Our firm recently litigated a case where a warehouse was damaged by a tornado. The damage was estimated to be around $1 Million. During the course of the investigation of the claim, the insurance company sought certain information from the insured and the insurance agent that procured the policy. The insurance company then denied coverage after it determined that the information contained in the application was false.
What transpired was a year-long court battle in which the insurance company, insurance agent, and insured argued over which party was at fault in issuing the policy and in completing the application.
It is important that any time you sign an insurance application that you read it carefully. Even if an agent completes the application, by signing you are attesting to the truthfulness of its contents. This is vital to any insurance policy because insurance companies can avoid paying a claim if they later determine that the application was incorrect. Particularly in large loss claims, insurance companies will comb over every piece of your application.
However, because you sign an incorrect application does not mean you have no legal remedy. First, an insurance company may not be able to void a policy if it issued the policy prior to you signing an application. Secondly, an insurance agent may also have a duty to assist you in acquiring insurance and in filing a claim. If the agent is found to have breached his/her fiduciary duty to you in failing to obtain insurance or in presenting false information to the insurer during the investigation of the claim, he/she can be held liable.
Still, you want to avoid lengthy court battles by reading any insurance application before signing and hiring an insurance agent that you trust.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Thursday, June 13, 2013
New lien laws that every contractor and sub-contractor must know
As of April 1, 2013, there are new lien laws that every contractor and subcontractor MUST be aware of prior to commencing work on a project. These laws apply to any project that first begins work after April 1, 2013.
As a result of extensive lobbying by the title insurance industry, the NC General Assembly recently enacted N.C. Gen. Stat. 44A-11.1 and 11.2. In short, these statutes have created the position of a lien agent for any project greater than $30,000.00 (unless the project is at a private residence, to which exceptions apply). Every owner is now required to designate a lien agent prior to commencement of construction. Said lien agent shall be designated on the building permit or somewhere else on the property, and said individual's name shall be given by owner upon request of the contractor. Contractors are thus required to give the name of designated agent to subs, and so forth down the line.
Here is the most important part: if you do work or supply materials to a work site, you are deemed a potential lien claimant. In order to indefinitely protect your future lien rights (as against future owners of the property), you must send a notice to lien agent that you are a potential lien claimant within fifteen days after first furnishing labor or materials.
An attorney experienced in representing contractors and subcontractors can help you prepare and serve these notices. If a notice is not timely and properly prepared and served, you potentially lose your right to enforce a lien on the property against a subsequent purchaser.
It is important to note that a notice to lien agent (described above) is not a substitute for filing a lien. But for a few minor changes, statutes governing liens on property and liens on funds remain unchanged. As has always been the case, if you find yourself in a situation where payment for work or materials is delayed, you should contact an attorney to protect your rights. S/he can also advise you on ways to best protect your business in the future.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
As a result of extensive lobbying by the title insurance industry, the NC General Assembly recently enacted N.C. Gen. Stat. 44A-11.1 and 11.2. In short, these statutes have created the position of a lien agent for any project greater than $30,000.00 (unless the project is at a private residence, to which exceptions apply). Every owner is now required to designate a lien agent prior to commencement of construction. Said lien agent shall be designated on the building permit or somewhere else on the property, and said individual's name shall be given by owner upon request of the contractor. Contractors are thus required to give the name of designated agent to subs, and so forth down the line.
Here is the most important part: if you do work or supply materials to a work site, you are deemed a potential lien claimant. In order to indefinitely protect your future lien rights (as against future owners of the property), you must send a notice to lien agent that you are a potential lien claimant within fifteen days after first furnishing labor or materials.
An attorney experienced in representing contractors and subcontractors can help you prepare and serve these notices. If a notice is not timely and properly prepared and served, you potentially lose your right to enforce a lien on the property against a subsequent purchaser.
It is important to note that a notice to lien agent (described above) is not a substitute for filing a lien. But for a few minor changes, statutes governing liens on property and liens on funds remain unchanged. As has always been the case, if you find yourself in a situation where payment for work or materials is delayed, you should contact an attorney to protect your rights. S/he can also advise you on ways to best protect your business in the future.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Monday, March 11, 2013
Property Disputes & Title Insurance
Imagine finding the house of your dreams or the perfect location to start your new business. Imagine how excited you are to learn that you have the financing necessary to close on the property. Then imagine that the financing falls through because you can't get title insurance on the property. Whereas the cost for title insurance is minimal compared to the high costs of real estate, it is an expense that can mean the difference between buying that dream location versus having to find an alternate venue.
The reason this can happen is because the deed history on property can become very complex and confusing. Over time, with properties exchanging hands multiple times, the situation worsens. The purpose of title insurance is to ensure that you, as the purchaser, are insured against other claims to property. Title insurance companies must be satisfied that your claim to the property is proper, or they will not grant you title insurance.
To make you understand their rationale, imagine a driver with a long history of serious traffic accidents. At some point he/she becomes uninsurable and auto insurers will no longer take the risk of insuring his driving. Title insurers think similarly, but on a grander scale (The majority of traffic accidents are much less costly than real estate). Title insurers do not want to be in a positions where there is the likelihood of having to defend a lawsuit on your behalf.
Sometimes the issues preventing coverage can be solved with a simple phone call. Sometimes a property litigation attorney is necessary to file an action to quiet title, which is a lawsuit asking the Court to declare who is the rightful owner of property.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
The reason this can happen is because the deed history on property can become very complex and confusing. Over time, with properties exchanging hands multiple times, the situation worsens. The purpose of title insurance is to ensure that you, as the purchaser, are insured against other claims to property. Title insurance companies must be satisfied that your claim to the property is proper, or they will not grant you title insurance.
To make you understand their rationale, imagine a driver with a long history of serious traffic accidents. At some point he/she becomes uninsurable and auto insurers will no longer take the risk of insuring his driving. Title insurers think similarly, but on a grander scale (The majority of traffic accidents are much less costly than real estate). Title insurers do not want to be in a positions where there is the likelihood of having to defend a lawsuit on your behalf.
Sometimes the issues preventing coverage can be solved with a simple phone call. Sometimes a property litigation attorney is necessary to file an action to quiet title, which is a lawsuit asking the Court to declare who is the rightful owner of property.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Property Disputes & Title Insurance
Imagine finding the house of your dreams or the perfect location to start your new business. Imagine how excited you are to learn that you have the financing necessary to close on the property. Then imagine that the financing falls through because you can't get title insurance on the property. Whereas the cost for title insurance is minimal compared to the high costs of real estate, it is an expense that can mean the difference between buying that dream location versus having to find an alternate veue.
The reason this can happen is because the deed history on property can become very complex and confusing. Over time, with properties exchanging hands multiple times, the situation worsens. The purpose of title insurance is to ensure that you, as the purchaser, are insured against other claims to property. Title insurance companies must be satisfied that your claim to the property is proper, or they will not grant you title insurance.
To make you understand their rationale, imagine a driver with a long history of serious traffic accidents. At some point he/she becomes uninsurable and auto insurers will no longer take the risk of insuring his driving. Title insurers think similarly, but on a grander scale (The majority of traffic accidents are much less costly than real estate). Title insurers do not want to be in a positions where there is the likelihood of having to defend a lawsuit on your behalf.
Sometimes the issues preventing coverage can be solved with a simple phone call. Sometimes a property litigation attorney is necessary to file an action to quiet title, which is a lawsuit asking the Court to declare who is the rightful owner of property.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
The reason this can happen is because the deed history on property can become very complex and confusing. Over time, with properties exchanging hands multiple times, the situation worsens. The purpose of title insurance is to ensure that you, as the purchaser, are insured against other claims to property. Title insurance companies must be satisfied that your claim to the property is proper, or they will not grant you title insurance.
To make you understand their rationale, imagine a driver with a long history of serious traffic accidents. At some point he/she becomes uninsurable and auto insurers will no longer take the risk of insuring his driving. Title insurers think similarly, but on a grander scale (The majority of traffic accidents are much less costly than real estate). Title insurers do not want to be in a positions where there is the likelihood of having to defend a lawsuit on your behalf.
Sometimes the issues preventing coverage can be solved with a simple phone call. Sometimes a property litigation attorney is necessary to file an action to quiet title, which is a lawsuit asking the Court to declare who is the rightful owner of property.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Handling Auto Accidents & Insurance Companies
If you have had the unfortunate experience of being in an automobile accident, you have likely also suffered the uncomfortable and painstaking task of dealing with an insurance company. And depending on the at-fault party's insurance policy limits, you may find yourself dealing with more than one insurance company. Often times, your own insurance policy provides coverage for Uninsured Motorists (UM) and Underinsured Motorists (UIM). This means that if you suffer property damages, medical expenses, and personal injuries beyond the at-fault party's policy limits, your own insurance company is responsibly for paying the excess.
However, it is important that you know that your own insurance company becomes an adverse party in that instant. Though they have a duty to evaluate and adjust your claim fairly, they do not have to pay what they disagree is owed. Unfortunately, disagreements seem to be the norm rather than the exception. Therefore, you may be forced to hire an attorney to initiate litigation to recover for your damages and injuries. Disagreements on property damage and personal injuries must be resolved by a jury and an experienced litigation team is vital to maximizing a jury award.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
However, it is important that you know that your own insurance company becomes an adverse party in that instant. Though they have a duty to evaluate and adjust your claim fairly, they do not have to pay what they disagree is owed. Unfortunately, disagreements seem to be the norm rather than the exception. Therefore, you may be forced to hire an attorney to initiate litigation to recover for your damages and injuries. Disagreements on property damage and personal injuries must be resolved by a jury and an experienced litigation team is vital to maximizing a jury award.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Tuesday, January 8, 2013
Mechanic's and Materialmen's Liens
One of the most important legal remedies available to contractors and subcontractors is the right to file a lien. Liens serve a variety of functions, the most important of which is 1) to put the owner on notice that you have not been paid, 2) to make a secure claim for payment.
Filing a lien in state court requires paying a nominal fee and serving the interested parties. It is very important that liens are timely filed and that all filed documents contain accurate information. Unlike many things filed in state courts, a lien cannot be amended. Instead, in the event of an error, you must file a new lien and run the risk of filing too late. In North Carolina, you must file a lien within 120 days of the last substantial work on the property.
Failure to follow the strict guidelines imposed by your governing statutes could mean losing your lien rights. Often times the modest cost of hiring an attorney to file a lien can mean the difference between tens of thousands of dollars and nothing. If you are a sub and your contractor files bankruptcy or becomes insolvent, a timely filed lien on funds and a lien on real property can salvage your business. If money is owed to your contractor and you have not been paid, a lien directs the owner to make payment to you before paying the contractor any additional funds.
Second and third tier subs have similar remedies.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Filing a lien in state court requires paying a nominal fee and serving the interested parties. It is very important that liens are timely filed and that all filed documents contain accurate information. Unlike many things filed in state courts, a lien cannot be amended. Instead, in the event of an error, you must file a new lien and run the risk of filing too late. In North Carolina, you must file a lien within 120 days of the last substantial work on the property.
Failure to follow the strict guidelines imposed by your governing statutes could mean losing your lien rights. Often times the modest cost of hiring an attorney to file a lien can mean the difference between tens of thousands of dollars and nothing. If you are a sub and your contractor files bankruptcy or becomes insolvent, a timely filed lien on funds and a lien on real property can salvage your business. If money is owed to your contractor and you have not been paid, a lien directs the owner to make payment to you before paying the contractor any additional funds.
Second and third tier subs have similar remedies.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Tuesday, March 6, 2012
Insurance Information for Tornado Victims
From the deep south, through the midwest, and even into the Carolinas, recent bad weather has spawned multiple deadly tornadoes. While we grieve for the lives lost, many are faced with the task of rebuilding.
Undoubtedly, most of you affected will file insurance claims to compensate you for your losses and assist you in restarting your lives. It is important that you read your policy carefully to understand your rights.
In general, insurance policies compensate you in one of two ways: 1) actual cash value, which gives you the appraised value of your property at the time of the damage and incorporates a depreciation deduction, or 2) replacement value, which gives you the value of new items of like quality. Replacement value coverage is usually an insurance add-on that requires a higher premium. When compensating for replacement value, the insurance company will initially pay the actual cash value while withholding the depreciation until repairs are complete, thereby forcing you to front some of the costs. So, though replacement coverage gives you a larger recovery than actual cash value, the burden on you is still great.
Regardless of your policy, you do not have to accept what the insurance company offers. They have appraisers that represent their interests - so should you. Virtually every insurance policy has a quasi-arbitration provision that enables you to hire your own appraiser - the insurance company must comply. Your appraiser and the insurance company's will select a third-party umpire to determine the amount of your claim.
Additionally, insurance companies have a duty to handle your claim in good faith, without delay, and with the intent to fully compensate you for your loss. Having a knowledgeable attorney in your corner can help expedite the claims process and increase your recovery.
As we enter the turbulent spring months, and while we hope and pray that the devastation of this past year will not repeat itself, it is important to be prepared if and when you face the task of rebuilding.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Undoubtedly, most of you affected will file insurance claims to compensate you for your losses and assist you in restarting your lives. It is important that you read your policy carefully to understand your rights.
In general, insurance policies compensate you in one of two ways: 1) actual cash value, which gives you the appraised value of your property at the time of the damage and incorporates a depreciation deduction, or 2) replacement value, which gives you the value of new items of like quality. Replacement value coverage is usually an insurance add-on that requires a higher premium. When compensating for replacement value, the insurance company will initially pay the actual cash value while withholding the depreciation until repairs are complete, thereby forcing you to front some of the costs. So, though replacement coverage gives you a larger recovery than actual cash value, the burden on you is still great.
Regardless of your policy, you do not have to accept what the insurance company offers. They have appraisers that represent their interests - so should you. Virtually every insurance policy has a quasi-arbitration provision that enables you to hire your own appraiser - the insurance company must comply. Your appraiser and the insurance company's will select a third-party umpire to determine the amount of your claim.
Additionally, insurance companies have a duty to handle your claim in good faith, without delay, and with the intent to fully compensate you for your loss. Having a knowledgeable attorney in your corner can help expedite the claims process and increase your recovery.
As we enter the turbulent spring months, and while we hope and pray that the devastation of this past year will not repeat itself, it is important to be prepared if and when you face the task of rebuilding.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Tuesday, January 17, 2012
Executing on a Judgment
One of the biggest issues facing litigants and attorneys in a poor economy is the ability to collect on a judgment. My guess is that a majority of the public think that once a judgment is entered, that amount of money is immediately sent to the prevailing party. Whether dealing with an individual or struggling company, too often a sizable judgment is not collectible. The law creates several avenues for debtors to escape paying judgments and to retain certain personal assets.
When consulting an attorney about your case, it is important that he/she discloses to you, in addition to the merits of your case, the likelihood of collection. The best attorney in the world is valueless if your large jury verdict only exists on paper. Often times, the litigants themselves are the most knowledgeable concerning an opposing party's assets.
Before pursuing a case, it is important to have an attorney that 1) can ascertain the likelihood of success, 2) can discover other responsible parties, if any, 3) is experienced in executing on a judgment. Executing on a judgment involves complex issues that require constant communication with the Sheriff's office, knowledge of supplemental proceedings to discover assets, and a commitment to your case well after a judgment is awarded.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
When consulting an attorney about your case, it is important that he/she discloses to you, in addition to the merits of your case, the likelihood of collection. The best attorney in the world is valueless if your large jury verdict only exists on paper. Often times, the litigants themselves are the most knowledgeable concerning an opposing party's assets.
Before pursuing a case, it is important to have an attorney that 1) can ascertain the likelihood of success, 2) can discover other responsible parties, if any, 3) is experienced in executing on a judgment. Executing on a judgment involves complex issues that require constant communication with the Sheriff's office, knowledge of supplemental proceedings to discover assets, and a commitment to your case well after a judgment is awarded.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Wednesday, October 26, 2011
Medicare and Medicaid Liens
Recent legislative changes have impacted the settlement of personal injury and workers compensation cases in regards to Medicare and Medicaid. (Medicare is for folks over 65 years old, Medicaid is for folks with low income).
Medicare - Before you can settle a case where Medicare has paid for some or all of the medical bills, you have to obtain a conditional lien letter which gives you an estimate of the amount of bills paid. It can sometimes take months to get this letter. Once the case is settled, you then have to obtain a final lien letter before funds can be disbursed. Therefore, obtaining lien information early in the process is important. In workers compensation cases, you also may have to place money in escrow for future medical bills. This is called an MSA or Medicare Set Aside.
Medicaid - Liens created by bills paid by Medicaid are a little easier to manage. For example, they will generally allow you to deduct one-third of their lien to help defer your attorney fees.
Having an attorney that is knowledgeable in these issues is critical to obtaining a fair resolution of any personal injury or medical negligence claim.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Medicare - Before you can settle a case where Medicare has paid for some or all of the medical bills, you have to obtain a conditional lien letter which gives you an estimate of the amount of bills paid. It can sometimes take months to get this letter. Once the case is settled, you then have to obtain a final lien letter before funds can be disbursed. Therefore, obtaining lien information early in the process is important. In workers compensation cases, you also may have to place money in escrow for future medical bills. This is called an MSA or Medicare Set Aside.
Medicaid - Liens created by bills paid by Medicaid are a little easier to manage. For example, they will generally allow you to deduct one-third of their lien to help defer your attorney fees.
Having an attorney that is knowledgeable in these issues is critical to obtaining a fair resolution of any personal injury or medical negligence claim.
This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.
Preliminary Information on Condemnation Cases
If you or someone you know has recently received a notice or a declaration of taking by the government regarding a portion of your property, there are significant questions you need answered to protect your rights as the homeowner.
1.) Was a Complaint filed for the taking? A complaint is a lawsuit, and in condemnation cases, the plaintiff is usually the government (or entity taking the property) and the defendants are all the "potentially" affected parties of that taking. Typically the list of defendants would include the homeowners, the bank who has the mortgage, and the Trustee (if there is one). The date of the taking is the same as the date of the filing of the complaint, and the plaintiff must deposit the full amount of the funds which it deems "just compensation" to the defendants. These funds are held with the Clerk of Court in whichever county the lawsuit was filed.
2.) A Complaint has been filed, and I disagree with the "just compensation" amount for my property. How do I fight it? If you agree with the amount deposited with the Clerk of Court as just compensation for the portion of your property being taken, then you may move the court to disburse the funds directly to you, once you have determined that none of the other defendants have an interest in the funds. NOTE - You must contact and provide adequate notice to all defendants that you plan on having a hearing to withdraw the funds. You do not need an attorney to withdraw these funds, but if you are nervous about doing it, you can hire an attorney to make a limited appearance on your behalf.
If you disagree with the amount deposited, you probably need to contact an attorney. The plaintiff has most likely determined your "just compensation" dollar amount by hiring an appraiser, who used a method for determining value. This appraiser must determine what the "highest and best use" of the condemned property was as of the filing of the taking. Your attorney will most likely want to hire a different appraiser or someone who can testify as to why the plaintiff's value of your property is unreasonable or too low. These costs will most likely need to be paid out-of-pocket by you, but in certain situations you may use the amount deposited with the Court to pay some of these expenses.
In condemnation cases, withdrawing the deposit (if you are permitted to do so) will not affect your right to later potentially collect more from the plaintiff, so long as you haven't signed anything waiving this right. You need to consult an attorney soon after receiving the complaint to avoid jeopardizing your rights to "just compensation."
1.) Was a Complaint filed for the taking? A complaint is a lawsuit, and in condemnation cases, the plaintiff is usually the government (or entity taking the property) and the defendants are all the "potentially" affected parties of that taking. Typically the list of defendants would include the homeowners, the bank who has the mortgage, and the Trustee (if there is one). The date of the taking is the same as the date of the filing of the complaint, and the plaintiff must deposit the full amount of the funds which it deems "just compensation" to the defendants. These funds are held with the Clerk of Court in whichever county the lawsuit was filed.
2.) A Complaint has been filed, and I disagree with the "just compensation" amount for my property. How do I fight it? If you agree with the amount deposited with the Clerk of Court as just compensation for the portion of your property being taken, then you may move the court to disburse the funds directly to you, once you have determined that none of the other defendants have an interest in the funds. NOTE - You must contact and provide adequate notice to all defendants that you plan on having a hearing to withdraw the funds. You do not need an attorney to withdraw these funds, but if you are nervous about doing it, you can hire an attorney to make a limited appearance on your behalf.
If you disagree with the amount deposited, you probably need to contact an attorney. The plaintiff has most likely determined your "just compensation" dollar amount by hiring an appraiser, who used a method for determining value. This appraiser must determine what the "highest and best use" of the condemned property was as of the filing of the taking. Your attorney will most likely want to hire a different appraiser or someone who can testify as to why the plaintiff's value of your property is unreasonable or too low. These costs will most likely need to be paid out-of-pocket by you, but in certain situations you may use the amount deposited with the Court to pay some of these expenses.
In condemnation cases, withdrawing the deposit (if you are permitted to do so) will not affect your right to later potentially collect more from the plaintiff, so long as you haven't signed anything waiving this right. You need to consult an attorney soon after receiving the complaint to avoid jeopardizing your rights to "just compensation."
Subscribe to:
Posts (Atom)