March 1998

Vol.2 – No.6

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Medicare Compare provides Medicare beneficiaries with information to compare Medicare managed care plans in their areas. Beneficiaries may look up plans by zip code, state or HCFA region, and compare a particular service, premiums or all services provided. The information is current for new plan benefits periods beginning January 1, 1998.

What’s New in Consumer Law?

Class action barred by arbitration clause. Senior citizen homeowners alleged that the Defendant deceived them by misrepresenting the interest rate and finance charges of their reverse mortgages and burying the arbitration clause in 25 pages of fine print. The Ninth Circuit dismissed the case for lack of jurisdiction because the class action was barred by the arbitration clause under the Federal Arbitration Act. However, after the Plaintiffs’ claims have been individually arbitrated, they may then file a class action.

What’s New in Debtor/Creditor Law?

Collection letter may be sent after debtor requests no further contact. After being contacted several times by a collection agency, the debtor sent a letter asking it not to contact him anymore. However, the agency sent another letter asking him to “select one of the following payment arrangements” and stating, “This is an attempt to collect a debt”. The Federal Debt Collection Practices Act (FDCPA) requires that once a debtor asks the collection agency to stop, it can contact him only to say that it is: (a) giving up; or (b) pursing a “remedy” such as a repossession, garnishment or a lawsuit. The U.S. Court of Appeals, Sixth Circuit ruled that an additional letter can also qualify as a “remedy” under the FDCPA.

What’s New in Divorce/Family Law?

Court chooses children’s religion. A Jewish mother and Christian father agreed before they were married that their children would be raised as Jews. When they divorced, the father began taking the children to Christian services and repeatedly attacked the boy’s Jewish faith. The divorce court’s order forbade the father from taking the children to church or Sunday school. The Massachusetts Supreme Court ruled that a divorce court can settle a dispute over a child’s religious upbringing if the dispute is causing “substantial harm” to the child. The order did not “foster an excessive government entanglement with religion” because the divorce court was merely trying “to limit the emotional harm to the children caused by exposure to negative messages presented by the (father’s) religion”.

What’s New in Estate Planning Law?

Estate Planning in the 21st Century. Estate, financial and medical planning will dramatically change by the 21st Century. Not only are the laws undergoing significant changes, but also there have been revolutionary changes in medical technology, family relationships and public awareness. With proper planning, you can preserve your home and retain control of your medical and financial decision-making. The top ten reasons for this change are:

  • Demographics — The two major demographic factors affecting estate planning in the 21st Century will be increased life expectancy and maturing of the baby boomers. It is becoming more and more common for four or five generations to be living at the same time. A child born in 1996 could expect to live 70.6 years, about 29 years longer than a child born in 1900 does. The major part of this increase is due to reduced death rates for children and young adults.
    The most rapid increase in persons 65 or older is expected between the years 2010 and 2030, which the “baby boom” generation reaches the age of 65. By 2030, there will be about 70 million seniors, more than twice the number in 1996. People 65+ are projected to represent 13 percent of the population in the year 2000 and 20 percent in the year 2030.
  • The nontraditional family — The “traditional family” has become a thing of the past. Divorces, remarriages, unmarried couples and blended families are becoming the norm. Wives are no longer at home to care for elderly relatives. Traditional types of estate planning do not work for nontraditional families. Prenuptial agreements, living trusts, testamentary trusts and property ownership agreements are necessary.
  • Nursing home care costs
  • Increase in disabled children
  • Increased use of the Internet
  • Transfer of wealth and business to the younger generation
  • Elimination of federal and state estate and gift taxes for most people
  • New IRAs
  • Medical decision-making
  • Powers of attorney and guardianships

What’s New in Health Law?

HMO sued for bad faith. Public employees, self-employed persons or employees of a charitable organization can sue HMOs, which refuse to pay benefits, for “bad faith”. An HMO lacked the expertise to treat a 13 year old girl with an eating disorder. She was referred to an in-patient program at a nearby hospital. Under the terms of the plan she was entitled to up to ten weeks of in-patient psychological treatment. However, after only six weeks, the HMO stopped paying and the girl was discharged from the hospital. Her weight dropped rapidly from 95 to 74 pounds. She had to be readmitted two months later. The Plaintiff sued, claiming that the decision to stop payment after only six weeks was made in bad faith and that she had been harmed by her early release from the hospital. The Wisconsin Supreme Court ruled that to prevail on a bad faith tort claim against an HMO, a Plaintiff must plead facts sufficient to show: (a) the absence of a reasonable basis for denial of a claim for out-of-network coverage or care under the subscriber contract; and (b) that the HMO, in denying such a claim, either knew or recklessly failed to ascertain that the coverage or care should have been provided. There have been similar rulings in Colorado and Ohio.

What’s New in Landlord/Tenant Law?

New HUD rules on civil penalties. HUD has proposed a new rule which interprets the Fair Housing Act to allow Administrative Law Judges (ALJs) to assess a separate civil penalty for each of multiple acts involving housing discrimination. Under the Act, housing discrimination violations carry maximum civil penalties for first-, second-, and third time offenders. The proposed rule would interpret the Act to clarify that, in a given case, an ALJ may assess more than one maximum civil penalty against a respondent in a given case, where the respondent has committed separate and distinct acts of discrimination.

What’s New in Personal Injury Law?

Rape victim can sue under Federal Law. A college freshman that claims that she was raped by two of her classmates can sue them for damages and attorneys fees under the federal “Violence Against Women Act”. The Act was intended to apply to victims of rape, stalking and sexual harassment. However, it has been used a leverage in divorces involving domestic violence (see Vol. 1, No. 5). The Act requires a Plaintiff to prove that the Defendant committed a crime or violence that was motivated by gender. A “crime of violence” means a felony involving actual, attempted or threatened use of physical force or a substantial risk that physical force would be used. However, a Defendant can be sued whether or not he or she has been charged with the crime (Fourth Circuit). U.S. District Courts in Connecticut, Iowa, New York and Tennessee have also upheld the act.

What’s New in Real Estate Law?

Failure to reveal flooding is fraud. Commercial property buyers can sue sellers for fraud when they fail to reveal that the property had been flooded. The fact that the buyers purchased the property under an “as is” contract did not bar their claims. (Michigan Court of Appeals)

Neighbors of crack house awarded damages. Two men sued their next door neighbor claiming that drug sales at her house lowered the value of the former public library that they were restoring as a home. The court awarded $35,000 in punitive damages, $35,000 in attorneys fees and other damages and permanently enjoined the property owner from running a “crack house and any activity that disturbs the peace and tranquility to which every law abiding citizen is entitled”. (DeKalb County Court, Georgia)

What’s New in Small Business Law?

Employee awarded punitive damages. A bank employee who repeatedly complained to management that he was not being paid overtime sued the bank for violating the Fair Labor Standards Act. The bank then fired him for removing “confidential documents” from his desk at work. The employee claimed that he was merely complying with the bank’s demand for discovery documents and that he was really fired in retaliation for his complaints about the overtime policies. The Act defines “retaliation” broadly to include a discharge of any employee who has “filed any complaint, or caused to be instituted any proceeding… or is about to testify in any such proceeding”. A damage provision, which also applies to lawsuits under the Age Discrimination in Employment Act and the Equal Pay Act, allows “such legal or equitable relief as may be appropriate”. The employee argued that “appropriate” relief could include punitive in addition to liquidated or “double” damages. The court ruled that punitive damages are available under the Act. (U.S. District Court, Massachusetts)

Injured Victims’ Rights

The Friedman & Ranzenhofer, P.C. Ten Point Pledge to Accident/Injury Clients is:

  • To communicate with you in plain language that is easy to understand.
  • To promptly return your telephone calls.
  • To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, P.C. does not accept every accident case.
  • To have your case personally handled by an attorney.
  • To keep you informed of the progress of your case at all times.
  • To show you the personal care, concern and attention which has been the hallmark of our law firm since 1955.
  • To not handle your case in an “assembly line” fashion.
  • To accommodate the needs of you and your family during the handling of your case.
  • To vigorously protect your legal rights.
  • To never release your name to the media after your case has been completed, except with your written permission.

Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, the New York Trial Lawyers Association, the New York State Trial Lawyers Association and the Erie County Bar Association Negligence Committee.

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