Pennsylvania Law Monitor : Pennsylvania Lawyer & Attorney : Stark & Stark Law Firm : Yardley, Philadelphia, New York, New Jersey

If you have a client who is receiving public benefits and has been offered a settlement in a personal injury case, you should consider placing the funds in a “Special Needs Trust”.

Historically, a person who had any assets, including trust assets, was not eligible to receive Medicaid or any other public benefits. OBRA-93, Section 1396p(d)(4)(A) has an amendment that authorizes the creation of trusts to allow disabled persons under the age of 65, who are receiving funds from a personal injury settlement, to place those funds in a special or supplemental needs trust and at the same time preserve their right to collect medical assistance benefits and supplemental social security benefits (SSI). The one provision is that upon the death of the beneficiary of the trust, the public entity that provided the benefits shall receive any amounts remaining in the trust up to the amount of the benefits paid on the individual decedent’s behalf.

Any such trust must be approved by the court and the consent of the public entity (such as welfare or social security) that is providing benefits.

Edward Shensky is a member of Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Shensky.

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There was a computer-assisted investigation by the U.S. Department of Transportation using heavy truck inspection data from 2003 to 2008 for Northwest Indiana. Some of the statistics are startling and are derived from State Police and Federal Inspectors checking 34,856 heavy trucks (i.e. semi trailers, buses and other heavy commercial vehicles) in Lake and Porter counties in Northwest Indiana between 2003 and 2008.  

Of those trucks 8,929, more than 1 in 4, were found to have safety violations deemed serious enough to take the trucks or drivers out of service. There is an estimated 2 million heavy trucks per year that pass through the trucking corridors of Interstate 80/94 and Interstate 65 alone in that territory and the resources to keep up with these truck inspection issues are shrinking.

Another serious violation that has occurred thousands and thousands of times is missing or faulty driver log books or drivers who went over the federal standard for consecutive hours worked without a break. Unfortunately, sleep and driver fatigue continues to be common with over-the-road truck drivers. Truck drivers operating their vehicles for more than 11 hours straight can be more prone to sleepiness or fatigue leading to distraction,  daydreaming or cause a driver’s eyes to drift downward according to fatigue experts.

In Northwest Indiana alone, more than 1,400 violations were recorded over six years for truckers operating their rigs beyond the 11-hour regulation. Statistics show that accidents involving these commercial vehicles occur at the end of longer hauls and more specifically within 20 minutes of their final destination when truckers are most tired or distracted from the fatigue. That data has been gathered by a sleep and driver fatigue expert, Carolyn Shur, of Canada-based Schur Goode Associates. State Police Inspectors in this region are  hoping that the random possibility of having roving patrols in and around weigh stations will be enough to bolster the trucker’s and their companies’ compliance with the DOT regulations.

Jeff Krawitz is a Shareholder in Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Krawitz.  

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One of the biggest shifts taking place in the motorcycle world is the amount of women who are riding. Statistics report that approximately 25% of all riders are women. As more women, like myself are riding, I want to point out a couple important things if you are looking for a motorcycle.

Obviously safety is the most important thing to consider when riding a bike. This begins, however, with being able to control your bike. When you are shopping for a motorcycle, make sure your seat is low enough that your feet can touch the ground. This may seem obvious, but I have seen many women not be able to do this, lean to one side and dump a bike.

Second, make sure that you can reach the handle bars. Again, if it is too much of a stretch you will not be able to maneuver certain situations, and therefore you could cause an accident which could end in serious injuries for you and other riders.

The next thing you should consider is your ability to pull in the levers, such as the clutch and brake. Different bikes have different tensions, so make sure the tension is not so tight that when you are pulling these levers repeatedly, your hands fatigue.

Finally, make sure your bike is a cool color… just kidding. Although, for me, I did chose red.  On a serious note, it doesn’t matter the color when it comes to safety and your ability to control your bike. Just make sure when you ride you wear clothing that is visible so other drivers can see you, and buy a bike that you can control given your size.

Here are a few upcoming events just for women:

• The International “Women and Motorcycling Conference” is scheduled for July 26-29^th in Carson City, NV. If you are interested in going you can register online here.
• Biker Belles 2012 ride will take place at the Sturgis Motorcycle Rally on August 8, 2012

Carin O'Donnell is a member of Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. O'Donnell.

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Be aware that social media accounts, such as FaceBook or MySpace, may not be private even if the privacy settings have been properly set on the website. Courts around the country, and specifically in Pennsylvania, have been struggling with this issue with varied results.

In Pennsylvania, the Courts have allowed defendants access in personal injuries actions to the “private sections” of social media account pages under certain circumstances.  Recently, in the case of Arcq v. Fields, a Pennsylvania court denied access to the private sections of a plaintiff’s social media account because the defendant was unable to show any reasonable basis for believing that access to the plaintiff's private pages would yield any information relevant in this motor vehicle accident case. Plaintiff, at his deposition, stated that he was incapable of participating in certain activities as a result of his injuries. The court held that they would not allow access to the private sections of a party’s social media account unless the public sections of that account yielded information that could be relevant to the underlying case.

The moral of this story is that social networking accounts may be subject to inspection in lawsuits. Do not be fooled by the privacy settings on your account. Those settings do not necessarily apply to, or protect information from, discovery in the litigation arena.

Edward Shensky is a member of Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Shensky.

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Many people are under the misconception that you have to be retired to receive Medicare benefits.  THIS IS NOT TRUE!  If you are 65 years old, whether you are working or retired, you can receive Medicare benefits.  If you are 65 and still working and have health insurance through your employment, you may wish to continue to receive your medical benefits through your employer’s policy, and use your Medicare benefits as a secondary payer. If you are 65 and working, but have no health insurance, you can continue to work and still receive all the Medicare benefits to which you are entitled.

You can apply for Medicare on line, through the social security website, www.ssa.gov, or you can call your local Social Security office for an appointment to apply for Medicare.  You should apply approximately 4 months before your 65th birthday.

If you are already receiving Social Security Retirement benefits at the time of your 65th birthday, you need not apply for Medicare.  You will be automatically enrolled in Medicare when you turn 65.

Leslie A. Mitnick is a member of Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. Mitnick.

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Several of our blog posts stress the importance of selecting the full tort option when you purchase your auto insurance. If you elect for limited tort instead of full tort, you are generally precluded from recovering “non-economic” damages such as pain and suffering if you are injured in an auto accident.  Of course, limited tort coverage is slightly cheaper, so many people do choose this option.  However, in the event of a serious auto accident, the decision to choose limited tort can be a costly one if you are unable to fully recover for your injuries.

Occasionally, someone who has elected for the limited tort option on their auto insurance is involved in an auto accident, not as the driver or passenger in a vehicle, but while they are walking as a pedestrian.  In that situation, is the person still precluded from recovering for damages such as pain and suffering under their limited tort policy? 

The answer is NO.

In L.S. v. David Eschbach, Jr., Inc., 583 Pa. 47, 874 A.2d 1150 (2005), the Supreme Court of Pennsylvania held that the restrictions on recovery of individuals who have elected for limited tort insurance coverage apply only to motor vehicle drivers and passengers, and do not limit the recovery of pedestrians.

If you have been injured as a pedestrian, or if you are unsure about whether you have full tort or limited tort insurance coverage, contact me here for more information about protecting your legal rights.

Joseph Ashton is a member of Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Ashton.

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Recently, I heard a story about a person who settled a case in 1981 with a structured settlement. The story was important because the insurance company that was to fund the annuity pursuant to the settlement recently declared bankruptcy and the injured plaintiff was advised that his/her benefits were being reduced going forward by approximately 50%.

Structured settlements have been used for years as a method of providing an income flow over time to an injured plaintiff. This accomplishes two important goals:

• First, it assures that the injured party will not dissipate the fund with unwise investments.
• Secondly, the income from the annuity based periodic payments is tax free.

The moral to this story is that if you are considering a structured settlement as part of a resolution to your personal injury case be sure that the insurance company that is funding the annuity is a highly rated company and, if possible, request that the insurance company with whom you are settling the case guarantees the payment of the settlement amount if something unforeseen should happen to the company issuing the annuity. Furthermore, it is always a good idea to enlist the services of a financial consultant to help guide you and your lawyer through the structured settlement process.

Edward Shensky is a member of Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Shensky.

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During the holidays, many people celebrate at parties at the homes of their friends and relatives, or at their workplace. Unfortunately, each year there are many people who are hurt by drivers who have had too much to drink at a party.

If you have been injured by a drunk driver, you may be facing serious and expensive medical bills. In order to protect your legal rights and maximize your recovery, it is important that you identify everyone responsible for your injuries. Obviously, you probably have a claim against the drunk driver. But, under Pennsylvania law, if the drunk driver was under 21-years old at the time of the accident, you may also be able to bring a successful lawsuit against any adult who may have furnished the minor with the alcohol which led to the accident.

Under the “social host doctrine” in Pennsylvania, an adult host who serves alcohol to a person less than twenty one years old can be held liable for injuries which result from the minor’s intoxication.  In order for an adult social host to be liable, the adult must knowingly furnish alcohol to minors, which usually means that they must have been involved in the planning of the event or the serving, supplying, or the purchasing of the alcohol.

Joseph Ashton is a member of Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Ashton.

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In previous posts, the contributors to this blog have commented on the ever-changing status of Pennsylvania law regarding whether a defendant is entitled to gain access to a plaintiff’s Facebook pages. In the most recent decision on this issue, Judge William J. Manfredi of the Philadelphia County Court of Common Pleas denied a defendant’s request for access to a plaintiff’s Facebook pages.  Martin v. Allstate Fire and Cas. Ins. Co., No. 110402438 (C.P. Phila, Dec. 13, 2011).

At first glance, this decision seems to be a huge win for plaintiff’s, cutting against the growing trend in Pennsylvania of allowing access to social media websites.  However, upon closer inspection, this may not be the case.  Judge Manfedi’s ruling seems to center around the fact that the defendant failed to identify any information contained on the plaintiff’s Facebook site that would warrant further discovery.  In other words, this ruling will not serve to prevent defendants from gaining access to Facebook where they are able to identify such information.

The bottom line is it is still incredibly important to be careful what you post on Facebook and also to monitor what is being posted about you.  A seemingly innocent post by a friend on your wall or a comment on a photo may be enough to allow a defendant to gain full access to your Facebook site.  It is also advisable to adjust your Facebook privacy settings to limit the amount of information that is visible to the public.

At Stark & Stark, we always make it a point to discuss the use of Facebook, and other social mediums, during our initial client interview and intake process. We counsel our clients to be very careful as to what they post on these sites and remind them that this information could be obtained by the defendants. We also instruct our clients not delete or alter any existing posts.

Ian Abvoitz is a member of Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Abovitz.

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In the past, many employers have attempted to classify employees as independent contractors in order to avoid providing workers compensation benefits. The law now provides protection to employees from being misclassified as independent contractors.

Misclassification of employees as independent contractors is illegal for commercial and residential Construction in Pennsylvania. No individual may be classified as an independent contractor unless the individual:

• Has a written contract to perform construction services with the business or person;
• Is free from control or direction over the performance of these services, and
• Is customarily engaged in an independently established trade, occupation, profession or business.

An individual is “customarily engaged in an independently established trade, occupation, profession or business” only if:

• The individual possesses the essential tools to perform the services independent of the business for which the services are performed.
• The individual must realize a profit or suffer a loss for the project.
• The individual must have a proprietary interest in their business.
• The individual must have a business location separate from the business or person for whom the services are being performed.
• The individual independently performed the same services for another person, or was available and able to independently perform these se3rvices for another person and represented that these services could be independently performed for another person.
• The individual must maintain liability insurance of at least $50,000 during the term of the contract.

The following is also prohibited:

• An employer may not retaliate against any person who exercises rights under the law, including the filing of a complaint or informing another about an employer’s noncompliance with the Act.
• An employer may not require or demand that an individual enter into an agreement or sign a document which results in the improper classification of that individual as an independent contractor.
• An employer may not intentionally contract with another employer knowing that the employer intends to misclassify employees.

Kevin M. Bradway is a member of Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Bradway.

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Its winter, and we all seem to be coming down with some sort of cold. However, if you drive while you are sick, is it just as dangerous as driving while drunk?  According to some recent research, the answer is: “Yes”.

Motor safety experts found that the driving skills of people who were feeling sick were estimated to drop by about 50% when compared with those who were healthy. People that are under the weather are more likely to have reduced reaction time and can experience major loss of concentration. Researchers concluded that the driving skills of sick individuals were so bad that they compared it to a person who was driving under the influence of “four double whiskeys.”

Apparently, a heavy cold can impair a driver’s mood, concentration and judgment.  So if you are sick, perhaps the safest thing to do is stay in bed and get better.

Tyler Tomlinson is a Shareholder in Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Tomlinson.

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Supplemental Security Income, or “SSI” is a program administered by social security for people who are disabled, aged, or blind and have limited income in resources.  To be eligible for SSI an individual must have no more than $2,000 in “countable” resources.  A married couple must have no more than $3,000 in “countable” resources. 

However, not all of your resources count toward the SSI resource limit.  Examples of resources that “don’t count”, in general, are:

• the home you live in and the property it’s on;
• your personal effects and household goods;
• your car;
• burial plots for you and members of your immediate family;
• up to $1,500 in burial funds for you, and up to $1,500 in burial funds for your spouse.

Additionally, if you are blind or disabled, other items may not count if you use them to work or earn extra income. 

Leslie A. Mitnick is a member of Stark & Stark’s Newtown, Bucks County office, specializing in Accident & Personal Injury Law. For more information, please contact Ms. Mitnick.

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Governor Tom Corbett recently approved a ban on the use of cell phones and text messaging while driving. This law will go into effect on March 8, 2012. Under SB 314, if you are caught by police text messaging while driving you will be subject to a $50 fine. However, this state law will supersede a stricter Philadelphia ordinance that bans all handheld cell phone use. 

Harrisburg, Wilkes-Barre and Erie also have banned cell phone use by drivers unless a hands-free device is in use. Once again, these local distracted driving laws apparently will become unenforceable once the statewide texting ban goes into effect in 2012. This means that handheld cell phone use will be legal throughout the state.

Critics of the new law worry that it will be unenforceable since using a phone for everything but texting will be allowed. The police will have no way of knowing whether a driver is texting or doing something else.  

The law is intended to keep drivers aware of the road, and not their phones, in hopes of reducing the number of auto accidents each year. It’s important to remember to pay attention to the road, and not your phone, unless it is an emergency.

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In my previous post, I discussed the differences between the “Limited Tort” and the “Full Tort” auto insurance options in Pennsylvania along with various exceptions that allow a “Limited Tort” driver to recover as if they were “Full Tort”.  In this post I will focus on the exception that allows for “Full Tort” recovery when the driver that caused the accident is DUI.  I will also discuss some additional damages that may be available in such a situation.

First, it is important to note that the precise language of the exception provides that an individual otherwise bound by the limited tort option can recover as if they were full tort where the person at fault “is convicted or accepts Accelerated Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a controlled substance in that accident.”  75 Pa.C.S.A. 1705(d)(1)(I). 

The obvious implication of this language is that the exception only applies where the individual both causes the accident and is convicted of DUI or accepts ARD.  If one of the drivers involved in an accident is found to be under the influence, but they didn’t cause the accident, the exception will not apply.  Similarly, the exception will not apply if DUI charges are ultimately dropped.

Another issue that must be considered where an accident is caused by a DUI driver is whether additional recovery may be available in the form of punitive damages.  Pennsylvania courts have consistently held that the act of driving under the influence constitutes reckless behavior such as to expose a driver to punitive damages.  Generally, automobile insurance policies do not provide coverage for punitive damages and the driver will be held personally responsible for such damages.  This personal exposure provides yet another reason not to get behind the wheel after drinking this holiday season!

If you are injured in a motor vehicle accident and have questions regarding your tort status, please call me here in Stark & Stark’s Bucks County, Pennsylvania office to set up a free consultation to review your case.

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