Attorneys Brenner G. Webb & Peter G. Webb Have Article Published In New Hampshire Bar News

The following entry was published in the August issue of the New Hampshire Bar News, a respected publication that is distributed to attorneys across the Granite State. Attorneys Brenner G. Webb and Peter G. Webb offer their expertise on matters of Personal Injury and Workers’ Compensation.

Workers’ Compensation Law & Personal Injury Law: Framework of a Catastrophic Injury Case

By: Brenner G. Webb and Peter G. Webb

Catastrophic personal injury cases are infrequent enough that it can be helpful to review their fundamentals. A catastrophic injury can be loosely defined as a life-altering, permanent injury that often impacts a person’s ability to regain normal function and to live independently. This article will address some of the issues which comprise the framework particular to such cases.

A threshold issue for the plaintiff is the amount of applicable insurance coverage. Unlike our neighboring states, New Hampshire law does not obligate insurers to disclose the amount of available insurance coverage before suit is filed. That disclosure is not mandated until the Structuring Conference Order, which governs litigation deadlines, is approved by the Court. In instances of severe injury, insurers may be willing to disclose limits for the simple reason that the case value far exceeds the coverage, exposing their insured. Significant coverage is necessary for an adequate recovery and to cover the costs to properly prepare such a case. Such costs can be considerable and may require a significant outlay of funds over an extended period of time.

Monetary damages, of course, include the past and future expense of the care required by the injury. Assessing and valuing the future cost of providing adequate care to the client requires a high-quality life care plan. A life care plan must be prepared by someone who is competent to determine and predict the treatment and care which the client will require in the future as a result of the injury. This future care includes medication, medical care, medical supplies, equipment, custodial care, support services and therapy, housing and transportation.

An economic analysis is required to calculate the present value of the aggregate future cost of the services under the life care plan, as well as to calculate the value of any lost future earnings the client’s injury has caused.

Often, a separate but key issue is the effect that any recovery for the client will have on the client’s future eligibility for health insurance coverage. Careful consideration and coordination of State Medicaid, Federal Medicare, Special Needs Trust planning, and structured settlements can protect the client’s eligibility for Medicaid and Medicare. This analysis includes the determination of eligibility and disqualification factors, the allocation of damages, the setting
aside of proceeds to assure payment of probable future care to which the client may become disentitled by virtue of a recovery, and the most cost-effective means of funding the future care.

Reimbursement of medical providers and health insurers, as in any personal injury case, may also be a significant issue. Particularly in the instance of Medicare, diligent efforts will be required to ensure proper lien repayment in order not to jeopardize coverage.The extraordinary needs of the client may need to be met early on. In the the right case, advances against the eventual recovery should be sought as appropriate to contain the injured party’s’ damages and to avoid developments which could compound the responsible party’s culpability.

Brenner Webb and Peter Webb of Winer and Bennett, LLP in Nashua represent injured parties only in matters of personal injury and workers’ compensation. Visit www.winerbennett.com for more information.

New Marijuana Law

New Marijuana Law

Governor Sununu recently signed into law the “decriminalization” of possession of small amounts of marijuana.  Small amounts are defined as less than three-quarters of an ounce of marijuana or five grams of hashish.  Some people take this to mean that this is legalization of marijuana use.  This is not the case.  Marijuana remains illegal and there are criminal penalties for possession or distribution of amounts that exceed three-quarters of an ounce.

According to an article in the New Hampshire Sunday News on July 23rd of 2017, a commission has been established to study the possible legalization of marijuana in the future.  The reasoning is that other states have already done so and state involvement with the legal manufacture, packaging, and distribution of the substance will secure substantial revenue for the State of New Hampshire while controlling the distribution and use.  This is the same way that alcohol is currently sold by the state in a regulated manner.  If it is going to happen eventually on a national level, the reasoning is that we might as well get on the bandwagon now and expedite the process.

The commission is not short on members who oppose legalization efforts.  This is a healthy decision as it will force debate about whether or not legalization is advisable in either a practical or moral sense.  People who oppose legalization of marijuana point out that marijuana can be a gateway drug to other more powerful and life changing substances.  They worry that younger people will get access to marijuana in a way that is unrestricted and cause changes to developing minds and bodies that will have long term affects.  Lastly, they see a slippery slope of state involvement, already deeply involved with liquor sales and lottery revenue, that will further erode the moral basis standing of government.  If selling these substances is morally acceptable, why not other forms of illegal activities?

It is obvious that the state’s change in legal treatment of marijuana began with the approval of medical marijuana.  No different from other drugs that are available with a prescription, the value of THC (the active ingredient in marijuana) to treat certain afflictions is both beneficial and medically superior to some other drugs.  Cancer patient’s post-chemotherapy have been known to do quite well with marijuana use to overcome nausea and lack of appetite.  Glaucoma patients report many beneficial effects of marijuana use when taken in accordance with doctor’s orders.  Chronic pain sufferers find that marijuana use is far more effective and less disruptive to the other human systems than opioids in treatment of their chronic pain.

The new law decriminalizing possession of small amounts moves the question to a different level.  In this situation, people who use marijuana recreationally are not going to be charged with a crime.  Though the possession is still illegal, it will not be considered an offense punishable by incarceration unless the amount exceeds three-quarters of an ounce or five grams of hashish.  This would seem to invite the use of marijuana for recreation by virtue of the state’s non-action.  Advocates feel that the decriminalization simply invites the next step of legalization.

The Sunday News article points out that there are strong voices on both sides of the issue.  Our state is not necessarily ready to take the legalization move at present.  The effects of legalization in states such as Colorado and Oregon would need to be studied and debated.  A review of what happened during prohibition would be a good place to start in examining the effect that legalization of marijuana might have on New Hampshire and our American society in general.  The best approach toward deciding the issue is a slow process that considers all different approaches and eventually comes to a conclusion that is best for our citizenry.  All age groups should weigh in and make their views known before the state debates a bill and makes a decision.

By: Kent Barker

Invisible Insurance

When you bring suit to recover for injuries caused by someone else, you sue the responsible party.  You may not name the responsible party’s insurance company in the suit.  In fact, if reference is made in the presence of the jury to the fact that there was insurance, a mistrial would be declared.

The judicial system routinely praises the wisdom and sanctity of the jury. Yet somewhere along the way, it has convinced itself that a jury will award money irresponsibly if it finds out that there is insurance coverage. What the system does in response is bend over backwards to give the jury the false impression that a verdict for an injured party must be paid out of the pocket of the responsible party.  That is virtually always untrue in personal injury cases.

To promote that falsehood is to mislead the jury. Luckily, I don’t believe that our jurors are fooled. They aren’t naïve. They assume that there’s insurance.  And the record is clear that that doesn’t cause our juries to act irresponsibly.

Loose Lips (and fingers) Sink Ships

Dear Client:

Please be forewarned that your opponent in a lawsuit will very interested in your social media postings.  You have to assume that the other side will be combing through whatever there is out there in your name to pick up what they can to undermine your case.  This includes postings on:  Facebook, MySpace, Instagram, LinkedIn, Twitter, Google+, Tumblr, Flickr, Pinterest, VK, YouTube, SnapChat, Foursquare, Yelp, WeChat, WhatsApp.

We all sometimes get carried away at our keyboards.  However, you cannot afford to if someone out there is filtering your postings to gather information to use against you in a pending legal dispute. Assume that if you post, they will see it.

CAI New England Annual Expo on 10/24/15

Attorney Gary Daddario and his team will participate in the 2015 CAI New England Annual Expo at the Burlington Marriott in Burlington, Massachusetts on October 24, 2015. Attorney Daddario will also be teaching a seminar at the event. Additional details will be provided at a later date.

04/09/2015: Winer & Bennett Successfully Defeats FACTA Class Certification

Winer & Bennett partners Dave Pinsonneault and John Edwards obtained a favorable ruling in the United States District Court for the District of New Hampshire on a motion to litigate claims as a class action under the Fair and Accurate Credit Transactions Act of 2003 (“FACTA”). The case was dismissed earlier this year.

Click here for more information about FACTA and how credit card merchants can protect themselves.

FACTA COULD DARN NEAR KILL YA (A warning to businesses, retailers and restaurants)

The Fair and Accurate Credit Transactions Act of 2003 (“FACTA”) is intended to prevent a criminal from using a customer’s credit card information found on a discarded receipt.

Consequently, FACTA sensibly requires businesses to obliterate all but the last four digits of a customer’s credit card account number and to remove the card’s expiration date from receipts given to their customers.

So, what is the problem for businesses that accept credit cards?

Businesses rely on point of sale hardware (the machine the card is swiped through) and software to process credit card payments (a “POS” system). POS vendors, after 2004, probably sold systems that were FACTA compliant. However, a number of businesses own pre-2004 POS systems that haven’t been updated to make them compliant. It probably doesn’t even occur to these business operators to update a POS system unless it stops working properly. Therein rests a potentially very expensive surprise.

You must first understand that Congress intended the general public to enforce FACTA’s provisions. It did so by requiring a court to award minimum damages of up to $1,000, plus attorneys’ fees, if a customer can prove that the business knowingly failed to follow the law. In certain cases a customer can also recover punitive damages.

Lawyers who bring lawsuits under FACTA frequently attempt to do so as a class action, which, if successful, can result in your business suffering catastrophic damages.

The best way your business can protect itself against these claims is to make sure that the software that processes payments by credit cards complies with FACTA. It also makes sense to make an agreement with your POS vendor to advise you when there are new regulations. In addition, you should speak with your insurance agent, broker or consultant about acquiring insurance for losses that relate to Internet transactions.

By David K. Pinsonneault

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