What do you do following an accident?
The actions that you take immediately following an accident can weigh heavily on the success or failure of your personal injury litigation. This fact applies to any accident regardless of whether your injury was caused by a motor vehicle accident, a slip and fall accident, as the result of equipment or product failure, or in any other way. The fact is that by the time that you are asked at a deposition or other proceeding to recall information regarding your accident and your injury, many months, if not years will have passed. We are human and so our memories will fade. Unfortunately, you will forget many crucial pieces of evidence that may have significantly assisted you in your action. Therefore, what you do following an accident is of the utmost importance.
Immediately following any accident or incident, you must be sure to be as perceptive as possible and to concentrate on the events following the accident. This includes observations as to time and distances, the name and addresses of the people around you who may have witnessed any part of the accident, and statements made by any people including the potential defendant and his or her employees. If you are able to do so, write down your observations as soon as possible after the accident has occurred. It is wise to carry a camera and a notepad in your car so that you may take photographs of the accident scene and your car, and so that you may take notes as to the identity of witnesses and/or anything else that you think may be important later. Also, with the advent of camera cell phones, you should take photographs of anything that you believe might be important. For example, if you have fallen on something, it will be very informative and helpful if you were to take a photograph of whatever it was that caused you to fall. As another example, if you are injured by a product or equipment failure, it is very important that you take photographs of the product or equipment, paying special attention to any warnings, markings or instructions.
Also, keep in mind that in the days following your accident, representatives from insurance companies may contact you to discuss your accident or even to provide a statement. These people may identify themselves as being from the insurance company, or as having no such affiliation. Regardless of their affiliation and if you intend to retain counsel, never discuss with these people how the accident happened or how you feel. Rest assured, that any information that you provide will most certainly be used against you and your matter. It is also important to remember that you should never sign any documents as you will not know what rights you are signing away.
In the event of an accident, do I even need an attorney?
In some instances, you are more than capable to protect your own interests without the assistance of any attorney. For example, if you are in a motor vehicle accident and have only sustained property damage to your vehicle and no damage to your person, you may not need the assistance of an attorney. You need only make a claim through your own insurance company under your collision coverage. If there is a party to blame, your insurance company will retain their own attorney to recover from that party the money which was paid out. Even if you pay a deductible, the attorney retained by the insurance company will recover that amount as well. This is called a subrogation claim. If you were to retain an attorney, the repair of your vehicle would occur much later and the attorney would recover half of whatever was paid out for the repair. This would mean that you would be responsible for a portion of the repair costs. This is a relatively simple that does not require an attorney and would result in you receiving less than what your owed.
However, in instances of personal injury caused by any event, it is most often better to retain counsel. Make no mistake about, the insurance companies do not want to pay anything and will only do so when they feel that they must, and even then will want to pay as little as possible. The insurance company may propose a settlement, but more often than not, the amount that they propose is less than that which they would have suggested to an attorney. The insurance company realizes that this may be the first time that you have been involved in an accident where you have been injured and that you will simply not know the full extent to which you are entitled to be compensated. For example, imagine that you are an art collector and that you are purchasing a famous piece of art from an individual who knows nothing about the value of the piece he is selling. Under these circumstances, it would be easier to buy the artwork at a price below the fair market value because of the seller’s lack of knowledge. Now, imagine that you are purchasing the same piece art from an art dealer like yourself. In this instance, you are more likely to pay the full fair market value for the artwork because each of you has more similar levels of knowledge. The advantage of using an attorney is that he or she is experienced at obtaining a full settlement because he or she is aware of the full market value of your injury. Of course, you are responsible for paying attorney’s fees, but in most instances the amount is worth it where the issues are complicated and the insurance companies would have an unfair advantage over your lack of knowledge and experience with pursuing a claim.
Who will pay for my medical bills?
Under the laws in both Pennsylvania and New Jersey, your own automobile insurance company is responsible for paying your medical bills, regardless of who is at fault. This is called Personal Injury Protection (PIP). However, this is not the case if you have selected your private health insurance coverage as primary in return for a reduced premium. It is better to retain your automobile insurance coverage as primary in the event of an automobile accident as it will ensure that you will obtain the medical care that you may need, and that the insurance company will pay for it
Who will pay for the damage to my car?
Unless the other driver is clearly at fault and if you have collision coverage, you should contact your own automobile insurance company and submit a claim. Your insurance will require an appraisal of the vehicle to determine the extent of damage and they will then pay that amount to repair the vehicle, minus your deductible.
If liability is clear or if you do not have collision coverage, then you should let your attorney contact the other driver's insurer. Alternatively, you should obtain a written estimate from a licensed auto body shop, even if your vehicle is deemed a total loss. Thereafter, provide a record of your estimate to your attorney as this will be important evidence. If the car is incurring storage charges, you should make arrangement to either repair or dispose of the vehicle as soon as possible. The storage charges can rack up quickly and you will be surprised at how much even a few weeks of storage will cost.
My car is damaged, can I get a rental car and who will pay for it?
You may be entitled to the reimbursement of a rental car. However, the amount of the reimbursement and for how long will depend on your insurance coverage. Keep in mind, that in most circumstances your reimbursement may not be enough or for a long enough period of time. If you do not have rental reimbursement or not enough, you will be able to make a claim against the other person's insurance company. However, you will have to pay for the rental first, typically on a credit card, and the bill is then submitted later for reimbursement. Ultimately, you will be limited in your recovery to a "reasonable" daily rate for a "reasonable" period of time, depending on the circumstances.
What if I do not own a car and do not have automobile insurance?
If you do not own an automobile of your own, a potential source of coverage may be through a resident relative's insurance. However, if there is no immediate family member in your household with automobile insurance, you are entitled coverage from the vehicle in which you were traveling in at the time of the accident. In the event that the vehicle was uninsured, then an application would be made to the Pennsylvania Financial Responsibility Assigned Claims Plan or the New Jersey Unsatisfied Claim and Judgment Fund Board depending upon where you reside.
The only time the other driver's insurance company would be responsible for your medical bills is if you were a pedestrian at the time of the accident, and there were no other sources of insurance available to you. Please keep in mind that this is only with regard to answering the question, who will immediately pay my medical bills while I receive treatment. If the other driver is at fault and even if your medical bills remain unpaid, you will be able to recover from that other driver.
What does limited tort (in Pennsylvania) or verbal threshold (in New Jersey) mean?
If you have made this election, it means that you have paid lesser premiums, but in exchange you have forfeited some substantial rights. This means that with some limited exceptions, you are unable to recover for your pain and suffering. Whether you can recover for pain and suffering requires some analysis and will depend on such things as the extent of your injuries and/or the use of the other driver's vehicle and/or in which state the other driver's vehicle was registered.
This is an issue that you will definitely need to discuss with your counsel. Also, be sure that you fully understand the implications of this selection when you obtain your own automobile insurance policy. The money that you save in the short term by selecting limited tort (in Pennsylvania) or verbal threshold (in New Jersey), may not be worth it when you cannot fully recover for your injuries.
What should you do if you are injured on the job?
You should notify your employer as soon as possible and preferably in writing. This notice may be given to your supervisor, personnel office, or anyone in authority. If you are in need of medical assistance, you should likewise request that of your employer as soon as possible. In Pennsylvania, you have 120 days from the date of your injury to notify your employer. If you do not do so, you will be barred from receiving any worker’s compensation benefits.
Keep in mind that there is a statute of limitations that applies to claims for worker’s compensation. This means that in New Jersey, a formal claim petition must be filed within two years of the date of the injury or the date of the last payment of compensation, whichever is later. In cases of occupational illness, such as asbestosis, lead poisoning or hearing loss, the claim petition must be filed within two years from the date the worker first became aware of the condition and its relationship to employment. In Pennsylvania, a claim petition must be filed within three years of the date of the injury.
What doctor should I go to?
Under the New Jersey workers' compensation law, the employer and/or their insurance carrier can select the health care provider with the injured worker should treat for the work related injuries. In Pennsylvania, your employer can only dictate who you must treat with in the 90 days after your injury, but only if they have posted a list of at least six health care providers and you have signed two "acknowledgments of rights and duties." If these two requirements, are not met you can receive treatment with whomever you choose.
What are the employer's obligations after the employer has been notified about an accident?
In New Jersey, the employer should immediately notify their insurance carrier so that a First Report of Injury can be filed with the Division of Workers' Compensation. Where the employer is a self-insured or a governmental entity, they are required to file this report directly with the State. Thereafter, the employer's workers' compensation insurance carrier will evaluate the claim and determine if it is compensable. In order to make this assessment they will contact you, your employer and your initial medical providers. If your claim is accepted, they will then direct you to an authorized medical provider for treatment. If your time out of work is more than seven days, then they will also provide you with temporary disability benefits.
In Pennsylvania, the employer has 21 days from the date that it is first put on notice of your injuries to deny or accept your claim. This means that you will either receive checks within 21 days or a Notice of Denial. While you should contact counsel immediately after injury, you should especially do so if you have received a Notice of Denial or if you receive nothing after 21 days. In some instances, an employer can be penalized up to 50% of the employee’s outstanding benefits by failing to act. This can be recovered by way of the filing of a Penalty Petition.
What happens if there is a dispute between you and your employer and/or the employer's insurance carrier over your entitlement to benefits?
In New Jersey, worker’s compensation benefits are composed of three basic elements: medical treatment, temporary disability benefits, and permanent disability benefits. Many employers will provide medical treatment and pay an injured worker’s salary while the injured worker is recovering; however, many employers will not tell the employee that the employee can still file a formal Claim Petition for permanent disability benefits. An award of permanent disability is a percentage based upon the extent of the injury. Each percentage of disability has an associated dollar value for which you are entitled to recover. It is important to obtain an attorney to file the formal Claim Petition on your behalf so that your rights are protected. An attorney cannot charge you more than 20% of the benefits which you receive stemming from the filing of a formal claim petition.
In Pennsylvania, you must file a Claim Petition with the Bureau of Worker’s Compensation. Thereafter, there will be a hearing before a Worker’s Compensation Judge, who will hear your testimony as the circumstances of your injury and the extent of your disability. You may also present the testimony of non-medical/expert witnesses to support your claim. Typically, there will be more than one hearing. At these later hearings, you may present medical evidence and your employer may present any of their non-medical/expert witnesses to support their position. After all the evidence has been presented, the Judge will prepare a written decision which will be mailed to all parties. The Judge’s decision will not be overturned unless there is an error of law. In if there is such an error, an Appeal can be filed to the Worker’s Compensation Appeal Board.
What is a will?
A will is a written legal document which provides instruction as to the disposition of your assets upon your death. Upon death, the will is filed with the probate court, which is the only way that it can be enforced.
What is an Estate?
An estate is everything that a person has ownership interest or control over at the time of his or her death. For example, an estate includes: real estate and buildings on real estate; personal property, which includes automobiles, bank accounts, stocks and bonds, mutual funds, stock options, cash, furniture, jewelry, etc.; business interests in companies; life insurance and annuity contracts, pension benefits, IRAs, 401(k)s; debts; and all claims against others, such as claims involving a personal injury. An estate may also consist of property or financial interests that would become available upon death, such as life insurance.
What is probate?
Probate upon death is the legal process through which an executor must proceed in order to effectuate the wishes of the will. Depending upon the amount of the estate, a judge in probate court will rule on the validity of the will; make certain that the estate’s debts are paid; establish clear title to assets, if necessary; and allow the distribution as per the will.
What happens if you die without a will?
When you die without a will or other instrument providing for the distribution of your property, you are deemed to have died intestate. Dying intestate means that the laws of the state in which you were residing at the time of your death will dictate the manner in which your property will be distributed. Each state has its own intestacy statutes, which are established by the legislature.
The laws of intestacy apply when you die without proper estate planning (a will); have property without designated beneficiaries; and have property that is not owned in joint tenancy. An account that is "payable on death" or "POD" is an example of property that specifies a designated beneficiary. Alternatively, a property that is owned in joint tenancy is a bank account with two names on it or a property owned jointly, such as by a husband and wife. In both instances, upon the death of the account holder or one of the joint tenants, the interest automatically transfers to the designated beneficiary or the then remaining joint tenants. This can occur in the absence of a will and is a method of directing assets in a manner consistent with your specific wishes as opposed to a manner directed by the state. Even if you have a POD account or own property jointly, you may find yourself subject to the laws of intestacy if all of the designated beneficiaries and/or joint tenants have died before you. Moreover, where only part of your property is distributed in such a manner, the remainder of your property will be distributed by way of intestacy. Therefore, it is important to ensure that all of your property is accounted for by preparing the appropriate estate documents to ensure that your property is distributed in the manner that you would like at your death.
The following represents only a brief synopsis of the intestacy laws in New Jersey and Pennsylvania and is not meant to be a substitute for more detailed legal advice:
We do not have any kids and all I have is a house, do I need any will documets?
In the absence of a spouse, descendant, parent, sibling, nephew, or niece, an intestate estate will then transfer to the maternal and paternal grandparents or great-grandparents and their descendants, who are uncles, aunts, great-uncles and -aunts, and cousins of various degrees. If you have never been married and have no family descending from your grandparents or even great-grandparents, your estate will likely escheat — meaning it is transferred to the state in which you live, with real estate going to the county in which it is located.
Do I need to create any estate planning documents?
We do not have any kids and all I have is a house, do I need any will documets?
Even if all of your assets are owned by you and your spouse, you may need a will. If you die without a will, you are deemed to have died intestate. Any property that is jointly owned by you and your spouse automatically transfers to your spouse. However, as to those assets owned solely by one of you, those assets are distributed according to the intestacy laws of your state. For example, in Pennsylvania your spouse would receive the first $30,000 and then half of the estate or assets that are owned solely by you. The other half would be distributed in the manner set forth above. This may be a manner of distribution that does not necessarily comport with how you would like to distribute your assets.
What if your assets are less than $30,000 so that your spouse would still receive everything anyway?
Even then you will need a will if your spouse and you pass away at the same time, such as in the event of a motor vehicle accident. In that instance and if you have no issue, your estate would be split among your parents with each receiving 50% of this estate. It is in this instance that you may have some conflict among the parents and therefore, a will could help avoid the conflict and distribute your assets in a manner that you would like.
Do I have to worry about taxes for my estate?
In most instances, an estate passes to beneficiaries free of federal estate tax. A spouse can leave an unlimited amount to a surviving spouse without that amount being subject to federal estate taxes. According to the Tax Relief Act of 2001, people can leave up to $1,500,000 to other beneficiaries without paying federal estate taxes. This is the current 2004-05 amount and will be raised each year until 2010. In 2010, the law will be repealed and the estate tax eliminated. In fact, the 2001 Act contains a "sunset" provision, which means that if no new law replaces it, the law reverts on January 1, 2011 to what is was in 2001, which is $1,000,000.
|Year||Applicable Exclusion Amount||Tax Rate*|
In addition to the applicable exclusion amounts, a variety of other estate tax savings strategies are available.
Credit Shelter Trust.
This trust is generally used in a married couple's estate plan so as to maximize the unused credit against Estate and Gift Taxes Taxes. That credit amount is increasing each year until the estate tax repeals on January 1, 2010, as follows:
The following illustrations to demonstrate how a married couple can leave an estate worth up to $1.3 million without owing taxes through the use of a credit shelter trust. The illustrations assume that the credit is $650,000.
Assume that the husband dies first and leaves his wife a $1.3 million estate. Because the estate is merely to be conveyed to the surviving spouse, there is no estate tax and the full amount goes to the wife. Assume that the estate does not increase or decrease and remains $1.3 million at the time of the wife's
The illustration to the left demonstrates how a married couple can avoid paying that $250,000 estate tax. A credit shelter trust allows the assets of the spouse who has died, in this case the husband, to be placed in trust. Federal estate tax can be eliminated if the husband's will leaves an amount equal to the credit amount and in trust for the benefit of the wife, and the balance of his estate directly to his wife. The trust can produce an income for the wife. The trust can be designed so that the wife does not feel any restriction by its terms. In the example to the left, the wife's estate will receive the $650,000 tax credit for her part of the estate and no federal estate tax will be paid. The result is that the children will get the full $1.3 million.
What if I make gifts to my children or grandchildren? How will that affect my estate planning?
There is a tax exclusion for the annual gifting of up to $11,000 per year, per person. The lifetime gift tax exemption is $1,000,000 and will continue to be $1,000,000 for the indefinite future. This means that the most you can gift in your lifetime is $1,000,000 without the person receiving the gift paying any taxes. For tax purposes, a gift is a transfer of property for less than its full value. In other words, if you are not obligated to fully pay back the amount, it is a gift. The giftor must file a Form 709, U.S. Gift (and Generation-Skipping Transfer) Tax Return, which is due on April 15 of the following year. Even if the giftor does not owe a gift tax because he has not reached the $1,000,000 limit, he is still required to file this form if he has made a gift because the IRS needs to keep a running tab of the $1,000,000 lifetime exemption. On the gift tax return, the giftor must report the fair market value of the gift on the date of the transfer, the giftee's tax basis and the identity of the recipient. The person who received the gift does not have to pay any federal gift taxes nor file a tax return evidencing the gift. The giftor should attach supplemental documents that support the valuation of the gift, such as a bank statement, etc.
I have life insurance. How does that affect my estate planning?
Most of us believe that life insurance is something that we pay so that your spouse and kids have money upon your death. However, if you have already amassed enough wealth to give to them upon your death, the extra life insurance proceeds can be used to pay any estate taxes. In order to accomplish this, the policy must be in an irrevocable trust. If not, then the proceeds are considered part of the estate when you die and you will owe estate taxes on it. With your life insurance policy in an irrevocable trust, the proceeds become free of income and estate tax because the trust owns the policy not you.
However, once you put the insurance policy into a trust, you relinquish control of it. You can never borrow from it. Moreover, once the money is in the trust and the beneficiaries are chosen, you cannot change your mind and change the beneficiaries. These are all evidence of control which would mean ownership and which would mean that you would be taxed upon your death. It is recommended that you hire a trustee, such as a financial institution, to take care of the trust because once it is set up, you can no longer make any of the trust's decisions.
Once the trust is set up, you will need to continue to keep giving the trust money so that it can pay the annual premiums on the life insurance policy. By giving the trust money, you open yourself up to the gift-tax issues discussed above. As such, it is important that the trust is set up properly so that it will allow the payments you make to the trust to be sheltered by the annual gift-tax exclusion. Moreover, depending on the type of insurance policy you put in the trust (e.g. permanent policy where there is an investment aspect to the policy) you may need to adjust your premiums to make up for market fluctuations. There is one downside and that is if you die within three years of establishing the trust, you are considered an owner and will owe estate taxes anyway.
How do I protect myself in any business dealings?
Did you know that in both New Jersey and Pennsylvania when a contract is in writing, neither party is permitted to later show that the contract is different from what is written by use of some other evidence?
Did you know that evidence of prior oral or written negotiations cannot be used to vary or change the written terms? This is called the parol evidence rule.
Did you also know that in both New Jersey and Pennsylvania, language in a contract that is ambiguous or subject to different meanings is interpreted against the person who wrote the contract? Because of rules like these, it is especially important that contracts of any type (ie. business dealings, confidentiality agreements, employment contracts, etc.) be properly negotiated, drafted and/or reviewed by an attorney to avoid future problems and possible litigation.
What if the contract does not contain all of the negotiations and discussions that led up to the contract?
While evidence of prior negotiations is not typically admissible, such evidence is admissible under the following limited circumstances:
For example, if a party claims that a term is ambiguous, you may be able to prove that both parties had discussed the term and understood the meaning of it at the time of the contract. Therefore, it is especially important to document any communications between the parties regarding discussions as to the terms of the agreement, and maintain any rough drafts of the contract and/or documents reflecting changes thereto.
I am buying a house, do I need an attorney?
Buying a home is probably the largest financial decision you will make in your lifetime. Even then, you may not need an attorney. Ultimately, the decision to retain an attorney depends entirely on how comfortable you feel with the seller and all of the parties involved. However, in most instances you will need an attorney to assist you.
For example, our firm recently represented an individual in the purchase of a property, who had put down a sizeable deposit. At all times, prior to the signing of the agreement, the seller was entirely cooperative and friendly. Like most sellers, he was purchasing another property. After the agreement was entered into, the seller began accelerating the closing date. He wanted to avoid paying the mortgage for another month regardless of the fact that the buyer, the bank's attorney and the property agent were not available at an earlier date. Despite that fact and the fact that the contract was silent as to making time an issue, the seller's attorney threatened to keep the deposit if the closing was not conducted at a certain date. The closing took place at another time, but only after our firm threatened to file a claim for among other things, breach of contract.
In this instance, the buyer had no reason to believe that the seller would become so antagonistic. The fact is that everyone has their own interests to attend to and sometimes those interests will conflict. When it comes to property, the importance of your interests become magnified by the amount of money being spent and often times, the emotional attachment that we feel for our homes.
If you do retain an attorney, what does he or she do for you?
Once a contract is signed by all of the parties the process moves to an attorney review period. In Pennsylvania and New Jersey that attorney review period is typically three business days. During that time your attorney will consider some of the following issues:
Who will get what in the event of a default? Is there sufficient time to inspect? What happens if something is broken or in need of repair? What is included with the property? Is everything that is included in good working order? Are there warranties? Is there sufficient time to obtain a firm written commitment? Has enough money been provided to cover interest, taxes, and insurance?
FOR THE BUYER
FOR THE SELLER