Resources

Mar 16, 2018 - Personal Injury

The Eggshell Plaintiff Rule in Pennsylvania Injury Lawsuits

If you have been injured in an accident that was caused by another person, you may be entitled to compensation, pursuant to Pennsylvania law.  Your ability to recover damages can be somewhat complicated, however, by the particular circumstances of your injury. In Pennsylvania, and in other jurisdictions throughout the country, those who suffer from preexisting conditions that make them more “fragile” and likely to suffer severe injury are commonly referred to as eggshell plaintiffs.  For example, if you suffer from very high blood pressure, you may be more likely to sustain a serious heart attack in the event of a stressful accident scenario.  Depending on the circumstances, you would therefore be considered an eggshell plaintiff. Despite suffering substantial losses as a consequence of their accident, many eggshell plaintiffs avoid litigating their claims, as they may not be familiar with the particularities of the law and their right to recover damages.  These plaintiffs may incorrectly believe that — because their injuries are “disproportionate” — they may not be entitled to a remedy for such injuries.  In reality, however, eggshell plaintiffs are entitled to compensation for their injuries, even if those injuries would not have occurred in a healthier person. Causation Can Be a “Fuzzy” Issue For an injured plaintiff to succeed in their lawsuit, they must show that the defendant not only acted negligently, recklessly, or intentionally, but that the conduct of the defendant was the substantial and proximate cause of their injuries.  Causation can be a fuzzy matter, in some […]

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Mar 14, 2018 - Wrongful Death

What is the Difference Between a Survival Action and a Wrongful Death Action?

In Pennsylvania, when a person has died due to the negligent, reckless, or intentional actions of another, their surviving family members may have the right to recover damages pursuant to a survival action.  Though many people are familiar with wrongful death actions (recovering damages that arise from the loss of a loved one), there tends to be quite a bit of confusion regarding survival actions and what makes them unique. How Survival Actions Differ From Wrongful Death Actions Survival actions are lawsuits brought by qualified family members of the deceased to recover damages that would have been owed to the deceased had they survived.  Survival actions are governed by section 8302 of the Pennsylvania Consolidated Statutes, which states that all causes of action (or proceedings) will continue after the death of the plaintiff. What does this mean, exactly? Suppose that your father has passed away due to fatal injuries that they incurred in a motor vehicle accident.  The defendant was distracted at the time of the accident, and their erratic driving caused the collision and your father’s subsequently fatal injuries.  Your father did not die immediately, however.  In the aftermath of the accident, there were weeks of treatment, which ultimately failed. Now, your father would have had the right to sue and recover damages for the losses he sustained following the accident, and before they died.  He would have been entitled to sue for pain and suffering, medical expenses, lost wages, emotional distress, and more.  Section 8302 ensures that your […]

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Feb 28, 2018 - Personal Injury

Employer Liability for Injuries: A Look at Vicarious Liability

In Pennsylvania, employers may be held liable for the injuries — and subsequent damages and other losses — inflicted by their employees, though only under specific circumstances.  This is a long-established legal principle known as respondeat superior, or more commonly in modern parlance: vicarious liability. Vicarious liability is an extremely pro-plaintiff principle that entails the attachment of liability to an employer, even when the employer did not actually encourage or otherwise play a role in the negligent conduct perpetrated by their employee.  Why?  The purpose of vicarious liability is to force employers (who have the resources to effectuate change) to take a proactive approach to safety.  By shifting the burden of liability to employers, the State is essentially forcing employers to invest in proper training programs for their employees, to hire managers to properly supervise their employees, and to discourage “bad behavior” overall. It’s also worth noting that the injured plaintiff has a higher chance of recovering fully from an employer-defendant.  Employers are more likely to have adequate insurance coverage and/or the financial assets necessary to cover the damages at-issue in the case. Vicarious liability is an excellent tool for injured plaintiffs in Pennsylvania, but it’s not always available.  Further, employers will fight tooth-and-nail to distance themselves from the situation at-hand and avoid the application of vicarious liability.  As such, it’s important that you consult with an experienced personal injury lawyer who can effectively navigate the roadblocks put up by defendants in such lawsuits. Basics of Vicarious Liability in Pennsylvania […]

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Feb 26, 2018 - Personal Injury

Punitive Damages in Pennsylvania Personal Injury Lawsuits

In Pennsylvania, and in fact, throughout the United States, punitive damages awards are frequently misunderstood in the context of personal injury lawsuits, though this general misunderstanding is reasonably justified.  Oftentimes, those unfamiliar with the process of litigation are under the impression that they will secure a financial windfall as a consequence of successful litigation — personal injury lawsuits involving an award of punitive damages can lead to verdicts (or settlements) worth millions of dollars, thus attracting a great deal of media attention.  Thus, the general populace tend to be exposed to news about personal injury lawsuits with substantial punitive damage elements, even if it is quite rare for injured plaintiffs to qualify for punitive damages. Despite the fact that punitive damages are rather uncommon, both in Pennsylvania and elsewhere, they are occasionally awarded when circumstances justify it.  If the particular circumstances of your case point to the possibility of punitive damages, your attorney will want to aggressively advocate for punitive damages to be awarded. But what are punitive damages, exactly? What is the Purpose of Punitive Damages? There are essentially two main categories of damages in civil litigation: compensatory damages and punitive damages.  Compensatory damages are — as the name implies — meant to compensate the injured party for the losses they sustained due to the negligent or otherwise wrongful conduct of the defendant(s).  In a sense, compensatory damages are meant to place the injured party in a position that is close to where they would have been had the […]

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Feb 21, 2018 - Personal Injury

Maximizing a Personal Injury Settlement

Even those who are relatively unfamiliar with the process of civil litigation are likely to have about the concept of “settlement,” though experiences and perceptions can vary quite significantly depending on the context.  For example, some people associate settlements with negative press and an implication of wrongdoing, such as when a prominent celebrity or politician settles a claim with a victim of abuse.  This negative perception is rather displaced from reality, however. In real-world terms, settlement is extremely common.  In fact, legal industry observers estimate that roughly ninety to ninety-five percent of lawsuits are resolved through a negotiated settlement, before trial litigation even begins.  Why are settlements so common in personal injury litigation?  Quite simply, there are significant benefits to a settlement for the parties involved in a dispute, particularly in a dispute that involves a personal injury claim. Settlement is Usually Beneficial Forms of alternative dispute resolution — such as negotiated settlement — are popular because they allow the parties to circumvent the expense and bureaucracy associated with the trial litigation process.  Trial litigation can be expense, emotionally challenging, and costly from a time perspective.  Trial litigation is also risky.  Even if you have a strong case, there is always the risk of “losing” a case.  In Pennsylvania, and elsewhere in the country, there is an adversarial court system where you either win or you lose.  If you lose, there is no damage recovery. Suppose that you are injured in a motor vehicle accident and you have suffered significant […]

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Feb 19, 2018 - Premises Liability

Understanding Slip and Fall Liability

In Pennsylvania, and elsewhere, those who possess or otherwise control a given property can be held liable for their failure to exercise reasonable care in maintaining the premises in a safe condition for those entering upon such premises.  Premises liability governs a category of claims that include a range of accident scenarios, such as slip-and-fall, and attaches liability to those who are negligent in their maintenance of property, thus exposing entrants to a significant and unreasonable risk of injury. Unfortunately, many injured persons are not aware of their right to recover — under Pennsylvania law — with regard to slip-and-fall accidents.  For the sake of clarity, let’s explore the basics of premises liability in Pennsylvania, first. Premises Liability Basics Pennsylvania law imposes substantially different duties on the possessor of land depending on the “type” of visitor that is injured on the premises at-issue.  For example, a trespasser is owed the lowest standard of care under the law, where the possessor of land will only be held liable for injuries if he has engaged in willful or wanton misconduct.  By contrast, a standard business invitee — a customer at a retail store, for example — is owed the highest standard of care under the law.  Given the enormous range of premises liability law, there are unsurprisingly diverse consequences. Generally speaking, however, most injury claimants will fall under the category of licensee or invitee.  Both licensees and invitees have the consent of the possessor of land to enter and remain upon the […]

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Feb 14, 2018 - Personal Injury

Personal Injury Lawsuits: A Look at Comparative Negligence

In Pennsylvania, and elsewhere, prospective injury claimants are often uncertain about their right of recovery under the law and how it is effected by their own behavior at the time of the precipitating incident.  Someone who slips and falls on another’s property, thus suffering an injury that was later worsened by a failure to seek medical attention in a reasonable time-frame after the accident, would not necessarily be entitled to recover full damages, given the circumstances surrounding the injury. There are numerous instances in which the injured plaintiff contributes — in some way — to their own injuries.  Comparatively few cases are such that the plaintiff escapes unscathed from the perspective of fault contribution.  In challenging personal injury scenarios, it is often the case that the plaintiff acts “unreasonably” and “negligently” too. We therefore arrive at a critical question: can you recover for your injuries, even if you are somewhat responsible?  The answer is rather simple, actually, but requires an understanding of the principle of modified comparative negligence. Modified Comparative Negligence in Pennsylvania Pennsylvania lawmakers encoded the principle of modified comparative negligence in section 7102 of the Pennsylvania Consolidated Statutes.  The principle establishes very specific and straightforward rules for a plaintiff’s recovery in the event of contributory fault. Put simply, an injured plaintiff in Pennsylvania will not be barred from suing and recovering damages from the defendant(s), but only if the plaintiff contributed less than fifty percent of the total fault.  In other words, the plaintiff must be “less negligent” […]

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Feb 1, 2018 - Estate Planning

Updated Medicaid Eligibility Amounts for 2018

The Pennsylvania Department of Human Services has revised the dollar amounts it uses to calculate eligibility for Medical Assistance Long-Term Care benefits (MA-LTC benefits). These cost-of-living inflation adjustments to Medicaid dollar amounts occur quarterly, effective January 1, July 1, and October1 of each year. 1. Penalty Divisor. The daily transfer penalty divisor increased from $321.95/day to $330.19/day. This new penalty divisor is to be used when calculating transfer penalties for Medicaid applications filed on or after January 1, 2018. To illustrate the use of the penalty divisor, assume an Applicant for MA-LTC benefits makes a gift (or other transfer for less than fair market value) in the amount of $10,000 within the 60 months look-back period. Further assume that the gift is not exempted from the transfer penalties. Such a gift will result in to 30 days of ineligibility for MA-LTC benefits. ($10,000 divided by $330.19 equals 30.28 days; the partial day of ineligibility is ignored under applicable rules.) 2. Spousal Impoverishment. Spousal impoverishment guidelines have been adjusted as follows: a. The minimum community spouse resource allowance (“CSRA”) for 2018 is $24,720. b. The “standard” maximum CSRA is $123,600. 3. Home Equity Limitations. a. For a married recipient, there is no cap on the dollar amount of home equity. b. For a single applicant, the limit on home equity is now $572,000. 4. Home Maintenance Deduction. The home maintenance deduction for individuals applying for MA-LTC benefits for short-term stays has been increased to $772.10/month, for up to 6 months. 5. […]

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Feb 1, 2018 - News and Events

Drake, Hileman & Davis Attorney Jonathan Russell Provides Insights and Recommendations to New Lawyers

In the January/February 2018 issue of the American Bar Association’s magazine, Student Lawyer, Drake, Hileman & Davis attorney Jonathan Russell, provided insights and recommendations to new lawyers making the transition from law school to legal practice.  Attorney Russell’s perspective was featured in the cover story article entitled,  “Start Now to Become Tomorrow’s Legal Leader”. The ABA is the one of the largest voluntary professional legal organizations with nearly 400,000 members.  The ABA is committed to improving the legal profession and advancing the rule of law throughout the United States and around the world.

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Feb 1, 2018 - Estate Planning

Tax Cuts and Jobs Act Nearly Doubles, to $11,180,000, the Applicable Federal Estate Tax Exclusion Amount and GST Exemption for 2018

The new Tax Cuts and Jobs Act of 2017 (“2017 Tax Cuts Act”) P.L. 115-97, doubled the Estate and Gift tax “Applicable Exclusion Amount,” from $5 million to $10 million, for gifts made, and estates of decedents dying, after December 31, 2017, and before January 1, 2026. (These amounts were previously adjusted for inflation.) By increasing the applicable exclusion amount, the new law automatically increases the Generation Skipping Tax (“GST”) exemption. Code Sec. 2631(c). See my prior article entitled, “Tax Provisions Impacting Estate Planning In the New Tax Act.” However, the 2017 Tax Cuts Act changed the inflation index used after 2017 for the applicable exclusion amount and GST exemption. The IRS recently confirmed that the new law’s doubling of the basic exclusion amount, when adjusted for inflation based on the new index, produces a $11,180,000 Exemption figure for 2018. This is slightly less than double the $5,600,000 figure that the IRS had announced before enactment of the Tax Cuts and Jobs Act. This new figure reflects the application of the new C-CPI-U inflation factor to the 2018 adjustments for the applicable exclusion amount. The bottom line is, clients having aggregate estates valued less than $11,180,000 will not need to worry about the Federal Estate or Gift Tax for the next 10 years (when the current law sunsets). (Don’t forget, life insurance death benefits are included in your taxable estate.) Please call or email us if you have questions about the new Exemption Amount and how it impacts your current […]

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