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Personal Injury Cases in the News

Personal Injury Cases in the News

The Chicago Tribune recently reported that the Estate of NHL player Derek Boogaard has filed a suit against the NHL attributing his personal injury to its unlawful practices. Specifically, it is alleged that Boogaard regarded as a hockey “enforcer” took up to 10 oxycodone pain killers a day, and that the league knew or should have known, that players with brain damage are at higher risk for drug addiction.

In Michigan, the usual remedy for an injury to a worker is under the Workers’ Compensation Act, MCL 418.131. Under this statute for a work related injury the general rule is that it is the worker’s exclusive remedy. Under the statute there is a trade off in that the worker’s rights to compensation are limited but are insured in that employers defenses of worker’s comparative fault are eliminated. This is true with respect to employer negligence. However, where the employee is able to establish much more than negligence, there is the intentional tort exception to the exclusive remedy rule.

For instance, in McNees v. Cedar Stampings, Co., 184 Mich App 101 (1990) allegations that an employee was injured by a defective foot pedal while operating a stamping press was sufficient to state a claim for intentional tort. That is because the employer was aware of the defect but still ordered the employee to operate the press while knowing that an injury was likely to occur under the circumstances.

If you or a loved one have been injured at work and need legal advice, please feel free to call Guy Vining. All initial consolations are free of charge and all injury cases are handled on a contingency fee basis so that you have no obligation unless you prevail in the case.

Guy Vining practices personal injury law from his Metro-Detroit office in Taylor, Michigan. He has represented clients in personal injury actions for over 25 years in such areas as: car, boat, motorcycle, and truck accidents; slip, trip, and falls including black ice and defective design; medical and dental malpractice, denial of insurance benefits for wages, medical and home assistance to automobile accident victims.

Bankruptcy Cases in the News

Bankruptcy Cases in the News

             The 6th Circuit Court of Appeals (which covers Michigan) issued a very important decision in Richardson v. Schafer, 689 F.3d 601 (6th Cir., 2012). The case is noteworthy because it is of assistance to debtors in their bankruptcy case by allowing them to retain more property.

In this case, the debtor elected to exempt property under the Michigan State Bankruptcy Exemptions instead of the Federal Exemptions. The selection was probably because the debtor had a great deal of home equity protectable as tennants by the entireties (marital home) laws and little joint debt. The trustee, to unlock value for unsecured creditors argued that the Michigan Bankruptcy Exemptions were unconstitutional and that the debtor was only allowed the lesser exemptions provided by the general exemptions statute in Michigan.

The 6th Circuit Court of Appeals disagreed. It held that Michigan debtors were allowed to use either set, i.e., the general exemptions under MCL 600.6023 or the Bankruptcy Exemptions under MCL 600.5451. Generally speaking the latter is more generous to debtors. This allows the debtor to retain more property for his/her fresh start. The bottom line was that the Michigan Legislature did not violate the Constitution by intruding in a Federal law.

Proper exemption planning is critical to a successful outcome in a bankruptcy case. If you or a loved one would like information concerning protection from creditors and obtaining a fresh start, just call Guy Vining. Guy Vining is pleased to discuss your situation confidentially, and without initial charge.

Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

Bankruptcy Cases in the News: Federal and State Exemptions

Bankruptcy Cases in the News

Federal and State Exemptions

     Under the Bankruptcy Court, a debtor may elected between two sets of exemptions in a Chapter 7 case, the Federal exemptions, or (in Michigan) the Michigan exemptions. Generally, the Federal exemptions give the greatest coverage of property to the debtor. Exempt property is property that the debtor gets to keep from creditors and the trustee, which forms the basis of his or her fresh start going forward.

     In certain interesting circumstances, however, the Michigan exemptions are more favorable to the Chapter 7 debtor and should be elected. For instance, under the Federal exemptions, exemptions about $42,000.00 in home equity can be exempted by a married couple. However, if the home is jointly owned as entireties property (husband and wife) either may file individually a bankruptcy and exempt their entire equity, no matter how great, from all individual creditors.

     That is because the historical purposes of the state law favors protecting an innocent spouse from the debts of his or her spouse to preserve their primary residence. This concepts has been explored and defined in several published court decisions. For instance, see: In re: Trickett, 14 Br 85 (Bank W.D. Michigan) 1981; and, In re: Grosslight, 757 F2d 773 (6th Cir. 1985).

     One of the keys to this relief is the absence of joint indebtedness. So, if the non-filing debtor is jointly responsible on some of the incurred debt, the trustee may argue that it should be allowed to administer the estate (sell the martital home) to the extent of the joint obligations. Still, this type of harsh relief must be examined on a case-by-case basis as noted by Judge McIvor in In re: Edwin Harlin, 325 BR 184, 189 (Bank E.D. Mich) 2005:

“As a general rule, courts have been very reluctant to apply 11 USC §363 (h) to allow the sale of entireties property owned by the debtor, and a non-debtor spouse. The case law is well summarized in Collier on Bankruptcy as follows: Disputes over the applicability of a section (h) to tenancies by the entireties have created the largest number of reported cases under section, perhaps because of the unique nature of the ownership interest, the variations among the states as to the nature of the interest and the rather draconian remedy that section 363(h) gives the trustee, contrary to the deep historical roots of the form of title, which is supposed to protect each spouse from the unilateral action of the other… Thus, although generally speaking property held by the debtor as tenant by entirety is subject to sale under section 363(h), courts have erected various obstacles to such sale.”

     This suggests, of course, that married couples should strongly consider never co-signing for the other and avoid all joint debt. Also, they might consider making sure to concentrate payments to reduce and eliminate joint debt as a priority over individual debt, in the ordinary of their payments.

     If you or a loved one are considering whether bankruptcy relief would be helpful for you, please make sure to consult a qualified debt relief agency/attorney. Guy Vining is available for a no-charge initial bankruptcy consultation and would be pleased to meet with you.

Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

Negligence Cases in the News: Hospital Malpractice Cases

Negligence Cases in the News:

Hospital Malpractice Cases

The Buffalo News reported recently a distressing story. It has been alleged by several citizens that a local hospital caused them to become infected with hepatitis. Specifically, in a suit filed each alleges that the source of the disease was the hospital staff inappropriately reusing surgical needles that had been used on other patients, a definite cause of hospital malpractice.

Generally speaking, it is well known that hospitals, because of ill patients, can be a dirty environment from which a patient can contract a generalized infection. Its a risk, in other words, that can not be eliminated. For this reason, the usual medical negligence or hospital malpractice case will be dismissed, so long as, the hospital is able to establish that it implements industry approved sanitation and sterilization processes.

On the other hand, where a discrete source of infections can be established based upon a violation of industry standards, and then an injured patient may have a cause of action. Certainly if it was proven or admitted that needles were reused without sterilization, that could be a discrete cause of an infection. Another common scenario for either hospital negligence, or even hospital malpractice, is the failure to remove all instruments, bandages, or gauze after a surgery. These foreign objects are many times the source of post surgical failure to heal, pain, and infection.

Guy Vining, an experienced personal injury attorney, in metro-Detroit, maintains his office in Taylor, Michigan where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member or friend would like a no-obligation, no cost, consultation/financial analysis, just call or Email Guy Vining of Vining Law Group, P.L.C. to schedule a meeting.

Negligence Cases in the News: Consumer Protection Actions

Negligence Cases in the News:

Consumer Protection Actions

On a “lighter note” Bloomberg has recently reported that lawsuits have been filed against Anheuser-Busch by consumers in several states via the Consumer Protection Actions. Yep, it is alleged that the old “King of Beers” is ripping off consumers because it adds water to the finished product which diminishes the alcohol content. Say it ain’t so!

     In Michigan, the State Legislature enacted the so-called Consumer Protection Act years ago. See MCL 445.901. This act provides for damages and injunctive relief to protect consumers from various types of bait-and-switch, misrepresentations and consumer scams.

     If you or a loved one have any questions about the Michigan Consumer Protection Act, please fee free to call Guy Vining of the Vining Law Group, PLC, for a free consultation.

[Guy Vining practices personal injury law from his Metro-Detroit office in Taylor, Michigan. He has represented clients in personal injury actions for over 25 years in such areas as: car, boat, motorcycle, and truck accidents; slip, trip, and falls including black ice and defective design; medical and dental malpractice, denial of insurance benefits for wages, medical and home assistance to automobile accident victims.]

Personal Injury Cases in the News: Medical Malpractice

Personal Injury in the News:
Medical Malpractice

 

The Toledo Blade recently reported a suit by an Ohio resident against a hospital which allegedly failed to diagnose bleeding in the patient’s skull. The allegation is that the undiagnosed condition resulted in stroke and physical disability.

 

A common type of medical malpractice case is the “failure to diagnose,” or the “failure to monitor” case. The pattern is that illnesses have various abnormal presenting signs which need to be considered through a process of differential diagnosis to determine and treat the cause. The medical professionals are supposed to be acquainted with the various abnormal signs and develop a differential diagnosis of what the cause possibly is and then perform tests to rule them in or out. A missed diagnosis is a very serious matter, and can result in serious injury or death.

 

As an example, consider the condition of ectopic pregnancy. In years past, Guy Vining represnted several victims of this conditions. An ectopic pregnancy is the development of a fetus outside of the uterus, usually into a fallopian tube. The warning signs include swelling and extreme pain in the patient. The risk is extreme, too, because if the fetus is not timely removed, the falliopian tube may rupture leading to the patient’s death by bleeding. The practitioners therefore must have a high index of suspicion for ectopic pregnancy when presented with a young woman and these symptoms. Appropriate care would include taking a history of sexual activity, last menses, ordering a pregnancy test and an ultrasound.

 

As earlier mentioned, if the diagnosis is not made, the rupture can lead to loss of the fallopian tube or even death. If you or a loved one have suffered the loss of a fallopian tube or another serious personal injury because of the failure to make a medical diagnosis, you may have have a compensible loss. Be sure to promptly get advice from a qualified attorney in regard to your personal injury.

 

[Guy Vining practices personal injury law from his Metro-Detroit office in Taylor, Michigan. He has represented clients in personal injury actions for over 25 years in such areas as: car, boat, motorcycle, and truck accidents; slip, trip, and falls including black ice and defective design; medical and dental malpractice, denial of insurance benefits for wages, medical and home assistance to automobile accident victims.]

Personal Injury Cases in the News: Defective Road Injuries

Personal Injury Cases in the News:
Defective Road Injuries.

 

     Guy Vining was recently able to enter into a significant settlement, for a client, with a governmental agency involving a defective highway. The client-victim was a motorcyclist who, although operating his bike appropriately, was caused to fall due to wavy and defective pavement.

 

     Guy Vining was able to establish that the governmental agency was on notice of the defective condition and pursuant to MCL 691.1402 that liability should be imposed for failure to maintain the road in reasonable repair.

 

     If you or a loved one are injured due to defective roads, you must take action quickly. The law requires that you provide a statutory notice within 120 days (about 4 months) from the accident. This notice is required by MCL 691.1404 and if notice is not timely and properly given it will bar your legal actions. You will also need to move quickly to obtain measurements and photographic evidence and an expert witness knowledgeable of road defects such as longitudinal cracking, traverse cracking, alligator cracking, deep and long wheel rutts in black top and other irregularities.

 

     These conditions are particularly dangerous to bicyclists and motorcyclists. Please feel free to call for a no-cost consultation if you or a loved one were injured on a defective road or highway. You need to speak to a personal injury attorney immediately. At the Vining Law Group all telephone conferences and initial meets are free. Also, most personal injury representation is on a contingency fee basis, so that you do not need to pay out of pocked for legal fees to get the help you need.

 

Guy Vining, an experienced personal injury attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member or friend would like a no-obligation, no cost, consultation/financial analysis, just call or Email Guy Vining of Vining Law Group, P.L.C. to schedule a meeting.

Bankruptcy Cases in the News

Bankruptcy Cases in the News

Early in August 2012, local Bankruptcy Court Judge Walter Shapero decided an interesting case that sheds light for lay-persons interested in debt relief and for local practitioners, too. This case is In re Kenneth C. Farkas and may be found at Case No.: 11-59772.

In this case a young-ish debtor with a sizeable 401(k) had taken loans against his 401(k) which required payments of around $850.00 to repay the 401(k) loans. On his Schedule I, debtor scheduled monthly loan repayment and that the net income after this and other expenses was less than $20.00. According to debtor therefore he was qualified for Chapter 7 relief – but, the Trustee objected and argued that under 11 USC 707(b)(3) and the totality of the circumstances that this deduction was unfair and should be considered disposable income to be shared with all creditors. Judge Shapero on the facts of this case agreed with the United States Trustee, noting:

    “Disposable income” is defined under the Bankruptcy Code as income received by the debtor which is not reasonably necessary for the maintenance or support of the debtor or a dependent of the debtor. 11 U.S.C. §1325(b)(2)(A)(i). This Court has explicitly rejected adopting a per se rule requiring the inclusion of 401(k) contributions in disposable income. In re Beckerman, 381 B.R. 841, 848 (Bankr. E.D. Mich. 2008). Instead, as is required by the plain language of §707 (b)(3) and this Court’s interpretation of the Sixth Circuit precedent, the reasonableness of the debtor’s expenses, including payments made into a 401(k), must be determined on a case-by-case basis looking at the totality of the debtor’s individual circumstances. Id at 848. In this case, the amount of Debtor’s existing retirement savings, as well as his age and time left until retirement, persuades the Court that his 401(k) loan repayments are not reasonably necessary for his maintenance or support, and are therefore includable in his disposable income.

Since the debtor had a sizeable retirement account and many years before his retirement the inclusion of the loan as a form of monthly disposable income was determined to be unfair to other creditors. Judge Shapero calculated that in a Chapter 13 plan the creditors would be more fairly treated and would receive about an 18% dividend. He noted that the Sixth Circuit Court of Appeals in re Behlke, 358 F.3d 429, 434 (6th Cir. 2004) had earlier determined that even a 14% dividend was a meaningful dividend.

Therefore, it was determined that the case must be dismissed – for ability to pay – or converted to a Chapter 13. It, again, bears nothing that the Bankruptcy Rules are designed to provide equitable treatment to all the actors. Therefore, where disposable income is being spent is fanciful ways or ways which discriminate against other creditors a discharge may be challenged as abusive. In such ceases, the debtor’s fresh start and discharge may be conditioned upon providing some disposable income via a Chapter 13 plan to all unsecured creditors over a period of 60 months.

[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]

Personal Injury Cases in the News

Personal Injury Cases in the News

The San Francisco Chronicle reported recently a large settlement in a case against a “distracted driver.” Specifically, the driver was preoccupied with texting and not paying attention to his duties of safe driving. The defendant- driver’s negligence caused catastrophic injuries including the loss of a leg.

At the Vining Law Group we have represented many, many accident victims of distracted drivers. The causes have ranged from applying make-up, dropping a cigarette, cell phones and the like. In Michigan an inattentive operator who causes personal injury and other damages from a collision is liable to pay for the losses caused. This is both at common law and for statutory violations. For instance, MCL 257.627 makes it unlawful to operate a vehicle in a manner that would not permit it to be stopped in the clear assured distance ahead; and, MCL 257. 626(b) makes it unlawful to operate without due diligence and circumspection so as to be likely to endanger others.

If you would like more information concerning your rights in automobile accidents or other personal injury matters, please feel free to contact Guy Vining for a free and confidential conference.

Guy Vining, an experience personal injury attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member or friend would like a no-obligation, no cost, consultation/financial analysis, just call or Email Guy Vining of Vining Law Group, P.L.C. to schedule a meeting.

Bankruptcy Cases in the News

Bankruptcy Cases in the News

In previous blog postings we have discussed on many occasions the basic tenet that the honest debtor is entitled to relief of a discharge in bankruptcy. But what about those debtors that are dishonest or engage in risky behavior that implicate or harm others. The Bankruptcy Code provides for these types of cases in 11 USC 523 as exceptions to the general rule that in exchange for full disclosures and non-exempt assets that a debtor can obtain a complete discharge and a fresh start. In addition, a body of judge made decisions had also developed interpreting the various parts of 11 USC 523.

Most of the exceptions to discharge are common sense and are not surprising. For instance, debts arising from fraud, false pretenses, misrepresentations, luxury charges made on the eve of filing bankruptcy, child support, alimony, taxes and other types of intentional injuries. These are matters which evidence dishonorable conduct or a bad actor that should not be assisted.

In a very recent case Judge Walter Shapero of the U.S. Bankruptcy Court, Eastern District, Southern Division of Michigan decided a very interesting case. In that case it was fairly undisputed that the debtor was a very reckless driver of an automobile which led to an automobile crash causing personal injuries. When the debtor filed her bankruptcy In re Gumprecht, Case No.: 11-47982; Ad. Pro. No. 11-05909, the injured party objected to the discharge as being unfair based upon 11 USC 523(a)(6) a willfully caused injury. As mentioned the evidence showed that the debtor’s driving was horrendous but there was nothing to show that an injury was specifically intended or willful and malicious. Judge Sharpero held that the case must be reviewed under the standards announced in Kawaauhau v. Geiger, 523 U.S. 57 (1998) and in re Markowitz, 190 F3d 455 (6th Cir. 1999). As such, he stated:

    Until 1999, the Sixth Circuit’s standard for § 523(a)(6)’s “willful” requirement was rather lenient. As long as a debtor could be shown to have intentionally committed an act which led to an injury, he would be found to have acted “willfully” under § 523(a)(6), regardless of whether or not he actually intended the injury. Perkins v. Scharffe, 817 F.2d 392, 394 (6th Cir. 1987). Perkins was overruled in 1998 by the U.S. Supreme Court case of [Geiger]. In Geiger, the Supreme Court held that only acts done with the intent to cause the actually injury will rise to the level of a “willful and malicious injury” as used in § 523(a)(6): We now hold that unless “the actor desires to cause consequences of his act, or… believes that the consequences are substantially certain to result from it,” he has not committed a “willful and malicious injury” as defined under § 523(a)(6). [Markowitz, 190 F.3d at 464.]

Under the new standard the burden of proof is much higher for the creditor. For that reason Judge Shapero determined that the facts that the creditor could establish were insufficient and dismissed the objections to discharge.

[Guy Vining, a bankruptcy attorney, in metro-Detroit, maintains his office in Taylor, Michigan, where he serves the downriver communities of Monroe, South Rockwood, Gibraltar, Brownstown Township, Grosse Ile, Woodhaven, Trenton, Southgate, Riverview, Allen Park, Lincoln Park, Dearborn, Dearborn Heights, Westland, Wayne, and Ecorse. If you or a family member of friend would like a no-obligation no cost consultation/financial analysis, just call or E-mail Guy Vining of Vining Law Group, P.L.C to schedule a meeting.]