Lawton & Cates Blog

Administrative Code Protects Injured Renters

     The Residential Rental Practices Code requires landlords to maintain their rental properties in a reasonably safe manner.  The landlord is also required to tell potential renters of any dangerous condition that the landlord knows about or should have known about if they did a reasonable inspection.  The code can be found at:  www.legis.state.wi.us/rsb/code/atcp/atcp134.pdf . 

     The purpose of the law is to protect renters from hazardous and dangerous conditions in their apartment.  Some common examples of conditions that could involve the code are faulty wiring in an apartment that starts a fire and injures someone, failure to have smoke or carbon monoxide detectors in an apartment in a situation where someone is injured, and stairways that do not have handrails or other safety features in a situation where a person falls and gets hurt.

      A violation of ATCP 134 is enforceable under Wis. Stats. sec. 100.20.  This statute provides for double pecuniary damages  (medical bills and lost wages for example) and attorneys fees for a person injured because of a violation of the Residential Rental Practices Code.  The law is a strong statement that landlords owe their tenants a duty to rent safe places, and to inform their renters of any unsafe conditions.

     If you have been injured because of a landlord’s carelessness contact Lawton & Cates at dgahnz@lawtoncates.com.

The Danger of Texting and Driving

THE ATTACHED VIDEO CONTAINS A GRAPHIC DEPICTION OF A CAR ACCIDENT:

I discussed some of the ways to stop teens from texting while driving last week.  This week I want to show why it is so important.  The video is a public service announcement from the UK and shows the tragedy that can result from texting and driving.

http://www.youtube.com/watch?v=DGE8LzRaySk

Property Damage and Car Accidents

If you have been in a car accident,  one of the issues you have to deal with is your car.  Is it totaled, who is going to pay for it to be repaired, and what are you supposed to drive in the meantime?  These questions arise commonly, and your insurance company tends to answer these questions in a manner that best suits them.  The  law provides you with specific rights that protect you and are designed to put you back to where you were financially just before the accident.

 YOUR CAR IS TOTALED

If your car is damaged, the first decision is whether it is a total loss or repairable.  The decision to total a car is generally based on a percentage formula.  For instance if it is going to cost $2,500 to repair the car, and it has a value of $2,800, it will generally be considered a total loss.  If your car is a total loss, you have a decision to make.  Do you want the money for the car,or do you want the car? 

 There are situations when your car is drivable, but will cost more to fix than it is worth.  In those situations you can get the value of the car less its  salvage value .  You should be aware that the title will reflect that the car is considered a total loss vehicle.

In situations where your car is totaled the insurance company will want to pay you the wholesale or “bluebook” price for the car.  The internet is your greatest tool in getting fair value for your car.  There are sites such as http://www.autotrader.com/ and http://www.carmax.com/ that allow you to search for your car and find out how much it is selling for.  Generally, I recommend that you do a search for cars within 100 miles of your location.  Make sure you put in the correct mileage and designation for your car (EX, LX etc.).  The law requires the insurance company to pay the fair market value of the car.   Thus, if you find three cars of the same year, make, model, and mileage as yours and they are all selling for $12,500 that sets the value.  Print off the results of your search and give them to the adjuster.  The key thing to remember is that you are entitled to the market value of your car.

RENTAL CAR

If your car is damaged or totaled you are going to need a car while you shop for a new one or yours is being repaired.  The first thing you should check is your policy.  Call your agent and see if you have coverage for a rental car.  If you do, check the terms ahead of time.  Find out how much they cover per day and how many days the policy provides for.  Most times, the at fault driver’s insurance company is not going to provide a rental car for you.  They are required to pay you for loss of use of your car.  Loss of use is not dependent on you getting a rental car.  If your car is not drivable, you are entitled to get paid for loss of use until it is repaired or until there is an offer to replace it.  Of course, you can’t leave your car sitting for six months and collect loss of use damages.  You need to get your car repaired or replaced in a reasonable period of time. 

If you have questions about your rights, contact me at dgahnz@lawtoncates.com.

Injured Children and the Law

Children can be injured in a number of ways, from automobile accidents, to ATV injuries, to injuries from dogs.  When a child is injured, the laws in Wisconsin provide some special protections.  Children have a longer statute of limitations, special rules of negligence, and special protections from the court at the time of settlement. 

The usual statute of limitations in Wisconsin is three years from the date of injury in negligence cases.  There are certain exceptions to that time limitation that are beyond the scope of this article.  You should always check the law to see how much time you have to file a claim.  If you do not file your claim within the statute of limitations you will not be able to collect your damages, so it is a very important determination.

The statute of limitations for children in negligence actions in Wisconsin is two years from their 18th birthday.  Again, there are exceptions to this rule, including claims for medical negligence, and claims against the state.  The policy behind the law is to allow children to decide for themselves whether they want to bring a claim once they reach the age of majority.  For example, a parent may not want to sue for the dog bite their daughter suffered when she was thirteen.  The law gives the daughter the opportunity to make that decision for herself once she turns 18.

The next difference in the law for injured children concerns determining fault.  The general rule is that everyone in Wisconsin is required to act with reasonable care, and that a failure to act reasonably is negligence.  With children, Wisconsin has decided that anyone under the age of 7 cannot be negligent as a matter of law.  Children over the age of seven are expected to act as a reasonable child their age would act.  The law is designed to hold children to a lesser standard of care, but creates a practical problem.  One has to be an adult to serve on a jury, and if the injury involves a  12 year old child, the jury will be asked to judge how a reasonable 12 year old would act. 

Wisconsin law also seeks to protect money paid to children when they are injured.  The law requires the court to hold a minor settlement hearing and to have a guardian ad litem appointed to ensure that the settlement is fair, and to make sure the money is put away for the benefit of the child.  The court normally requires the settlement money be put in protected account, and requires court action to take money out of the account before the child’s 18th birthday.  Thus, if a parent wants to use some of the settlement money to pay for expenses of raising the child, they have to go to court.  Judges are reluctant to release funds for the every day expenses of child raising.  However, if the child needs medical care, and the minor settlement funds are the only way for the child to get the care, courts are likely to release the money.

One drawback to the system currently in place is that once the child turns 18, the money is theirs to do with what they want.  In some cases, an 18 year old will be responsible, but many will spend the money on a new car or other disposable goods and have nothing left in a couple years.  A parent can try to set up a structured settlement that pays out some of the money at 18, and the rest later.  These types of settlements are a good way of protecting a child from the excesses of youth.  A note of caution is required however.  You should look carefully at the structure, and make sure it is a good investment, and you should be aware that your child could potentially sell the structured settlement for pennies on the dollar once they turn 18.

If your child has been injured, contact dgahnz@lawtoncates.com

How to Prevent Teen Texting while Driving

We all know that texting while driving is dangerous, but teen drivers still do it at an alarming rate.  Some studies show as many as 46% of teens admitted to texting while driving.  97% of these same teens agreed that texting and driving is dangerous.   A person texting while driving has her eyes off the road 400% more than one who is not.  A driver who is texting is distracted and a menace to other drivers. 

I have two teenage daughters, and know the pervasiveness of texting in their life.  They will send and receive between 12,000 and 15,000 texts per month   Teens text automatically and effortlessly.  It is their preferred mode of communication.  Leaving aside the sociological issues of this mode of communication, the question is how to stop them from texting and driving.

PASS A LAW

Many states and municipalities are making it illegal to text and drive.  While this approach has some facial appeal, it is like any prohibition on a preferred activity.  People will break the law.  The practical effect of a law prohibiting texting and driving is that it punishes the behavior, rather than preventing it.   

JAM THE CELL PHONE SIGNAL

The technology is available to jam the cell signal in your car.  http://seattletimes.nwsource.com/html/nationworld/2008694337_jam01.html   The idea is that a jamming device is activated while the engine is running.  The result is your vehicle has a dead zone where the signals do not get in or out.  The problem with this solution is that it is illegal.  The FCC could fine you up to $11,000.00 and impose a bunch of other penalties.  The  FCC does not want the right to the airways infringed upon, and thus jamming technology is illegal.  It seems to me that the balancing of rights should be in favor of life even at the cost of some profits to the cell phone industry.

CAR CAMERAS

Parents can place a camera in the car their teens drive.  Several insurance companies offer programs to help fund the cost of the cameras.  See American Family’s plan:  http://www.amfam.com/customer/learning/safety/teendriversafety.asp  The camera is designed to go on whenever the it senses something wrong with the way the car is being driven.  Thus, it will show the results of texting and driving, but it won’t necessarily prevent the behavior.

 TALK TO YOUR KIDS

Even if we don’t believe it, our kids do listen to us.  As parents we set the rules for our kids, and if we are clear about texting and driving many of them will listen.  You can check your cell bill and get the dates and times your kids are texting without invading their privacy.  You can compare when they had the car to when they were texting and take away driving privileges in the event they violate the rules.

Wisconsin Consumers Score Victory Against Internet Payday Lender

1300 Wisconsin consumers who  entered into loan contracts with Arrowhead Investments, Inc. from December 21, 2001 through December 21, 2007 stand to receive relief in the form of loan forgiveness in a settlement agreement approved in Dane County Circuit Court on Wednesday, July 29, 2009.     Pursuant to the settlement agreement, Arrowhead Investments, Inc. has also agreed that it will not conduct business for the next five years in the State of Wisconsin.

Arrowhead Investments, Inc. is a Kansas-based company in the business of providing short-term payday loans over the Internet.  Internet payday loans typically are made when a consumer borrower authorizes the payday lender to access the consumer’s checking account.  The payday lender deposits the principal loan amount directly into the consumer borrower’s checking account.  Unless the consumer has repaid the loan by the loan due date, the payday lender automatically “refinances” the consumer borrower’s loan on the due date.  When the loan is “refinanced”, a finance charge is assessed to the consumer borrower.  Payday lenders make most of their profits from these finance charges.  Unfortunately, there are no laws in Wisconsin that limit the interest rate that can be charged by payday lenders.  Because there is no regulation on the amount of interest that can be charged, annual interest rates can easily reach triple digits. 

Plaintiffs’ complaint against Arrowhead Investments, Inc. alleged various disclosure violations of the Wisconsin Consumer Act, common law unconscionability and violations of the Truth in Lending Act. Plaintiffs were represented by the UW Consumer Law Litigation Clinic and Lara Sutherlin from the Wisconsin Department of Justice. 

For more information on the settlement, follow the link.

http://www.madison.com/wsj/mad/top/460167

Credit Card “Arbitration Agreements” Under Attack

If you own a credit card, you have probably given up your right to a trial in the event of any dispute with the credit card company.  You probably didn’t know that when you signed up for the card because the information was buried in the fine print.  You most certainly did not know that the “arbitration” you agreed to was rigged in favor of the credit card companies.

The truth about the relationship between credit card companies and the National Arbitration Forum (NAF) is that they work together to collect debts, according to a congressional report.  The report’s findings include:

“Virtually all NAF “consumer arbitrations” are in fact debt collection actions brought by creditors or assignees of creditors, not by the consumers themselves, and almost all consumer arbitrations are decided in the creditor’s favor.  (Staff Report of the Domestic Policy Subcommittee Majority Staff Oversight and Government Reform Committee House of Representatives).

The report also cited major differences between court proceedings and “consumer arbitrations”.  These include:

• A lawsuit must be served on a defendant by a neutral third party/ Notice in the arbitration is given by the credit card company
• A judge is required to follow the law and is subject to review/  An arbitrator is allowed to ignore the law and is not subject to review
• A judge is required to be neutral/ The NAF advertises to collection companies that when you explain the process to debtors “they hand you the money”
• Judges are randomly assigned to a case and have no interest in the outcome/ Arbitrators are assigned by the NAF and have a financial interest in getting more cases.  One arbitrator was permanently disqualified by the NAF because he found in favor of too many consumers.

The state of Minnesota filed a lawsuit against the NAF.  The lawsuit alleged that the NAF had close financial ties to the collection industry.  The suit also claimed that the NAF claimed to be neutral and independent while working behind the scenes to convince credit card companies to add arbitration clauses to their agreements.  The state of Minnesota reached a settlement that required the NAF to stop conducting consumer arbitrations in Minnesota. 

If you have been required to arbitrate a consumer dispute with the NAF contact dgahnz@lawtoncates.com for more information about your rights.

Federal Court Opens Door to Civil Rights Suits in Nursing Home Cases

An elderly woman in Pennsylvania entered a nursing home where she received improper care,  according to her complaint.  She developed pressure sores, became malnourished, developed sepsis and ultimately passed away.  The woman’s estate brought suit claiming her civil rights were violated by the care she received.

A federal circuit court in Pennsylvania agreed, and sent the claim back to the trial court.  The nursing home was run by Allegheny county.  The county claimed that there was no basis to bring a civil rights action.  At issue in the case was the Federal Nursing Home Reform Amendments.  (FNHRA)  The estate claimed that the rules set out in the FNHRA created a civil rights claim.

The federal appeals court agreed.  It held that the statute  created specific rights.  These rights include a requirement that the nursing home must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.  The statute also articulated that nursing home residents have the right to be free from physical or mental abuse, corporal punishment,  and physical or chemical restraints used for the purpose of punishment.

 The impact of this decision remains to be seen, and it only applies to nursing homes that are run by a local, county or state agency. 

For the full text ofthe decision, click on the link below:

http://www.dsl.psu.edu/clinic/elderlaw/Third_Circuits_Opinion_in_Grammer_v%20_Kane_June_30_2009.pdf

Kraft Workers Successful in Wage Claim Class Action

     Production workers at the Kraft foods plant in Madison, Wisconsin are required to wear protective gear and clothing to ensure sanitary conditions.  They are not allowed to take these items home, and since 1985 Kraft has not paid its workers for the time it takes to get to these items, put them on and take them off. 

     1500 union workers at the Kraft plant filed suit to force Kraft to pay them wages for the time it takes to “don and doff” these items.  The workers brought claims under the Fair Labor Standards Act (FLSA) and state law wage and hours statutes (secs. 103.02 and 109.03).  The focus of the lawsuit was whether Kraft could require its workers to wear this special gear and not pay them for the time it took to put it on and take it off.  Kraft attempted to have the suit thrown out of court three times, and the court refused.

     Attorneys from Lawton & Cates negotiated a partial settlement of the lawsuit with Kraft.  After analyzing the time it took to complete the “donning and doffing” of the required gear with a team of experts, the parties agreed that the damages were in excess of $2,000,000.00.  The parties also agreed that the claim would encompass wages owed for  the two years prior to the filing of the lawsuit until the claim was resolved.  Kraft has  appealed the district court’s ruling.  The case now goes to the 7th circuit court of appeals. 

To read the district court’s opinion click here:  http://www.wiwd.uscourts.gov/bcgi-bin/opinions/district_opinions/CV/07/07-CV-300-BBC-06-16-09.PDF

Wisconsin Law With Respect to Automobile Insurance Changed Dramatically in the Last Month

Wisconsin now has mandatory insurance, has increased the minimum limits, requires Umbrella policies to offer uninsured and underinsured motorist coverage, and allows consumers access to coverage they purchased. This article will look at some of the major changes and explain how they affect you.

Mandatory Insurance. Wisconsin was one of the last states not to require drivers to have insurance. That has changed, and now all licensed drivers are required to have at least $50,000 in liability insurance starting next year.

Increased Limits. Wisconsin has increased the minimum limits of insurance from $25,000 to $50,000.  This is great news for consumers in Wisconsin. The rising cost of healthcare makes it easy to incur medical expenses in excess of $25,000.  The new law recognizes this economic reality and addresses it.

Underinsured Motorist Coverage. (UIM) There are several changes to this type of insurance that benefit you.  The first is that it is now a required coverage, meaning that it will be part of every policy and won’t have to be purchased separately.  The second change is that the insurance company can no longer tell you that you have $100,000 in underinsured coverage when they would never have to pay it.  The new definition of underinsured motorist means that if you have damages in excess of the available liability coverage, your UIM policy will pay them up to the limits of the policy.

Umbrella Policy Insurance companies used to sell umbrella policies, (high limit  policies that kick in after your regular policy is exhausted) and not tell you they did not included coverage for uninsured or underinsured motorists.  Consumers would buy the policies and think they had $1 million in coverage in case they got hurt by an uninsured motorists only to find out too late that that was not the case.  The new law requires insurance companies to offer uninsured motorist and underinsured motorist policies as part of Umbrella coverage.

Stacking Many of you own more than one car, and pay separate premiums for each car you own.  You pay a separate liability and uninsured motorist premium for each car.  Under the old law, insurance companies stopped you from using more than one of your policies to pay for an accident.  Let’s say for example that you caused an accident and as a result there were $200,000 in damages to the other person.  If you owned two cars that each had $100,000 in liability coverage, your insurance company would not let  you use both policies to pay the damages.  You would have to pay half the damages out of your pocket.  The new law does not allow the insurance company to do this.

Hit and Run The law has now changed to allow recovery if you are forced off the road by a reckless driver who never stops.  The old law required there to be physical contact between the cars before you could recover.  Thus, if you were driving down the road and someone was coming straight at you, you could not recover your damages for driving into the ditch to avoid a head-on crash unless they caught the person who ran you off the road.  The new law provides that if there is an independent 3^rd party to provide evidence that the unidentified motor vehicle ran you off the road you do not have to have physical contact between the vehicles.