Loaned Employees

April 2015 Newsletter

Loaned Employees

Responsibility for the payment of workers’ compensation benefits is a joint affair when one employer loans its employee to another employer. If the employee is a party to a contract for hire with the third-party employer, the work performed by the employee is principally for the third-party employer, and the third-party employer controls the details of the employee’s work, the third-party employer will be held responsible for workers’ compensation benefits should the employee become injured. The element of control is a substantial factor is determining the employment relationship between the parties.

The necessity of a contract for hire with the third-party employer is rather important. Principally, when the employee enters into an employment relationship with the third-party employer, he is giving up the right to maintain a common law negligence action. The relinquishment of such a right makes it imperative that the employee makes an informed and conscious decision to enter into a contract for hire with the third-party employer. To require otherwise would effectively allow others to eradicate the rights of the employee.

The nature of the employee’s work is a guiding force in determining workers’ compensation liability. If the employee’s work is solely for the benefit of the third-party employer, chances are good that compensation for the worker’s injury will fall to the third-party employer. However, where both employers have an interest in the employee’s work, with such work being beneficial to them both, the responsibility for workers’ compensation will fall to both employers.

Federal Employers’ Liability Act

March 2015 Newsletter

Federal Employers’ Liability Act
The Federal Employers’ Liability Act (FELA) is not a workers’ compensation statute. Rather, it is an alternative avenue by which railroad workers who are injured on the job may be compensated. The FELA allows an injured railroad worker to pursue a negligence action against his employer for lost wages, medical costs, pain and suffering, and permanent and partial disability. Should the injury result in the railroad worker’s death, the FELA also authorizes an action by the worker’s surviving dependents. The damages recoverable by a dependent include those for pain and suffering, funeral expenses, and that part of the worker’s earnings that were actually used to support the dependent. Notably, though, the employee’s contributory negligence will diminish any recovery.
Unlike workers’ compensation statutes where proof of fault is unnecessary, a recovery under the FELA requires that and more. Injured railroad workers must not only prove that the railroad engages in interstate commerce but also that the worker’s injury was caused by either the negligence of a railroad employee, agent, or officer or that the injury was caused due to a defect or insufficiency, caused by negligence, in the railroad’s machinery, cars, engines, tracks, etc. The basis for the action stems from the railroad’s duty to provide a safe working environment for its employees.
A FELA lawsuit can be brought in the state where the injury occurred or where the carrier resides or does business. A three-year statute of limitations window applies to actions under the FELA with differing dates of accrual based on the nature of the injury. For instance, the limitations period runs from the date of injury for personal injuries while the limitations period runs from the date of death in cases where the worker suffered a fatal injury. Likewise, the three-year limitations period for occupational diseases or cumulative injuries runs from the date that the worker knew or should have known of the disease/injury and its link to the worker’s employment.

The Tort Definition Debate

February 2015 Newsletter

The Tort Definition Debate
Apart from legislation granting a right to sue for a specific harm, personal injury law generally consists of tort law and the civil procedure for enforcing it. Although tort law is a major kind of law, among many legal scholars there is no generally agreed definition of the word “tort.” This article discusses the tort definition debate.
Professor Prosser
In the late 20th century, one of the leading texts on the topic of torts was professor William L. Prosser’s Handbook of The Law of Torts. The professor defined the debate in his first sentence: “A really satisfactory definition of a tort has yet to be found.” Although he presented several definitions of a tort, he concluded that no single definition adequately captured its essence.
Judge Rogers
A judge in Baltimore, Maryland, however, was not so hesitant. In a Case & Comment magazine article entitled “From Tort to Tortilla (A Fascinating Family of Words),” judge Henry L. Rogers pointed out that the Latin version of the word is “torqueo, torquere” meaning “to twist.” The judge concluded that “one who commits a tort is acting in some kind of twisted way.” Accordingly, a tort is twisted conduct for which its victim is permitted to sue its perpetrator.
Professor Prosser 2
Although he said that there was no satisfactory definition of a tort, professor Prosser did offer one. He noted that the word tort “was at one time in common use in English as a general synonym for ‘wrong’.” Clearly, a tort was a wrong. Professor Prosser concluded that “Broadly speaking, a tort is a civil wrong, other than breach of contract, for which a court will provide a remedy in the form of an action for damages.”
More Observations
Between professor Prosser and judge Rodgers it can be said that a tort is a twisted conduct. It is twisted conduct that is a civil wrong. It is a civil wrong for which a victim can bring an action other than breach of contract (or some other major kind of law). A tort law action is an action for money damages.
Inherent in the law is the idea of setting standards. Torts can also be viewed as standards of conduct apart from criminal law and other major kinds of law.
Your Lawyer
The are many kinds of wrongful conduct. Your lawyer can advise you as to whether the circumstances of your case give you the right to sue under tort law.

Professional Rescuers

January 2015 Newsletter

Professional Rescuers
A rescuer who comes to the aid of a victim of a peril may be either an amateur or a professional, such as a firefighter or a police officer. With respect to amateur rescuers, the “rescue doctrine” may apply to allow the rescuer to recover against the creator of the victim’s peril for injuries that he sustains during the rescue. However, professional rescuers are generally unable to rely on the rescue doctrine to recover for their injuries. Instead, the “fireman’s rule” ordinarily prevents professionals from recovering without regard to the negligence of the creator of the peril.
Rationale for Fireman’s Rule
The fireman’s rule prevents a professional from recovering for his injuries under the rescue doctrine for several reasons. Because it is the professional’s business to save lives and prevent injury to persons and property, he already acts under a duty imposed upon him. Thus, the purpose of the rescue doctrine, which is to encourage a non-obligated person to come to a victim’s aid, does not apply to a professional. A professional is also not permitted to recover because he voluntarily assumes the risk of the dangers that result in injuries by deliberately selecting an occupation in which such hazards are inherent. In addition, professionals do not need the rescue doctrine to recover for their injuries because they are generally covered by accident insurance.
Assumption of the Risk
The doctrine of assumption of the risk is a commonly asserted ground for denying recovery to professionals for their injuries sustained during a rescue. A professional does not assume the risk on a hazard-by-hazard basis; rather, there is an assumption of risk upon commencement of the employment.
However, the fireman’s rule bars recovery only for those injuries resulting from the normal risks of the employment. Thus, if a professional is injured due to extraordinary dangers not inherent in his work, he may rely on the rescue doctrine to recover, even if he has gone beyond the scope of his designated duties. In addition, a professional typically does not assume any increased risk caused by the creator of the peril. For example, if a homeowner fails to warn a firefighter of a known, hidden peril, the homeowner may be liable if such peril causes injury to the firefighter.
Volunteers and Off-Duty Professionals
Some courts permit volunteer firefighters to sue under the rescue doctrine for the injuries they sustain and do not apply the fireman’s rule to them. This is so because they may not recover under any work-based accident insurance. However, the assumption of the risk defense still may apply and bar recovery because a volunteer fireman is just as aware as a paid fireman of the hazards inherent in the work.
An employed fireman who responds to a fire while off-duty is generally regarded as an on-duty firefighter. Thus, the fireman’s rule will apply to bar his recovery for injuries.
Nature of the Defendant’s Conduct
The fireman’s rule may not bar a professional’s recovery based on certain conduct by the creator of the peril. If the creator of the peril violated a statute or ordinance that was intended to protect firefighters or police officers, the creator of the peril may be liable for the professional’s injuries arising from the violation. In addition, if the creator of the peril intentionally created the hazard to which the professional responded (e.g., an arsonist set a fire), the fireman’s rule is usually not applied to bar the professional’s recovery for his injuries sustained during a rescue.

Federal Teacher Protection Act

Federal Teacher Protection Act | How it Preempts State Law

The Federal Teacher Protection Act (TPA) preempts state laws to the extent that such laws are inconsistent with the provisions of the TPA. However, the TPA does not preempt state laws that provide additional protection from liability to school employees.

The following types of state laws are not inconsistent with the TPA:

  1. A state law that requires a school or governmental entity to adhere to risk management procedures, including mandatory training of teachers;
  2. A state law that makes the school or governmental entity liable for the acts or omissions of its teachers to the same extent as an employer is liable for the acts or omissions of its employees; and
  3. A state law that makes a limitation of liability inapplicable if a civil action was brought by an officer of a state or local government under state or local law.

The TPA automatically applies to all states. However, a state may repeal the TPA by enacting legislation that declares the state’s election not to apply the TPA.

How the Federal Teacher Protection Act Applies to You

The TPA may apply to you if you are a teacher, principal, or other school professional. Should you have any question about whether or not you should worry about the TPA, give us a call at 877-781-7246, or Request an Appointment now.

Defamatory Statements

November 2014 Newsletter

Defamatory Statements
A lawsuit for defamation has the following basic elements: (1) making a false statement; (2) about a person; (3) to others; and (4) actual damages (if the harm to the person is not apparent). There is a fifth element when the person is a public official or public figure. In such a case, the person who made the statement has to have made it with a known or reckless disregard of the truth. This article discusses the first element, making a false statement. A false statement of fact about a person that tends to harm the person’s reputation is known as a defamatory statement.
To be a defamatory statement, the statement must be a statement of facts that, if believed, would cause a substantial group of respectable people to lower the esteem in which they hold or regard the person or deter them from associating with the person (e.g., “He’s a drug addict.”). If only the person or only a few people believe that the statement tends to harm the person’s reputation, the statement is not defamatory (e.g., “He’s a genius.”)
Proving That a Statement Is Defamatory
Sometimes it is easy to prove that a statement is defamatory, because the statement clearly harms a person’s reputation (e.g., “She may have her name listed in the Yellow Pages under Interior Decorators, but she is a lousy interior decorator.”)
Sometimes it is difficult to prove that a statement is defamatory because the statement alone does not clearly harm a person’s reputation (e.g., “He is a butcher.”). If it is not clear how the statement is defamatory, the person must show facts not in the statement (e.g., that the person is a chef in a five-star restaurant) and explain how the statement is defamatory (e.g., that describing the person as a butcher created the false impression that he was not a skilled chef competent to work in a five-star restaurant). The showing of facts not in the statement is known as the inducement. The showing of how the statement is defamatory is known as the innuendo.
Notice that a statement not defamatory in itself cannot be made defamatory by innuendo alone. Innuendo merely clarifies the application of the statement. Innuendo alone cannot change the original language of the statement or enlarge the statement. For example, a person cannot contend that when someone said “you’re a wonderful doctor” what was really meant was “you’re a quack” (unless it can be shown that the statement was in a code understood by the audience).
Can You Defame a Dead Person?
In most states, you cannot defame a dead person because a lawsuit for defamation does not survive the death of the person who has allegedly been defamed. In essence, the reputation of a dead person is left to history. Note, however, that a statement made about a dead person may defame a living person. For example, if someone claims that your deceased mother was not married to your father when you were born, when in fact your mother was married to your father when you were born, it has been falsely claimed that you are a bastard.

The Bill Emerson Good Samaritan Food Donation Act

October 2014 Newsletter

The Bill Emerson Good Samaritan Food Donation Act
What is the Bill Emerson Good Samaritan Food Donation Act?
The Bill Emerson Good Samaritan Food Donation Act is a federal law designed to encourage the donation of food and grocery products to nonprofit organizations by limiting the legal liability of donors. The Act is named after its sponsor, Bill Emerson, a former member of the U.S. House of Representatives from Missouri. President Bill Clinton signed the Act into law in 1996.
To whom does the Act apply?
The Act applies to a person or entity that donates food or grocery products in good faith to a nonprofit organization for distribution to needy individuals.
How does the Act limit the liability of donors?
The Act provides that a donor is not subject to civil or criminal liability arising from the donated food or grocery product in the absence of gross negligence or intentional misconduct. For example, a donor gives a box of cereal to a nonprofit food bank. The food bank gives the cereal to a needy recipient. The recipient becomes ill as a result of eating the cereal. Under the Act, the donor will not be legally liable for the recipient’s illness unless the donor is guilty of gross negligence or intentional misconduct in connection with the donation of the cereal.
Gross negligence means voluntary and conscious conduct (including failure to act) by any person who, at the time of the conduct, knew that the conduct was likely to be harmful to the health or well-being of another person. Under the Act, the donation of food that is close to the date of recommended retail sale is, in and of itself, not grounds for finding gross negligence. For example, if the donor gave the cereal to the food bank in August of 2004, and the expiration date on the box was September 2004, the donor is not guilty of gross negligence.
Intentional misconduct means conduct by a person with knowledge (at the time of the conduct) that the conduct is harmful to the health or well-being of another person. If the donor knew that the cereal was tainted with poison when he gave it to the food bank, then the donor is guilty of intentional misconduct and will be liable for the recipient’s illness.
Does the Act preempt state law?
The Act sets a minimum level of protection for donors of food and grocery products to nonprofit organizations. Therefore, if a state law offers less protection to donors, then the Act is controlling. If a state law affords a higher level of protection to donors, then the state law is valid.

Tax Claims in Bankruptcy

The treatment of tax claims in bankruptcy proceedings is an attempt to reconcile two conflicting policies. The first policy concerns the government’s interest in collecting taxes. The second policy concerns the fresh start that bankruptcy is to give honest debtors. Under the Bankruptcy Code, a debtor’s ability to discharge any tax debt is based upon the classification of that particular tax debt.

Characterization of Tax Claims

A tax claim can be characterized as a:

  • trust fund tax,
  • secured claim,
  • administrative tax claim,
  • priority tax claim, or
  • general unsecured claim.

The debtor holds trust fund taxes, which have been collected by the debtor from third parties, in trust for the appropriate taxing authority. The amounts held in trust are not property of the debtor or of the bankruptcy estate. The taxing authority will have a priority tax claim if the debtor failed to collect and/or remit a trust fund tax to the appropriate taxing authority.

Secured claims are claims that are secured by a lien on the debtor’s property. A claim is secured to the extent of the value of the property securing the claim.

Administrative tax claims consist of taxes that have accrued during the pendency of the bankruptcy. The Bankruptcy Code accords administrative status to any tax that is incurred by the estate with two exceptions.

Priority tax claim status is granted to certain allowed unsecured claims of governmental units.

General unsecured tax claims are taxes that are not entitled to secured or administrative tax claim status. Generally, these are old claims that are not entitled to qualify for priority tax claim status.

Dischargeability of Tax Claims in Bankruptcy

Taxes may be discharged in bankruptcy either through liquidation or reorganization. In a liquidation proceeding, the taxes of an individual may be discharged. Taxes may also be discharged pursuant to a Chapter 11 plan. Discharges under Chapter 13 are available to individual wage earners upon the confirmation of a plan of reorganization. Certain tax liabilities may be discharged under Chapter 13 that are not otherwise dischargeable. Also, under Chapter 13, creditors must file a proof of claim with the Bankruptcy Court. However, a governmental unit is not required to file a request for payment of an administrative expense for a tax or a tax penalty as a condition to allowance of an administrative expense.

Dischargeability Determination

Whether taxes are priority tax claims or general unsecured claims determines their dischargeability. A priority claim is nondischargeable. A taxpayer must file a tax return in order to get a discharge of the tax liability. Taxes are nondischargeable if the debtor files a fraudulent return or willfully attempts to defeat taxes. Fraud includes activities such as submitting false withholding statements for the purpose of eliminating withholding and failing to report embezzlement income. Willful attempts to evade or defeat tax liabilities include concealing assets and failing to file returns or to pay taxes over an extended period. Federal tax liens are not discharged even if the underlying taxes are discharged.

Nondischargeable Debts in Bankruptcy

Dischargeable debts are those debts that can be discharged through bankruptcy proceedings. Certain debts cannot be discharged through a bankruptcy proceeding.

In a Chapter 7 bankruptcy, nondischargeable debts cannot be discharged at all, and in a Chapter 13 bankruptcy, these debts remain even after the repayment plan is completed.

Common Nondischargeable Debts

The following claims are generally found to be nondischargeable:

  • Alimony, child support, and any debts in the nature of support
  • Student loans, unless repayment would cause undue hardship
  • Court-ordered restitution owed to either a court or a victim
  • Debts not listed on the bankruptcy petition
  • Some property settlements
  • Certain fines or penalties
  • Debts incurred from driving under the influence of alcohol or drugs
  • Most federal, state, and local taxes and any money borrowed on a credit card to pay those taxes
  • Fees imposed by a court for the filing of a case, motion, complaint, appeal, or for other costs and expenses assessed with such filing
  • Debts that could not be discharged in a prior bankruptcy that was dismissed due to fraud or misfeasance
  • Debts for purchases of more than $ 1,225 in luxury goods or services or cash advances within 60 days of filing for bankruptcy
  • Credit card purchases made within 60 days of filing for Chapter 7 bankruptcy.

Adversary Proceeding to Get Nondischargeable Debts Discharged

To get any of the above debts discharged, a debtor needs to file a Complaint to Determine Dischargeability of a Debt with the bankruptcy court and must show, in court, that the debt is not covered by the general rules that state these debts are not dischargeable. This is considered an adversary proceeding.

Dischargeable Debts Unless Objected to by Creditor

The following four categories of debts are discharged unless a creditor objects to dischargeability:

  • Debts incurred on the basis of fraudulent acts
  • Debts from willful or malicious injury to another or their property, including assault, battery, false imprisonment, libel, and slander
  • Debts from larceny, breach of trust, or embezzlement
  • Debts arising out of a marital settlement agreement or divorce decree that are not otherwise automatically nondischargeable as support or alimony.

For More Help

You can read more about bankruptcy and contact our bankruptcy team for more help on the Allen Turner Law Bankruptcy site.

Employment of Professionals

July 2014 Newsletter

Employment of Professionals
The Bankruptcy Code governs a trustee’s or debtor in possession’s employment of attorneys, accountants, appraisers, auctioneers and other professional persons to represent or assist in carrying out duties under the Bankruptcy Code. Generally, the trustee or debtor in possession had broad latitude in the selection of professional persons to be employed. The Bankruptcy Code authorizes the employment of professional persons only to the extent that such persons do not hold or represent an interest adverse to the estate.
The Bankruptcy Code requires that the trustee file with the court an application specifying the facts demonstrating the necessity for the employment, the name of the person to be employed, the reasons for the selection, the professional services to be rendered, and any arrangement for compensation. The application for employment as well as an accompanying verified statement of the professional person to be employed must set forth all known connections of the applicant or professional person with the debtor, creditors, any other party in interest, their respective attorneys and accountants, the United States Trustee, or any person employed by the United States Trustee. However, a person will not be ineligible for employment as a professional solely because the person was an investment banker for a security of the debtor, or was an attorney, director, officer, or employee of such investment banker.
An application for employment must be filed with the court prior to performance of services by the professional sought to be employed. Failure to obtain prior court approval may result in a denial of fees for any pre-approval services.
The determinative question in approving the employment of a professional person is whether it is reasonably necessary in the administration of the estate to have professional persons, such as attorneys or accountants, employed. An attorney for a trustee should not be employed unless the attorney’s special professional skills are necessary for the protection and benefit of the estate or will further the aims of the case. The court makes this determination, and a refusal to approve the employment should not be interfered with on appeal in the absence of an abuse of discretion. Nevertheless, the actual selection of attorneys or other professional persons rests with the trustee.
An attorney, accountant, or other professional person may be employed only to perform professional services. Attorneys and accountants may not be employed and will not be compensated for services that the Bankruptcy Code identifies as administrative duties of a trustee. Professionals may not assume the duties of a trustee and then claim compensation for performing legal, accounting, or other professional services.