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Snow Storms & Slip and Falls

The great snowstorm of Feb. 5-6, 2010, is history.  Officially, 28.5 inches was measured at Philadelphia International Airport, just shy of the all-time record and putting the winter of 2009-2010 to No. 2 for snow in 126 years of record-keeping.  They are calling for another big storm this week. 

Of course, all of this snow makes for very dangerous walking conditions.  The chances of being hurt as a result of slipping on ice or snow only increases. 

There are a few things that you should do if you are hurt on someone’s property as a result of snow or ice.  The first thing is to be sure that you receive the appropriate medical attention.  If you are seriously hurt, you should call 911 and wait for an ambulance. 

Next, you should notify the property owner so that they may correct the dangerous condition.  You do not want any one else to be hurt.  Also, this will help later prove that you were really hurt on their property.  If you are hurt on a commercial property, they may want you to complete a report or given them a statement.  Be careful about doing this.  They will usually try to use whatever you tell them against you later.   

Pictures. Pictures.  Pictures.  If possible, you should take pictures of the dangerous condition.  If you have a camera, then you should take five pictures of the area.  You can also use a cellphone camera.  Pictures can be very valuable in proving that the dangerous condition existed.  Also, it will prove that the property owner should have taken care of the condition before you were hurt.  These pictures will sometimes help you win your case. 

Your next call should be to an attorney that handles slip and fall cases.  At Stark & Stark, we handle these cases every day.  We will have experts that will want to inspect the dangerous condition as soon as possible.  Also, we will want to make sure that you are fully compensated for the damages that you suffered.

It's Time to Review Your Will After Congress Allows Federal Estate Tax to Die

As many people are now aware, Congress has (at least for now!) let the federal estate tax die. The federal estate tax is scheduled to come back in 2011 and in future years after that. In future years, estates worth as little as $1 million dollars are scheduled to be taxed (compared to estates worth more than $3.5 million dollars in 2009). It is still believed that at some point this year Congress is going to reinstate the federal estate tax, perhaps retroactively (there is speculation that the $3.5 million dollar exemption from 2009 will continue; of course most people thought Congress would never let the federal estate tax expire in the first place). Due to the current repeal of the federal estate tax, there are two issues that you may have in your current will that you should review with your trusted estate planning advisor:

Issue 1: Your Estate Plan is Written to Leave Too Much to Your Children and Nothing to Your Spouse.
Some estate plans have been written to leave as many assets as possible to the testator’s (a person who makes a will) children (or to a trust for the benefit of the testator’s children) without triggering a federal estate tax, with the remainder going to the testator’s spouse. If a testator died in 2009, $3.5 million dollars would have passed (estate tax free) to the testator’s children (or the trust), with the balance going to the testator’s spouse. As of today, the current federal estate tax exemption is unlimited, therefore, a testator dying today would leave his or her entire estate to his or her children (or the trust), leaving nothing to his or her spouse; this is clearly an unintended consequence of the expiration of the federal estate tax for many people.

Issue 2: Your Estate Plan is Written to Leave too Little to Your Children
This issue is not as serious as the one above, but may still concern some people. If your estate plan was written in a specific year to leave the then current federal estate tax exemption to your children (i.e. you had your will drafted in 2009 to leave $3.5 million dollars to your children), it was a good plan while the federal estate tax was in place, as you could leave the specified federal estate tax exemption amount to your children, with the balance going to your spouse. Now, with no federal estate tax, you may desire to leave even more to your children, so it may be time to review your will.
Even if you do not have the above issues in your current will, it is important to have it reviewed by an estate planning professional. Estate planning done over the years often considered the then current federal estate tax. If Congress does not act this year, the federal estate tax will be $1 million dollars in 2011, an amount that will require additional estate planning for many people.

As it is unclear what Congress will do, if anything, about the expiration of the federal estate tax, please check back often for further updates as we move forward in 2010.

8 Things To Do After an Auto Accident

STAY CALM
Turn off your car. If anyone is injured: give first aid if qualified or call 911.
     
CALL THE POLICE
Always call the police so that there is an incident report on file and be sure to cooperate fully with the police officer.

GATHER INFORMATION - WRITE IT DOWN!
If you are able to, and it creates no danger to yourself or others, get names, addresses and phone numbers from the witnesses. Also, try to take pictures with a camera or cell phone to document the damage.

SEEK MEDICAL ATTENTION
If you are hurt, go to the local Emergency Room immediately. Serious injuries do not always result in instant pain. If there is the slightest chance you may be injured, see your doctor as soon as possible.

NOTIFY YOUR INSURANCE COMPANY
Cooperate fully with your insurance company.

REPORT THE ACCIDENT
Pennsylvania law requires that you file an accident report within two days after an accident. Your insurance company or the police department will provide you with the standard form.

IF YOU HAVE BEEN INJURED, SEE A LAWYER IMMEDIATELY
Consult an attorney who is experienced in handling auto cases. You may talk to Stark & Stark either over the phone or in person at our office. If you are unable to come to the office because of the injuries, then we will meet with you in the hospital or at your home. You do not pay any lawyers fees unless your case is successfully concluded.  Call Stark & Stark at 1.800.53.LEGAL or visit us online at www.StarkInjuryGroup.com.

KNOW YOUR LEGAL RIGHTS
You should know your legal rights, and you should know what to do to protect those legal rights before giving any statements to the other driver's insurance company.

An Owner's Manual For Your Divorce - Installment 6

An Owner's Manual For Your Divorce is a 10 part podcast series presented by Joseph D. Visco, member of Stark & Stark's Divorce group. The series is intended to assist you in understanding the general process of a divorce from the initial discussions with your spouse to the post divorce follow-up.

The sixth installment will address the discovery portion of your divorce proceedings. Mr. Visco discusses interrogatories, requests for the production of documents and oral depositions.You can download a copy of the installment notes here. (PDF)

You can download the sixth installment here. (2 MB)
 

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Stark & Stark Attorney Discusses Collaborative Divorce on CNBC

Joseph D. Visco, member of Stark & Stark's Divorce Group, was quoted in the January 26, 2010 CNBC article Breaking Up Doesn't Have To Be Hard To Do - Bucks County Collaborative Law Group Takes the Toxicity Out of Divorce.

In the article, Mr. Visco, a founding member of The Bucks County Collaborative Law Group (BCCLG), discusses the many ways in which a collaborative divorce helps divorcing couples turn conflict into cooperation and assists divorcing couples in resolving disputes respectfully and equitably without going to court.

You can read the full article online here.

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Avoid These Estate Planning Mistakes

In order to have an effective estate plan and properly provide for your heirs, it is vital that you avoid the following estate planning mistakes:

  1. Not Having a Will. Without, at the very least, a basic will, your assets will pass to your heirs according to the Commonwealth’s laws of intestacy, which effectively means that your personal desires with respect to your assets may not be followed upon your death.
  2. Not Planning for Incapacity. As we continue to live longer due, to among other things, better medical care, we may reach a point where we lack the capacity to make important health and financial decisions. It is vital that you have a power of attorney in place allowing your appointee to make health and financial decisions on your behalf.
  3. Failing to Plan for Children with Special Needs. If a child with special needs is not planned for properly, the child risks being disqualified from receiving Social Security benefits, which means that his or her care will have to be funded by other means; in this instance a special needs trust may be appropriate.
  4. Failing to Business Succession Plan. With a well drafted business succession plan, you can ensure that your business is in the control of those you choose upon your death, disability, or some other life altering event, increasing the likelihood that the business will prosper for many years to come.
  5. Failing to Prepare for Minor Children. If you have minor children, you should amend your will or have one prepared that nominates personal guardians for your children in the event that you and your spouse die before your children reach the age of 18. In the event that you fail to make a will that designates personal guardians for your minor children, the court will decide who the personal guardians of the children will be.
  6. Making Improper Beneficiary Designations. As discussed in one of my prior articles, in Pennsylvania, beneficiary designations found on bank accounts, life insurance policies, IRAs and other investment accounts control over your desires for the disposition of the assets found in your will. It is imperative that you check your beneficiary designations on these accounts on a regular basis to confirm that they coincide with your estate planning desires.
  7. Not Reviewing Your Estate Plan. As previously discussed, it is recommended that you review your estate plan after all life changing events and, at the very least, once a year.
  8. Creating You Own Estate Planning Documents. While it is very possible that the estate planning documents you prepare on your own or find on the internet may be enforceable, nothing can replace the advice of a competent legal professional in assisting you with your estate planning, as estate planning is often more complex than you may think.  

Discharging a Mechanics' Lien Claim by Surety Bond or Payment of Cash into Court

This blog is part of an ongoing series discussing the Pennsylvania Mechanics’ Lien Law. For more information on Mechanics' Liens in Pennsylvania, click here.

A Mechanics’ Lien Claim can present problems for Owners seeking to sell or refinance a home or other real estate.  Likewise, higher-tiered Contractors and Subcontractors can encounter headaches where a Subcontractor files a Lien Claim of questionable legitimacy or for defective work, jeopardizing the Contractor’s reputation or relationship with customers. 


The Pennsylvania Mechanics’ Lien Law presents remedy to Owners and Contractors for cases in which the Mechanics’ Lien Claim is disputed, but where a time-sensitive transaction concerning the property must be completed.  The Law allows an Owner to Discharge the Lien upon either payment of cash in the amount of the Lien into the Court, or upon the acquisition of a Surety Bond in double the face amount of the Lien (or a lesser amount upon approval of the Court).   This remedy may also be available to a higher-tiered Contractor, however the Contractor must first successfully Petition the Court to intervene in the case, and then move to pay the cash into Court or substitute the Surety Bond.


It is important to note some of the legal fictions involved in Mechanics’ Liens to better understand the import of this procedure.  A Mechanics’ Lien Claim is technically an action against real property, and not against an individual or entity.  When the Court grants the “Discharge” of a Mechanics’ Lien Claim upon payment into Court or entry of a bond, this does not extinguish the Claim, but merely substitutes the cash or bond for the real property, and removes the Lien from the chain of title to the real property so that a transaction may occur without first satisfying the Lien itself by payment to the Claimant.  Even after Discharge of the Lien Claim, the Claimant may prosecute the Claim seeking the cash held by the Court or payment under the surety bond, and therefore the Owner or intervening Contractor must defend an action at law upon the Mechanics’ Lien Claim.

Pennsylvania Auto Insurance: Underinsurance and Uninsurance

In Pennsylvania, drivers have the option to select uninsured motorist coverage and underinsured motorist coverage. This coverage is very important and should be selected by anyone purchasing auto insurance.

Uninsured motorist coverage protects you in the event that you are hit and injured by a driver who is uninsured. Unfortunately, there are a lot of people driving without insurance and if you are hit by an uninsured driver the odds are great that this uninsured driver will not likely have any assets from which you can collect in the event you file a claim. But if you have uninsured motorist coverage you will be able to make a claim against your own company for the benefits you deserve.

Underinsurance is also a very important coverage that you should buy when purchasing auto insurance. Underinsurance benefits protects you in the event you are struck and injured by an underinsured driver. For example, say a drunk driver goes through a red light and hits you and your spouse broadside. You and your spouse are badly injured and are both out of work for six months. Your medical bills are in excess of $100,000.00, your wage loss is in excess of $25,000.00, you have permanent injuries which will bring with it pain and suffering, and the drunk driver had only $15,000.00 worth of insurance and no assets. If you purchased underinsured motorist benefits you could go to your insurance company and make a claim against your own insurance since the driver that hit you is underinsured. If you don't select this coverage you are stuck with the $15,000.00 the drunk driver had and that's all you will get and it will never replace what you have lost.
 

So remember, when purchasing auto insurance, it's very important to purchase uninsured motorist and underinsured motorist coverage. When buying your insurance you must fully protect yourself and your family.

United States Supreme Court Case Involving Anna Nicole Smith Highlights Exceptions to Federal Court Jurisdiction

A 2006 Supreme Court Case arising from a story most laypeople learned from supermarket tabloids reaffirms an age old exception to the jurisdiction of the Federal Courts. As many people know, deceased model and celebrity personality Anna Nicole Smith (then aged 26) married billionaire Oil Industry magnate J. Howard Marshall when Marshall was 89 years of age.  Famously, the marriage lasted fourteen months, until Marhsall’s death, leading many to comment that Marshall must have died a happy man. Following Marshall’s passing, Smith (whose real name was Vicky Lynn Marshall) became embroiled in a protracted dispute over the estate of her late husband with the deceased billionaire’s son and her own adult step-son, E. Pierce Marshall.  While Smith’s unrelated Bankruptcy proceedings were pending in Bankruptcy Court in California, Pierce Marshall asserted a claim against Smith, seeking to have the Bankruptcy Court declare that a claim which he intended to bring against Smith for defamation could not be discharged in Bankruptcy. 


Before the Bankruptcy Court, Pierce Marshall claimed that Smith had defamed him shortly after the elder Marshall’s death by making statements through her lawyers accusing Pierce Marshall of engaging in forgery, fraud, and overreaching in order to deprive Smith of certain testamentary gifts which her husband had made for her benefit.  In response, Smith pleaded the affirmative defense of truth – asserting that Pierce Marshall’s claims should fail because the content of her lawyers’ statements were true, and filing a counterclaim for tortious interference with a testamentary gift that she had expected from the elder Marshall.  The Bankruptcy Court granted summary judgment in favor of Smith on the issue of his claim for defamation, and after a trial on the merits, entered judgment in favor of Smith and against Pierce Marshall, finding that he had in fact conspired to falsify documents, and alter and destroy a trust instrument which the late J. Howard Marshall had directed his lawyers to prepare for the benefit of his wife, Anna Nicole Smith.  Pierce Marshall then sought District Court review of the Bankruptcy Court’s findings, after which the District Court adopted the Bankruptcy Court’s findings and entered an award of compensatory damages in the amount of $44.3 million, and following a finding of “overwhelming” evidence of Pierce Marshall’s “willfulness, maliciousness, and fraud,” the District Court awarded an equal amount of punitive damages. 


Predictably, Pierce Marshall appealed the District Court’s judgment to the Ninth Circuit Court of Appeals, seeking to have the District Court’s judgment vacated, asserting that the Bankruptcy Court and District Court lacked the authority to adjudicate Smith’s counterclaims citing the “probate exception” to the general jurisdiction of the Federal Courts.  The Ninth Circuit reversed the District Court’s judgment, and Smith appealed to the United States Supreme Court.


The United States Supreme Court reversed the Ninth Circuit, finding that the “probate exception” did not apply to Smith’s counterclaims, and therefore that the Bankruptcy Court and District Court did have jurisdiction over Smith’s claims.  In a majority opinion penned by Justice Ginsburg, the Supreme Court clarified the Court’s prior holdings establishing a probate exception to Federal Jurisdiction.  The Court first noted that, although nothing in the text of the Constitution compels the exception to jurisdiction, such an exception was recognized by the English Courts of Chancery - which is the correlative jurisdiction granted to the Federal Courts in the First Session of the First United States Congress under the Judiciary Act of 1789.  The Court then explained that the probate exception did not preclude all claims related to or arising from a decedent’s estate, as the Ninth Circuit had erroneously concluded, but that claims for the annulment or probate of a will or the administration of a decedent’s estate should properly remain in the State Courts. 

What to do if You Are Involved in a Car Accident

Though most of us don’t want to think about the possibility of being involved in a car accident, the reality is, it happens more than most of us think. There are several key things to remember if you, or someone you care about, is ever involved in a car accident.

The first, and most important, thing to do is to seek medical attention. Although there will be a lot going on around you, your health comes first. Be sure to go to the emergency room or visit your family doctor if you experience any injuries as a result of the accident.

Second, you should find an attorney that handles automobile accident cases.  Representatives from the insurance companies will be calling you to see how you are doing and will want to have you give a statement.  Before speaking to the insurance companies, you should consult with an attorney in order to protect your rights. Here at Stark & Stark, we assist clients with understanding the police report and work with you to review your auto insurance policies. We can help you determine what type of coverage you have and what benefits you are entitled to.

Lastly, it is important to understand the different kinds of coverage available to you. In Pennsylvania, when you signed up for auto insurance, you had to decide between full tort vs. limited tort. Hopefully you selected full tort.  This will allow you to be compensated for all of your damages. Most people select limited tort because it is less expensive. However, if you have limited tort it will most likely limit the compensation you will receive.  If you have limited tort insurance coverage you are not entitled to damages for pain and suffering, unless you fall into one of the exceptions.  Some of these exceptions include: suffering a serious and permanent injury; the person that hit you is from another state; or the other party was intoxicated at the time of the accident.

Remember, it is important to stay calm at the scene of an accident. If you, or someone you know, has recently been hurt in an auto accident, or if you would simply like more information on what to do if you are ever in an accident, please feel free to contact Stark & Stark with any questions.