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.

By:  Peter G. Webb

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What is my Personal Injury Case Worth?

A personal injury lawyer is often asked early on what the value of a case is. I sometimes respond by asking the client what a car in our parking lot is worth.  A client naturally asks how old the car is, what shape the body is in, what the make and model are, what the mileage is, whether there are any mechanical problems, etc.  People are familiar with the buying and selling of cars and they instinctively know that you have to have the specs first.

The value of a personal injury claim is also determined by the specific facts of the case. Those facts have to be known before a valid value can be assigned to the claim.  Not all cases involving a leg fracture, for example, have the same value.

The value of a case will be influenced by, among other things:

  1. The severity of the injury;
  2. The total amount of the medical expense;
  3. The extent to which the injury impacts normal activities;
  4. The amount of any past and future wages lost as a result of the injury;
  5. The magnitude and duration of the pain the injury causes;
  6. The emotional consequences of the physical injury;
  7. The future impact of the injury.

An experienced lawyer will tell you at the outset that an accurate valuing of your claim can’t be made until there is a complete understanding of the full reality of the injury. That full reality is what a jury will be asked to value when it decides what in a particular case constitutes “full, fair and adequate compensation.”

By:  Peter G. Webb

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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.

Seasons Change, Feelings Change…How About the Rules?

Kudos if you caught the Expose song reference in the title. I’m actually not sure how it spilled out of my head. It is, however, appropriate for this writing. Over the years, I’ve seen that certain issues at associations claim popularity in a cyclical fashion. Recently, I had occasion to discuss “rules” several times.

Taking a brief step back, one may wonder why a board would invest time and effort making or enforcing rules. First, it is a part of the board’s fiduciary responsibilities in operating the condominium. Some set of rules is also necessary to secure the consistency of the architectural appearance as well as the rights and obligations associated with residency in the community. These are among the benefits that owners expect to receive when electing to join a condominium association.

My philosophy on making rules is that rules should be created to address situations that are reasonably expected to occur. In essence, provide the guidance that people will need in order to live at the association. Unnecessary rules tend to lead away from the association’s goal of community harmony and to invite precisely what boards wish to avoid, namely disputes over what constitutes acceptable conduct. Certain “general” rules are applicable at most, if not all, associations. For example, rules pertaining to taking care of units, being courteous to others, avoiding misuse or damage of common areas, etc. For more “particular” rules, review the association’s layout and amenities (e.g. separate, townhouse or “garden style” units, decks, pool, clubhouse) and style a set of rules as necessary to cover the situations that are expected to occur on the property.

When making rules, two primary areas of concern pertain to the authority for the rule and the substance of the rule. I created acronyms to cover the crucial points. In terms of authority, you want to “CAST” a rule. The explanation is as follows: “C” is condominium document authorization (do the documents provide authority to regulate this issue); “A” is administrative in nature (boards make administrative rules while those substantively impacting ownership rights are made via amendment to the condominium documents); “S” is statutory authorization (does applicable law allow for this type of rule); and “T” is trustee approval (ultimately the board must formally vote to adopt the rule).

In terms of substance, you want the rule to be in “FORCE”. This acronym plays out as follows: “F” is fair (rule applies equally to all segments of the community); “O” is observed (circulate and publish rules, distribute them and record them if possible); “R” is reasonable (a reasonable rule will invite compliance while unreasonable rules invite challenge); “C” is clear (clear rules invite compliance while vague rules invite confusion); and “E” is evenly-applied (enforcement of the rule is undertaken consistently).

For enforcement of rules, it is helpful to consider two main procedural components. I refer to these as the “in-house” process and the “legal” process. The in-house process begins at the association. Board members may either observe a violation or receive a complaint regarding one. The board should conduct some amount of investigation to ascertain the circumstances. If it is determined that a violation did, in fact, occur, then the board should issue a warning (or fine depending on the association’s policy). If an owner seeks an opportunity to be heard on a violation, it is recommended that the board provide such an opportunity. In doing so, the board may learn important additional information about the matter. It also avoids a later argument, if the dispute continues, that the board refused to allow the accused to communicate. After hearing from the owner, the board should place the final decision on the matter in writing. Yes, this does create a record. However, a record of a decision made on an appropriate basis may be used to counter any future allegations that the board’s decision was rendered on an improper basis.

If a unit owner refuses to remedy a violation or commits new/multiple violations, the association may reasonably begin the “legal” process. Once referred to legal counsel, the process is relatively straightforward. At the board’s discretion, a “warning” letter may issue. The next step, in terms of severity, is the issuance of a “cease and desist” letter. This letter cites the problematic conduct, evidence of it and the applicable restrictions that the misconduct violates. This letter also describes the consequences for failure to comply. If the cease and desist notice does not resolve the issue, the association may institute litigation. Relief sought in the litigation could be both injunctive (order regarding behavior) and financial (award of expenses and legal fees).

The appropriate time for changing rules at an association is a subjective decision. From time-to-time, like the state or federal law, the association rules will become outdated. Changes in societal norms may require updating of rules, while changes in the value of the dollar may require updates to the fine structure. Another opportune time for rule change is upon a change in circumstances at the association. Examples include the addition or removal of amenities or a transfer of responsibilities through events such as adoption of limited common area agreements.

Properly managed, rules can be a positive part of the association experience. Boards can responsibly satisfy their roles with respect to rules through consistent efforts and appropriate use of legal counsel.

By Gary M. Daddario

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Conservation Measures: Assisting the Granite State with Going Green

As a condominium practitioner representing associations in both MA and NH, I often find it interesting to compare differences in the laws of the Commonwealth and the Granite State. While I believe that most would readily lean towards NH as the state with the edge on natural resources and beauty, in terms of their respective condominium statutes MA has a provision that takes an edge in the “green” department. Accordingly, the New Hampshire legislature could serve the conservation efforts of the state by lifting a provision of the Massachusetts Condominium Statute and adding it to the New Hampshire Condominium Act.

In particular, M.G.L. c. 183A, §6(a)(ii) provides that “the organization of unit owners may assess to each owner the direct cost of any energy conservation device installed in a unit, not already separately metered for water and utilities, including but not limited to the installation of separate water meters, low-flow toilets and showerheads, faucet aerators, windows and storm windows….” As is apparent from the plain language of the statute, this provision provides a powerful means of associations making significant conservation efforts. Separate water meters, low-flow toilets and showerheads and faucet aerators could significantly reduce water usage in units. Quality windows and storm windows could significantly improve a unit’s efficiency and thereby reduce the amount of heating resources necessary to maintain an appropriate temperature during the winter. Afforded the same authority with respect to such matters, the governing boards of New Hampshire’s associations could take steps to ensure the conservation of water and heating utilities.

Other common forms of conservation could also provide associations with significant reductions in utilities. For example, energy efficient bulbs hold the potential to save sizable amounts of electricity at associations. Many associations have common area lighting. For some, such lighting may exist in large quantities around exterior grounds. For others, such lighting may appear along the hallways of multiple floors of buildings containing “garden” style units. Due to the volume of bulbs used by many associations, the switch to energy efficient bulbs would likely have a large impact. Associations might even tangentially benefit from this change by saving on maintenance and replacement bulb charges since many energy efficient bulbs claim to require bulb replacement on a much less frequent basis than traditional bulbs.

While conservation efforts are laudable, association boards contemplating such measures should exercise caution. The introduction of new components to the condominium (e.g. solar panels, rainwater runoff collection system, etc.) could require a formal approval process including a vote of the community. It is recommended that boards share ideas in this regard with legal counsel in a proactive manner. This will allow the association’s attorney the opportunity to advise the board on how to properly implement new components.

Sidebar- Legislative Update

A quick New Hampshire legislative update- HB 1115 passed and was signed by the Governor. Effective January 1, 2015, this provision clarifies that a unit owner’s Homestead Declaration does not protect against an association’s lien for unpaid condominium assessments.
By Gary M. Daddario

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Saving Money on Insurance, Or Are You?

Insurance companies are constantly finding new ways to entice potential customers to shop for insurance.  One of the latest tactics is to permit shoppers to “pick their price.”  This marketing scheme is a trap for the unwary.  Here’s why:

Nearly everyone wants to pay less for their insurance.  The less we pay them, the more we have in our own pocket.  The problem is that by setting a specific price point, one that is almost certainly less than what you currently pay, the insurance company is enticing you to focus on price rather than coverage. That is where the trick lies.  By showing you what you could save rather than an “apples to apples” comparison of coverage, many are lured into thinking that they are getting a great deal when, in reality, you are only getting a policy with lower coverage and limits.

This is particularly problematic today where many of us shop online rather than going to an insurance agent who can explain the various coverages and your personal needs.  Considerations might include the type of vehicle that you drive, your line of work, your personal estate, whether you have a family, or even your personal driving habits.

In New Hampshire, the lowest available liability coverage is $25,000.  This level of liability coverage is irresponsibly low.  Underwhelming limits like these not only endanger your personal financial well-being, but also the well-being of every other driver and passenger on the road.  We all know just how expensive medical treatment is in the modern world.  It doesn’t take much to incur medical bills alone in excess of $25,000.  When liability limits are not adequate, you will then be responsible personally for the remainder.

So, the next time you are intrigued by the thought of saving money on your insurance, do your homework and speak with someone that can explain it to you.  In the end, we will all be far better off spending a little extra on coverage and limits that adequately protect us, our families, and everyone else on the road.

By: Brenner Webb

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DIY’ers

Do it yourselfers. Ya gotta love’em. Self reliance is, after all, a fundamental American trait. Nevertheless, I have to shake my head when a proud but naïve soul brings in a mismanaged vestige of a once promising case, and wonders if we might offer a little advice. Usually, it’s like trying to revive a chronically under-watered and over-exposed house plant. The poor thing is just too far gone. A good outcome takes more than trusting that truth will prevail.

If you get experienced counsel in early on, your case will be developed and managed step by step by someone who knows how it is done, what’s important, and what not to do. You would probably hire your lawyer for a personal injury claim on a contingent fee basis, so the attorney’s fees will be percentage of the recovery ultimately achieved, whatever and whenever that might prove to be. Since it will cost you the same either way, you’d be well advised to get the lawyer in sooner rather than later.

Most of us would not try to repair our car’s transmission ourselves. It’s also not a good idea to try to handle your personal injury claim yourself.

By: Peter G. Webb

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Decriminalization of Adultery

As of January 1st of this year, New Hampshire repealed RSA:645:3. This was an antiquated and unenforced law which made adultery a class B misdemeanor. However, adultery remains a valid fault ground for divorce in New Hampshire. Now, an inquiry into such infidelity cannot be side-stepped by exercising the Fifth Amendment privilege against self-incrimination, or “taking the 5th.” Therefore, in the context of a divorce proceeding, the issue of adultery will remain a relevant topic for the foreseeable future.

Our firm has been advocating for men and women dealing with the dissolution of marriage for more than 55 years. If you or someone you know is in need of a divorce attorney, call Winer and Bennett, LLP today at (603) 882-5157.

By: Brenner G. Webb

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Legislative Update

A quick note for New Hampshire- by way of legislative update, is that HB 1115 has passed and been signed by the Governor. Effective January 1, 2015, this new law makes clear that a Homestead Declaration filed by a unit owner does not afford any protection against an association’s lien for unpaid condominium assessments.

By: Gary Daddario

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New Hampshire Benefits Through CAI New England Membership: Explaining the Expo

As many in the Granite State are aware, we have joined forces with and have membership in the broader chapter known as CAI New England. Among other benefits, New Hampshire members will now enjoy the programs and events of CAI New England. One of the liveliest, most informative and well-attended events is the Annual “Expo”. For the benefit of those who are new to the New England Chapter, I thought I’d discuss the expo, its importance and why it is so helpful for association members/board members to attend.

I note at the outset that the annual expo has, for many instances and locations, turned into the type of industry event that maintains all the hustle and bustle of a small city. Parking lots at hosting hotels tend to fill on expo day, as do the hallways, exhibit areas and seminar halls. With the addition of the State of New Hampshire in the New England Chapter, there is now an additional expo that occurs at a New Hampshire location. This year’s “NH Expo”, the first of its kind as part of CAI New England, was well-attended and enjoyed by all. I look forward to seeing the growth of the NH Expo and to one day seeing the “small city” that it might become. Since growth depends on New Hampshire members understanding the benefits associated with attendance, I will describe some of those benefits here.

First, the annual expo offers a virtually no-cost education. Attendees may select from multiple seminar offerings taught by industry leaders. Unit owners, whether members of the association or the governing board, may select a topic (or more than one) of interest and learn all they need to know. Most seminars also include ample question and answer time. This allows attendees to obtain some immediate and free advice on their pressing issues.

Next, the expo offers “one-stop” shopping. Regardless of what type of service your association may need, there is a vendor of this type (probably three of them) with a booth at the expo. This affords attendees the ability to comparison shop under one roof and at one time. Further, many organizations send high-ranking personnel and company owners to the expo. This allows attendees to meet and speak with the company leaders and to gauge the vendor(s) that represents the best fit for their community.

In addition, the expo offers attendees the opportunity to socialize and network with members of other condominium associations. At first blush, you may wonder such activity would be important to your association. The answer is that many associations face similar challenges. To the extent that you can speak with members of an association that have already tackled the issue you presently struggle with, you may learn a lot from their experience. Attendees may even serve as great references, to each other, relative to experiences with vendors providing services to condominium associations.

Membership in CAI provides the benefit of discounted rates to CAI-sponsored events. In addition, membership includes a subscription to Condo Media magazine. Each month, industry professional fill the pages of this magazine with articles relevant and helpful to associations.

On a light note, the expo is, in a way, a bit like a shopping spree for those interested in free giveaway merchandise. From light up bouncy balls, to foam toys and from plastic and rubber figures and shapes to key chains, noise makers and Frisbees, a parent can return from the expo a hero with a full bag of treasures to distribute. Giveaway items even benefit adults to the extent of flashlights, tiny tools, coffee mugs, eyeglass cleaners and the like. It is always fun to fill a bag while you make the rounds. I hope to see you more of you milling about the expos in the future!

By: Gary Daddario
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