Month: May 2018

Beware of “Daycare” Traps in Your Homeowner’s Policy

Homeowner’s PolicyMany families in Nashua, New Hampshire earn a few extra dollars providing childcare in their homes to a friend’s child or perhaps for a grandchild. The pay for this work is often minimal for the value of the services performed. However, if there is an injury, despite what you may assume, your homeowner’s insurance policy may not provide you with any financial coverage. In fact, the insurance company will argue this is “child care services.” This little known policy exclusion can expose you to being personally liable for these injuries in your home/apartment and you can potentially owe thousands of dollars in damages. Again, many people in New Hampshire assume that because somebody is injured in their home that their homeowner’s or renter’s insurance coverage will take care of it. This is, in fact, not true in some childcare instances.

For example, your adult daughter drops off your 3-year old granddaughter as she has returned to work for the last several months and you are watching your granddaughter each work day. If your granddaughter was injured, your renter’s or homeowner’s coverage (despite providing for coverage for injuries to others) is likely inapplicable because of exclusion language for “providing child care on a regular basis.” Most people believe that this policy language was only meant to cover licensed daycare facilities, babysitting multiple children, or a formalized daycare arrangement. Several courts around the country have upheld a denial of insurance coverage for young children who were receiving “babysitting” by a friend /relative who was only receiving token payments and the child was the only person being watched. This “child care services” exclusion may now be a standard provision in State Farm Homeowner’s Insurance policies.

In conclusion, you should check with your insurance agent if you are more than “occasionally” watching any child in your home; this is regardless of whether you are being compensated or not. There may be additional coverage you can purchase. If you are in this unfortunate situation and your insurance company denies the claim, you should consult a lawyer as there may be a means to challenge it. However, checking with your Nashua insurance agent is the best precaution so as to avoid this unfortunate situation which endangers your home and other assets.

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.

Nashua Car Accident Client Asks: My Health Insurance Paid My Medical Bills, Am I Still Entitled to a Settlement?

Nashua Car Accident ClientA personal injury plaintiff (i.e., someone injured by another person’s negligence) will have three basic categories of damages: medical bills, lost wages, and pain and suffering. And as explained in a previous blog, damages for pain and suffering are typically related to the amount of medical bills a person has incurred. For example, a person with $10,000 in medical bills might receive between $5,000 and $15,000 in additional compensation for pain and suffering.For that reason, many of our clients wonder about the value of their case where they’ve had little to no out-of-pocket costs due to their health insurance. Perhaps you’ve only paid co-pays for your medical treatment, or a relatively small deductible.

The bottom line: you are NOT limited to simply recovering your out-of-pocket medical costs. Rather, you are likely entitled to recover the full value of the amount charged to your health insurance. This is due to a principal known as the collateral source rule, which states that a jury is only permitted to know the billed amount of the medical bills related to the injury, not the amount paid by the plaintiff. Otherwise, a negligent actor would be able to “get away” with their negligent behavior simply because the person injured happened to have health insurance.

There is another wrinkle to the equation, however. Health insurance companies have a so-called “subrogation lien” on any proceeds an injured plaintiff recovers. That means that the health insurance company has a right to be paid back for the medical bills they paid on your behalf. If they didn’t, the injured person would be getting a double benefit: all their medical bills paid by health insurance, and all their medical bills paid by the responsible party. That said, insurance companies, typically have agreements with doctors and hospitals to pay a reduced rate for medical services. So a health insurer’s “subrogation lien” will actually be an amount considerably less than the face value of the medical bills.

AN EXAMPLE

That’s a lot of moving parts, so let’s look at an example. Peter was driving in Nashua and was rear-ended by another driver, who was distracted by his cell phone. That driver (the “defendant,” or “tortfeasor”) had a $100,000 car insurance policy. Peter sustained a broken arm due to the accident. He was transported to the emergency room via ambulance, received x-rays and an MRI, had to wear a cast for several weeks, and underwent a course of physical therapy. Ultimately, he made a good recovery.

Luckily, Peter had a good health insurance policy. The medical bills totaled $10,000. But his total out-of-pocket cost through co-pays and deductibles was only about $1,000.

The hospital and physical therapist billed Peter’s health insurance the full amount of $10,000. However, due to contracts with the medical providers, Peter’s health insurance paid only $5,000 to satisfy those bills.

Peter decides to speak with a personal injury attorney, who agrees to handle his case on a contingency fee basis (no upfront cost to him). Although Peter’s out-of-pocket cost is only $1,000, his attorney will seek the full value of his medical bills ($10,000), plus damages for pain & suffering (and lost wages, if applicable). Peter’s attorney collects Peter’s bills and records and makes a demand on the other driver’s car insurance company. After some negotiation, the attorney settles the case (with Peter’s permission) for $25,000.

Per their contingency fee agreement, 1/3 of that $25,000 constitutes the fee for Peter’s attorney (any expenses, such as the cost of obtaining medical records, will also be deducted). Of the approximately $16,500 remaining, Peter is required to repay his health insurance company for their subrogation lien. As explained above, although the total medical bills are $10,000, his insurance company only paid $5,000, so that is the amount of their lien. Peter’s attorney is also able to negotiate with the health insurance company, and they agree to accept $3,500 to settle the lien. In sum, Peter’s take-home settlement is $13,000, despite only incurring $1,000 in out-of-pocket costs.

This example is presented for educational purposes only. Actual settlement value (and indeed, whether a case will settle or be successful at all) depends on a multitude of factors. For example, whether the other driver had car insurance, how severe the injuries were, whether the injury had permanent effects, how long the recovery was, how painful the injury was, the insurance adjuster on the other side, the amount of the health insurance lien and the ability to negotiate it, and importantly, how clear the other person’s negligence was, and whether the plaintiff was negligent in any way.

At Welts, White & Fontaine, our attorneys have decades of experience negotiating personal injury settlements. If necessary, we aren’t afraid to take cases to trial. We work with you to decide on a settlement goal based on the particular circumstances of your case.

Contact us today for a free consultation. We handle most personal injury cases on a contingency fee basis: you only pay attorney’s fees if you win.

Author: Israel F. Piedra

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.

Will Several Significant Changes To New Hampshire Laws Affect Your Estate Planning?

estate planningEffective January 1, 2018, NH adopted a version of the Uniform Power of Attorney Act. One of the more important provisions under the new law is that banks and financial institutions are prevented from arbitrarily refusing to accept powers of attorney. Bank and investment company refusals to accept powers of attorney are an increasingly common occurrence. Under the new law if a third party refuses to accept a notarized power of attorney, the agent can obtain a court order mandating the acceptance. In such a case, the third party will be required to pay the attorneys’ fees associated with obtaining the court order. The provisions of the new law apply to powers of attorney signed before, on or after January 1, 2018.

Qualified Dispositions in Trust Act

In late 2017, the Qualified Dispositions in Trust Act was repealed. This repeal has significantly changed the creditor protection that a grantor/beneficiary can obtain under a self-created, irrevocable asset protection trust. Under the old law which was in place since 2009, an individual could transfer property to an irrevocable trust that provides asset protection but still benefit from the property transferred to the trust. Under the new provisions, a trust offers asset protection for a grantor who is a beneficiary, provided that the trust includes a spendthrift clause, and a condition that the grantor cannot make distributions to him or herself.

Probate Filings

Finally, in June 2017, all probate filings for new estates are required to be filed on-line. All routine probate filings are now processed through a centralized filing center in Concord, rather than at the county Circuit Courts. Heirs have the option to sign up on-line to receive all probate filings via email directly from the Court.

If you’re interested in talking with the attorneys at Welts, White & Fontaine PC about estate planning, including wills and trusts, please contact us by clicking here or by calling (603) 883-0797. Welts, White & Fontaine is Nashua’s largest law firm and serves the legal needs of both individuals and businesses in towns such as Amherst, Milford, Hudson, Brookline, Windham, Hollis, Merrimack, Litchfield, Bedford, Londonderry, Pelham, and, of course, Nashua.

Author: John S. Polgrean

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.

Mechanic’s Liens In New Hampshire

Mechanic's Liens In New HampshireDespite the common-day meaning of “mechanic” in this title, mechanic’s liens in New Hampshire do not involve the repair of your automobiles at the local garage in Nashua. Instead, mechanic’s liens afford a legal remedy to people who have not been paid after performing labor or furnishing materials to construction projects ranging from small repairs to a home to the largest of commercial projects. This legal remedy has been available in this State since the middle of the 1800s, recognizing the value of labor and materials and the priority attributed to these activities. The remedy provided is a lien on the real property benefitted by the labor or materials.

Mechanic’s liens must be recorded at the registry of deeds

Once recorded, mechanic’s liens encumber the value of the property and act as security until the laborer or material supplier is paid and the lien discharged. Mechanic’s liens must be recorded at the registry of deeds in the county where the real property is located within 120 days after the services are performed or the materials furnished. A mechanic’s lien is obtained for recording in the registry of deeds by filing a lawsuit against the real property owner (and contractor, if applicable) alleging the amount due for the labor or materials along with a petition to attach real property. If the petition to attach real property is approved by the court, a writ of attachment is prepared and the lawsuit, petition, and writ are then recorded in the registry of deeds.

After the mechanic’s lien is recorded, the property owner is notified and given the opportunity to request a hearing to tell the court why the mechanic’s lien should not be placed on his or her property. Whether or not the mechanic’s lien stays in place or is removed as a result of the hearing, the lawsuit continues on like any other lawsuit where the plaintiff is seeking a judgment from the court against the property owner and contractor, and the owner and contractor can challenge the laborer’s and materials supplier’s claims and potentially bring their own claims against the laborer and materials supplier (possibly for defective labor or materials). If the laborer or materials supplier wins the lawsuit and obtains a judgment from the court, the mechanic’s lien (assuming it was not previously removed) will remain recorded at the registry of deeds until satisfied. If the property owner and contractor prevail in the lawsuit, the laborer or materials supplier will be required to discharge the mechanic’s lien.

A mechanic’s lien is a very powerful tool to aid the laborer or materials supplier to get paid, but the process is also well known for its complexity and technicalities, most often requiring the assistance of an attorney who practices in this area of law. Please contact us at the attorneys at Welts, White, & Fontaine by clicking here or by calling (603) 883-0797 to assist with your matter if a mechanic’s lien becomes necessary in your business.

Author: George Thompson

This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.

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The Law Offices of Welts, White & Fontaine, P.C.
29 Factory Street Nashua, New Hampshire 03060
Telephone: (603) 883-0797 | FAX: (603) 883-8723 | office@lawyersnh.com

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