle. The procedural background of the case is best summed up in the following paragraph.

The trial court ruled in favor of Ford and in so doing, went against the wishes of the Linerts by not instructing the jury to consider Ford’s post-market duty to warn. On appeal, the appellate court sided with the Linerts by focusing on the Linerts’ contentions that such an instruction was necessary “so that the jury would not ignore Ford’s post-marketing duty of the risk of fire in the CVPI and that a reasonable manufacturer would have given a warning of that risk to consumers, including to the police community.” The primary reason the appellate court ruled this was based on the abundance of evidence that had been introduced by the Linerts but seemingly ignored by the trial court. The Linerts had presented evidence that suggested Ford knew of several accidents similar to Mr. Linerts’ accident that were made worse by the poor placement of the CVPI’s fuel tank; that Ford knew of the risk of fires because of the defective designs, and; that Ford had taken on projects to improve their product. Still, in light of all of this, Ford gave no warning to consumers. This evidence caused the appellate court to reverse the trial court’s ruling and hold that the trial court’s failure to instruct the jury on this claim was a clear error. Basically meaning the jury should have been presented with this question of a post-market duty to warn, and should have been allowed to consider the evidence to analyze whether or not Ford was justified in failing to warn its consumers of the potential dangers.

Why Did the Ohio Supreme Court Allow Ford to Avoid Warning Consumers about Defects in Its Cars?

Outside of the lone dissenting opinion, the Supreme Court of Ohio did not share the same view as the appellate court. Instead, the Supreme Court looked to a different statute in Ohio Law (R.C. 2307.76) and determined that the Linerts’ failed to meet their burden of establishing this claim and the trial court was correct to not instruct the jury on the post-market duty to warn claim. Ford argued, and the Supreme Court sided with the notion that under this statute, “a ‘risk’ that triggers a post-marketing duty to warn is not merely any “known danger,” but it must be a risk about which a reasonable manufacturer would warn in light of the likelihood and likely seriousness of the harm.” Additionally, “a product manufacturer’s implementation of a post-marketing product improvement does not trigger a post-marketing duty to warn.”

The Supreme Court used this argument to frame its analysis and held that the Linerts’ claims failed for two, somewhat muddled, reasons. First, the Court essentially stated that their claim failed because Ford knew of the dangers prior to the sale of the product so the post-market failure to warn claim is inapplicable because the focus must be on the knowledge a manufacturer acquires after the sale of the product. Although Ford did receive information post-sale, the Court ruled that its extensive knowledge of the dangers pre-sale was addressed and rejected by the jury in the original failure to warn at the time of sale claim. Second, the Linerts’ claim failed because, while they succeeded in establishing a known “risk,” they failed to establish the likelihood of the risk. Essentially meaning that there would have been no way for a jury to determine if a reasonable manufacturer in the same situation would have warned consumers of the potential danger.

While the majority opinion governs the law in this area, there were two Judges who dissented and would favor the Linerts’ claim for an instruction on the post-market duty to warn. The dissenting opinion believed the evidence to be substantial enough to warrant the instruction for jury consideration and perhaps many readers reviewing the case would feel the same way; I certainly did. Still, the majority, in what reads as a hair-splitting approach, decided that the evidence was not sufficient enough to warrant such an instruction, and Ford was ultimately relieved of having to provide any type of warning to its consumers in this case even though there were known dangers present.

Product liability cases like Linert v. Ford are difficult and require extensive legal experience. If you believe you have a products liability claim related to an automobile accident, please call one of our attorneys for a free consultation. Lawrence & Associates is Working Hard for the Working Class, and we want to help you!

How Do I Know If I Have A Successful Slip and Fall Injury Lawsuit?

Posted on Tuesday, February 28th, 2017 at 10:43 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Jessie Smith, a law student from the University of Kentucky.

Unfortunately, many people have suffered or will suffer from injuries sustained during a slip and fall incident, and are faced with the question of whether they have a successful suit to seek redress for their injuries. For many potential plaintiffs, finding the answer to this question involves legal principles that many may feel are too complicated, time consuming, or convoluted to pursue. The goal of this blog post is to clear the murky legal waters that many plaintiffs wish to avoid, and shine light on whether he or she may have a successful slip and fall lawsuit. In order to do so, Martin v. Mekanhart Corp., an opinion rendered by the Kentucky Supreme Court, will be analyzed and discussed.

What are the Facts Surrounding the Plaintiff’s Slip and Fall in Martin v. Mekanhart Corp.?

The plaintiff’s injuries in the Martin case were sustained due to a slip and fall that had occurred in a parking lot at a restaurant local to the area. The plaintiff and her sister-in-law had gone to the restaurant on the day in question to have dinner. Upon arrival, the plaintiff parked next to a vehicle that had secured a parking space closest to the entrance of the restaurant. After finishing dinner, the plaintiff exited the restaurant, and proceeded to walk toward her vehicle. By this time, the vehicle that had been parked closest to the entrance had left, and the plaintiff walked across the now vacant parking space to reach her vehicle. While walking across the empty space, the plaintiff “slipped on a slick substance and fell to the asphalt surface of the parking lot, injuring her back, both legs, and her right arm and hand.” Luckily for the plaintiff, two witnesses to the accident saw the fall occur from inside the restaurant, and went outside to assist her. The substance upon which the plaintiff slipped was later determined to have been oil.

What was the Procedural History and Outcome of the Plaintiff’s Case in Martin v. Mekanhart Corp.?

The plaintiff brought suit against the restaurant’s parent corporation, Mekanhart Corporation, and, after a jury trial, a verdict was entered in the plaintiff’s favor, totaling just over $79,000 in damages. On appeal, however, the Kentucky Court of Appeals vacated the judgment, holding that, under Cumberland College v. Gaines, the plaintiff had the burden of proving “not only that he or she was injured by an encounter with a foreign substance or other dangerous condition on the business premises,” but also that the defendant had caused the substance in question to be there or that the substance had been there for such a length of time prior to the occurrence of the accident that the defendant should have discovered and removed the substance, or, alternatively, should have given adequate warning of the substance’s presence.

This decision was appealed to the Kentucky Supreme Court, which observed that, subsequent to the decision by the Kentucky Court of Appeals in this case, the Kentucky Supreme Court had rendered a decision, Lanier v. Wal-Mart Stores, Inc., which overruled Cumberland College v. Gaines, the case upon which the Kentucky Court of Appeals had relied to find in favor of the defendant. Lanier, the Kentucky Supreme Court noted, requires the plaintiff to show that “he or she had an encounter with a foreign substance or other dangerous condition on the business premises,” that “the encounter was a substantial factor in causing the accident and the customer’s injuries,” and, finally, that “by reason of the presence of the substance or condition, the business premises were not in a reasonably safe condition for the use of business invitees.”

The principal distinction between Cumberland College’s standard of imposing liability and that found in Lanier is that the former requires the plaintiff to prove that the defendant had caused the existence of the “foreign substance” or “dangerous condition,” whereas the latter requires no such proof. Under Lanier, so long as the plaintiff shows that a “foreign substance or other dangerous condition” existed, that the existence of such substance was a “substantial factor” leading to the accident and accompanying injuries, and that the existence of the substance rendered the business premises to not be “reasonably safe,” the burden of proving the absence of negligence (i.e., the exercise of reasonable care) shifts to the defendant. If the defendant fails to meet this burden, liability will be imposed, regardless of whether the defendant caused the presence of the substance.

The Kentucky Supreme Court held that the plaintiff in the Mekanhart case had satisfied the Lanier test (in other words, the plaintiff had provided evidence sufficient to satisfy its burden, shifting the burden of proving the absence of negligence to the defendant). In fact, under the circumstances of this case, the Kentucky Supreme Court held that the plaintiff’s proffered evidence was enough to avoid a directed verdict even under the now-overruled Cumberland College standard. The court reasoned that since two witnesses inside the restaurant were able to observe the incident, a reasonable jury could have concluded that “[defendant’s] employees should [also] have observed and remedied the oil spot before the accident.” Therefore, the Kentucky Court of Appeal’s decision to vacate the judgment of the trial court was erroneous.

What’s the Big Picture? How Do I Know Whether I Have A Successful Slip and Fall Injury Lawsuit?

In sum, the answer to the question of whether one has a successful slip and fall injury lawsuit is completely reliant upon the test provided by the Lanier case. Under Lanier, it is no longer necessary to prove that the defendant caused the existence of a “foreign substance or other dangerous condition.” Instead, all an injured person needs to prove is that:

  1. He or she has encountered a “foreign substance or other dangerous condition” on a business-defendant’s premises;
  2. that this encounter constituted a “substantial factor” in causing the slip and fall and subsequent injuries, and;
  3. that, due to the existence of the substance or dangerous condition, the defendant’s business premises were rendered unreasonably unsafe.

If each of these elements are proven, the burden of proving the absence of negligence falls to the defendant. As such, if each of the aforementioned elements can be shown, one has a high chance of success in a personal injury slip and fall lawsuit.

Do you think you may have a personal injury claim for a slip and fall on business premises? Call us and schedule a free consultation with one of our attorneys. We are Working Hard for the Working Class, and we want to help you!

The Dayton, Ohio Red-Light Camera Dispute – What do I Need to Know?

Posted on Tuesday, February 21st, 2017 at 11:21 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Caitlin DiCrease, a law student from Ohio State University Moritz College of Law.

What is the law on Red-Light Cameras in Ohio?

Speeding and the running of red lights are two of the most common traffic violations across the United States. In order to combat these problems, many cities installed cameras on roadways and in intersections that would take photos or videos of vehicles committing traffic violations. Law enforcement would review the tapes and ticket the vehicles that were recorded doing something illegal, such as moving above the posted speed limit or running a stop-light. The tickets would then be mailed to the individual listed on the vehicle’s registration. These cameras have been challenged in several states – people believe they are inaccurate, not cost-effective, are intended only to catch more speeders and increase police revenues from tickets, and that they could even infringe upon constitutional rights. Those who favor the cameras say that they free up police officers’ time, so that they no longer need to spend as much time catching traffic violators and can focus on more serious crimes.

Red-light cameras, those posted at intersections to catch drivers who run red-lights, are currently permitted in twenty-one states. Ohio cities, including Dayton, had been using red-light cameras in the early 2000s to ticket drivers who committed traffic violations. People who had been ticked by the use of the red-light cameras brought lawsuits, claiming that the use of red-light cameras was unlawful. In 2008, the Ohio Supreme Court ruled that traffic camera use is legal, citing the “home-rule” authority of Ohio municipalities. Home-rule authority is the right of a local government to regulate actions within its boundaries in order to protect the public. This protection includes police activities, such as preventing car accidents by enforcing traffic laws and speed limits. As a result of this case, cities were told that they were permitted to install traffic cameras if they chose to do so. The court again ruled that the use of traffic cameras was legal in 2015.

However, in 2014, the Ohio General Assembly passed Senate Bill 342, which created new regulations for the use of traffic cameras across the state of Ohio. The regulation at the heart of the red-light camera issue is the requirement that a full-time police officer must be present where the traffic cameras are operating. In order to obey the new law, cities would have to station a police officer at each intersection where a red-light camera was being used. This would be very costly for cities and would make the red-light cameras much less valuable to law enforcement. As a result, many cities stopped their red-light camera programs. The 2014 law carries additional costly requirements, such as a lengthy study of traffic conditions at each site where a camera is to be installed prior to installation of the traffic camera.

What Happened in Dayton?

Dayton, Ohio had begun installing and using red-light cameras in 2002. There are more than three dozen traffic cameras in Dayton, which were used to catch both red-light and speed violations. When the Ohio General Assembly passed its 2014 law limiting the use of red-light cameras and requiring a police officer be present when the camera is in use, the city of Dayton filed a lawsuit against the state of Ohio.

Dayton argues that the law is unconstitutional because it violates the city’s home-rule authority. Dayton also argues that the 2014 law was created to impose impossibly harsh burdens on states that wanted to use traffic cameras so that the cities would stop using the cameras. The attorneys for the city believe that this law is an illegal use of the state’s power to regulate the city’s ability to control local policing and regulation of traffic laws. They also claim that the cost of completing traffic studies and paying police to physically monitor the areas where cameras are installed is too high, and defeats the purpose of the cameras. The city says that the 2014 law creates an effective ban on traffic cameras by making their use far too costly to be productive.

Meanwhile, the state of Ohio argues that the 2014 law was intended to create a uniform framework for automated traffic camera use across the state. The lawyers for Ohio claim that the Ohio Constitution only grants limited policing powers to cities under their home-rule authority, and that a uniform law governing the use of traffic cameras is beneficial to Ohio citizens. They say it would be confusing for drivers to have different traffic regulations in each city that they drive through. The state argues that, much like a city would be unable to use blue stop signs, it should not be able to use traffic cameras in a way that is different from other areas of the state.
The case is currently being considered by the Ohio Supreme Court. The court will rule on the Dayton case, as well as similar cases involving traffic cameras in the cities of Springfield and Toledo.

What will the Ohio Supreme Court do?

Hopefully, the court will rule on the whether or not the 2014 law is constitutional so that cities across the state know the standard requirements for traffic camera usage. While it is impossible to know exactly how the court will rule on the Dayton case, the Ohio Supreme Court has issued earlier rulings in 2008 and 2015 stating that the use of traffic cameras in Ohio is legal. It is possible that the court will find the 2014 law to be an unconstitutional infringement on a city’s home-rule authority and ability to implement programs for the safety of the public. However, the state’s arguments in favor of a statewide, uniform regulation for the use of traffic cameras may be convincing enough for the court to rule in favor of the city of Dayton.

Oral arguments in Dayton v. State were heard by the justices of the Ohio Supreme Court on January 10, 2017. The justices will take time to consider their decision and issue a ruling. Typically, the Ohio Supreme Court takes four to six months to release decisions, so a ruling on the Dayton red-light camera issue is likely to be published between May and July of 2017.

What do I Need to Know About Red-Light Camera Use in Ohio?

Currently, most cities in Ohio are not using red-light cameras because of the cost of having a police officer present at the camera locations while the cameras are in use. This means that you are unlikely to be ticketed by a traffic camera in the state of Ohio, however, there are some areas that are still using select red-light cameras. If you were recently ticketed by a red-light camera, a police officer was required to be physically present in the immediate area for the ticket to be valid. If the city has not complied with the 2014 requirements, you can challenge your ticket successfully.

However, if the Ohio Supreme Court strikes down the requirements, cities will again use traffic cameras to ticket people for speeding and running stop-lights. At that point, cities will likely add more traffic cameras to record traffic violations, and if you speed or run a light in view of one of these cameras, you will be ticketed. Drivers should keep an eye out for the court’s decision, and, as always, you should drive carefully and legally for the protection of yourself and those around you.

Does Homeowner’s Insurance Pay for ATV Accidents?

Posted on Monday, February 13th, 2017 at 12:21 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

In 2014, among all the states, Kentucky reported the 5th largest number of All Terrain Vehicles (ATV) accidents and Ohio reported the 12th largest. ATV accidents can cause severe physical damage and leave victims without insurance coverage. A standard homeowner’s insurance policy will cover ATV accidents, but only in certain locations.

If your homeowner’s insurance policy is going to cover an ATV accident, it depends on whether or not the accident occurred on your land and what caused the accident. Courts often use two elements within the homeowner’s insurance policy: “insured premise” and “arises out of the premise” to determine if coverage will be available.

Insurance Coverage for Accidents on Land You Own

According to Black’s Law Dictionary, the “insured premise,” as defined within insurance policies, typically refers to the parcel of land or structure and the surrounding area that is listed within an insurance policy. For homeowner’s insurance, the insured premise is the land specified in the deed.

Because homeowner’s insurance policies cover accidents that occur on the insured premise, as defined by the policy, an ATV accident on the premise will be covered under a homeowner’s insurance policy. However, you should check your homeowner’s insurance policy to see if the policy covers all accidents or accidents caused by “the insured” or the “insured family members.” At least one court determined this exception barred non-related individuals from being covered under by the homeowner’s insurance policy for an accident that occurred on the insured premise.

Insurance Coverage for Accidents On Land You Don’t Own

A standard homeowner’s insurance policy provides some liability coverage for the insured of the policy when an accident does not occur on the insured premise, however, there are exceptions. One exception comes from the phrase “arises out of the premise.”

When the injury occurs off the premise, the critical question for the courts becomes: what caused the accident? Both Kentucky and Ohio have ruled that the phrase “arises out of the premise” only relates to physical properties of the land. For example, if you are riding an ATV in your neighbor’s field – with permission – and you drive over a large hole, which causes the ATV to flip over resulting in personal injury, Ohio and Kentucky have ruled this accident “arises out of the premise” and your homeowner’s insurance could deny you coverage.

However, the same courts have ruled that the phrase “arises out on the premise” does not apply to accidents involving negligence. For example, if your neighbor and you are riding ATVs in your neighbor’s field and your neighbor drives too close and hits your ATV, which causes the ATV to flip over resulting in personal injury, Ohio and Kentucky have ruled this accident does not “arises out of the premise” and your homeowner’s insurance would provide coverage.

The courts distinguish the two incidents by defining the phrase “arises out on the premise” as requiring the land be “casually related to the occurrence.” Meaning, if the land is defective, and you do not own the land, then your homeowner’s insurance will not cover the accident.

Relief may still be available if the accident does “arises out on the premise,” but it would be the result of litigation against the landowner.

Do I need ATV Insurance in Case I Get Injured in an Accident?

In Ohio and Kentucky, ATV insurance is not required, but due to homeowner’s insurance’s limited scope of coverage, you may want to consult an insurance agent.

Some states require that operators have proof of ATV insurance on them at all times when driving on federal or public land. Ohio and Kentucky do not have this requirement, but neighboring states like Pennsylvania do. Additionally, Kentucky does not require the owner to register their ATV with the state, but Ohio does. Therefore, if traveling between states it is best to check the laws of that state to determine if licensing or insurance is required.

Additionally, homeowner’s insurance policies will not protect an ATV owner in the event of theft, but a separate ATV insurance policy will.

If you’ve been injured in an ATV accident and have more questions, don’t hesitate to give us a call. We’re Working Hard for the Working Class, and we want to help you. Get a free consultation today!

The Fair Debt Collection Practices Act and How it Protects You

Posted on Monday, February 6th, 2017 at 10:14 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Caitlin DiCrease, a law student from Ohio State University Moritz College of Law.

What is the Fair Debt Collection Practices Act?

The Fair Debt Collection Practices Act (“FDCPA” for short) is a federal law under 15 U.S.C. § 1692, created in 1977 to stop creditors from harassing individuals during the debt collection process. Its purpose is to protect consumers from being inappropriately threatened or intimidated by debt collectors. The FDCPA prohibits collections agencies from making threats, using deception, and engaging in other unfair or harassing actions, as well as requires that the collections agency act in a professional and reasonable way when attempting to collect on a debt.

Debt collection is a real problem that impacts over 30 million individuals in the United States, which is approximately 14% of the country’s adult population. Many Americans have debts that are or could be subject to the debt collection process. The average debt amount is $1,500.00, but much larger amounts can result from excessive use of credit cards, medical bills, or other debt. As such, debt collection is an incredibly large and profitable industry.

In the 1970’s, Congress began investigating debt collection practices and found that there was “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors.” Additionally, the reports showed that “[a]busive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” These results caused Congress to pass the FDCPA in an attempt to protect consumers and to regulate the debt collection process. The FDCPA protects all consumers who have fallen into personal debt from the predatory and harassing behavior that collections agencies may engage in, such as calling multiple times a day, threatening legal actions unrelated to the underlying debt, and speaking to a third-party about the consumer’s debt.

What type of debt is covered by the FDCPA?

Debts such as personal credit cards, auto loans, medical bills, mortgages, and other personal debts are covered by the FDCPA. Any household or family debts are also covered. However, the act does not apply to debts that have accumulated through the running of a business. Additionally, the FDCPA only covers debts that were entered into voluntarily – debts from fines, parking tickets, or other court-imposed debts are not included.

What does the FDCPA protect against?

Most often, debt collectors will contact consumers via email, letter, or phone. When a collections agency contacts you, there are certain behaviors that are not allowed under the FDCPA. These behaviors fall into the main categories of (1) harassment; (2) deception; (3) threats; and (4) unfair practices.

Harassment: There are no bright-line tests to determine what is harassment under the FDCPA. Examples of harassing behavior includes publishing the names of debtors, using obscenities or profanities, repeatedly calling you, or calling you at inconvenient times (such as before 8:00am or after 9:00pm), and contacting you at work if you have told them not to do so. The FDCPA also prohibits a debt collector from contacting you if you have written a cease and desist letter requesting that they stop calling or sending collections letters.

Deception: A debt collector may not, under any circumstances, lie about their identity. They are prohibited from representing themselves as an attorney (unless they are a lawyer who works in debt collection) or as a representative from a government agency. They also may not falsely claim that you have committed a crime by failing to pay your debt, misrepresent the amount of any debt, or tell you that you may be arrested if you do not pay the debt. Collectors also cannot misrepresent legal documents that have been sent to you.

Threats: Collections agencies may not threaten you with legal action, unless they intend to take legal action and such action would be allowed by the court. A debt collector may not threaten to have you arrested, to seize your property or wages, or to deprive you of custody or welfare benefits. While a debt collector can sue you for unpaid debt, they cannot have you arrested and cannot take anything from you until they have a court order that allows them to do so. Furthermore, certain welfare benefits and custody payments are untouchable by debt collectors even after they have successfully sued for the debt.

Unfair Practices: These include contacting a third-party (such as a relative, neighbor, or employer) about your debt, and/or making misleading, or deceptive representations to you or a third-party. The only contact a debt collector may have with a third-party regarding your debt is contact for the purpose of obtaining your location or contact information. They may not disclose that you owe a debt to any third-party. Unfair practices also include using a false company name, sending you documents that appear to be from a government agency, trying to collect illegal interest fees on top of the original debt, or depositing a post-dated check early.

Which debt collectors are subject to the FDCPA?

The FDCPA only applies to debt collectors. A debt collector is any person who regularly collects, or attempts to collect, consumer debts for another person or institution. This means that it does not apply to the original creditor, but will apply to any party that subsequently acquires the debt. Debt collection agencies subject to the regulations of the FDCPA include collection agencies, lawyers who collect debts on a consistent basis, and companies that buy debts from the original creditors.

To break this down, say you have accumulated debt on your store credit card from Company A. If Company A is attempting to collect on the debt, they most likely are not subject to the FDCPA provisions. However, if Company A has sold the debt to Collections Agency B, and Collections Agency B attempts to collect on the debt by contacting you, it must abide by the requirements of the FDCPA. Collections Agency B, therefore, may not contact you late at night, harass or threaten you, or make deceptive statements in its collections process. Many creditors engage in this process of “selling debt” to collections agencies, and in fact most debt that remains unpaid will be sold to a third-party debt collector.

What can I do if a debt collector is violating the FDCPA?

The Federal Trade Commission (“FTC”) is the government agency responsible for enforcing the provisions of the FDCPA. If a debt collector is violating the rules of the FDCPA, you have the ability to sue the collector in state or federal court within one year of the violation. If you win the case, you can recover damages suffered as a result of the illegal corrections methods – such as lost wages and medical bills. Many states also have their own versions of the Fair Debt Collections Practices Act that can impose additional sanctions on debt collectors who have acted illegally. However, even a successful suit against a debt collector for violations of the FDCPA will not eliminate the debt that you owe.

To report a violation of the FDCPA, you may contact the FTC, your state’s Attorney General’s office, the Consumer Financial Protection Bureau, or an attorney.

What happens if a debt collector sues me?

Under the FDCPA, a debt collector cannot make threats to sue you if they have no intention of starting a suit, or if there is no legal basis for a suit. They can, however, sue you in an attempt to collect the unpaid debt. If the collector wins the suit against you, the court will enter a judgment stating the amount of money you owe and an order allowing the collector to take the money from you through a garnishment. Garnishment is when the court directs your bank to turn over portions of your paychecks or funds in order to pay off the debt.

Unlike wages, many federal benefits cannot be garnished by a debt collector. These include Social Security Benefits, Supplemental Security Income, Veteran’s Benefits, and Civil Service, Federal Retirement, and Disability Benefits. These federal benefits can only be garnished for debts of child support, alimony, taxes, or student loans. They cannot be taken by an ordinary debt collector, even if that collector has won a suit against you.
You will receive a notice when a debt collector has started a lawsuit against you. If the debt collector files a lawsuit, you should respond to the lawsuit either personally or through a lawyer. Ignoring the suit will not make it go away and could result in a default judgment being entered against you. A default judgment can damage your credit score. If you have ignored the lawsuit, you also will lose the opportunity to object to the garnishment of your wages.

Have a problem with debt collectors? Maybe we can help! Call Lawrence & Associates and ask for a free consultation. We’re Working Hard for the Working Class, and we’d like to help you!

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