Saturday, February 21, 2015

Pursuing a Homeowners Insurance Claim

There are insurance policies for almost everything. Californians know that celebrities hold insurance policies to their own body parts even. Automobile insurance is the most familiar, but there is also homeowners insurance, which is also well known. Home-buyers are sometimes required to purchase homeowners insurance before they can move in. 

Homeowners insurance covers a wide variety of different events. Fires, floods, theft, and dog bites are just a few. Both liability (coverage for negligence of the homeowner) and losses (damages that homeowners incur) are covered. There are exclusions and exceptions. Delays, denials, and confusion can be anticipated.

Every policy is different; attorneys can assist in pursuing a first party claim, particularly if the insurance company has issued a denial. A first party claim is when a policyholder pursues a claim pursuant to the policy purchased. For example, a first party claim could be made when a home is burglarized, and there is a provision that covers items stolen.

Since insurance law is based on case law, statutes, and regulations, there are a myriad of ways a policy can be interpreted. It is important, however, to know some basic principles. Here is a non-exhaustive short list:

1) Once a claim is reported, the insurance carrier must provide basic information to the policyholder -- like limits, benefits, coverages, exclusions, and other provisions in the specific policy in place.

2) An insurer must explain why a claim has been denied, and provide a basis for that decision. For example, if a claim was denied because the insurer did not have an opportunity to inspect the premises, it would have to show that a request was made and the request was denied.

3) Before an insurance carrier can ask for a "release," it must explain the legal consequences of having the claimant execute the release, i.e. forever barring the claimant from pursuing the claim further in court, or in arbitration.

4) The insurer must respond within 15 days if a claimant asks for information related to his or her claim. An insurer cannot ignore its own insured.

5) All insurance companies must investigate a claim with diligence, thoroughness, and in good faith. The insurer cannot delay a claim when there is sufficient, reasonable information to conclude the claim.

Pursuing a homeowners insurance claim can be daunting. It is important to know your rights and to be aggressive. It is extremely wise to contact an experienced attorney.

Sunday, February 8, 2015

Fighting a Drunk in Public Charge

Hollywood and other Los Angeles cities are home to numerous dance clubs and bars. With drinking establishments, there is always the risk of becoming intoxicated, and making bad decisions. Some choices could lead to legal trouble.

Most people are aware that it is unlawful, dangerous, and unwise to drive after a night out drinking. Some are unaware that it is a crime to be "drunk in public." Similar to a driving under the influence allegation, a drunk in public criminal charge could lead to a criminal record, jail time, and adverse employment consequences.

California Penal Code section 647 prohibits disorderly conduct. One aspect of disorderly conduct is being "drunk in public." Subsection (f) of Pen. Code section 647, prohibits being intoxicated in public to such an extent that you cannot care for the safety of yourself or others, or so drunk that you obstruct a street, sidewalk, or public way. Let's break down the elements:

(1) Intoxicated in a public place; and
(2) Cannot care for the safety of oneself or others, OR obstructing a street, sidewalk, or public way.

An arrest can occur if a drunk person is exhibiting behavior sufficient to meet element 2. One example: Danny the Drunk leaves the bar at 2:00 am, after having consumed ten shots of tequila. Danny the Drunk drank too much, and starts to have trouble walking. He can't go further than five feet, before he falls onto the street. Danny the Drunk is not hurt, but he blocks a group of nuns from walking by. Policeman Peter sees the whole thing and arrests Danny the Drunk for being "drunk in public."

Now, like every other criminal charge, there are ways to challenge a drunk in public allegation. A defendant could challenge the probable cause of the arrest. Like in my blog post about 1538 motions, a case can be dismissed if the arresting officer arrested the defendant without sufficient probable cause. Danny may be not be drunk at all; he could suffer from a medical condition that caused him to fall onto the street.

The prosecutor also has to prove both elements beyond a reasonable doubt. A defendant could challenge the "public" aspect of the crime. If a person was arrested while in a hotel, or store, both private businesses, he or she could argue that he or she was not in a public place.

Another way to challenge a drunk in public charge is if the defendant ingested an intoxicating drug involuntarily. For example, say Alan wants to play a prank on his friend Stu. Alan buys Stu a drink, but drops a Rufilin into the drink. Unbeknownst to Stu, while taking a drink, he is also taking an intoxicating drug. If Stu later cannot care for himself, in a public place, and was arrested, he would be able to successfully beat the "drunk in public" charge.

A lot of cases involve a person who was drunk, but not so drunk that he or she could not care for himself or herself. If you or someone you know is charged with a drunk in public criminal charge, it is wise to retain a criminal defense attorney. The potential penalties are too great.

Thursday, January 22, 2015

Premises Liability Cases

Motor vehicle accidents make up a large number of cases on the personal injury docket in Los Angeles. However, there are other common ways that plaintiffs can be injured. Unfortunately, people are sometimes hurt when they are a guest, or customer, on someone else's property.

Owners of property owe a duty to those individuals who enter onto their property. Owners must exercise ordinary care in the use, maintenance, and management of their property to avoid exposing people to unreasonable risks of harm. Unreasonable risks of harm could include: spills, broken stairs, ditches, banana peels, etc. These type of risks can occur naturally or artificially, meaning that it can be caused by untrimmed trees, or an employee neglecting his duties to clean. Either way owners can be held responsible for injuries.

If an owner does not exercise ordinary care, he or she may be liable if the harm caused by the lack of ordinary care is "foreseeable." For example, if an owner of a business does not repair a large hole located on the store's floor, and a customer falls in the hole and breaks his leg, the owner of the business would be held liable. It is "foreseeable" that a customer could fall into a large hole because it was not repaired. An example when negligence may not be found is when an extraordinary event caused the injury.

In the hypothetical above, it does not matter whether the owner was "actually" aware of the large hole. Owners can be held liable if they had "constructive knowledge." Constructive knowledge means that the owner should have been aware of the large hole because a reasonable prudent owner would have checked for large holes.

Although it is counter-intuitive, owners can be held liable for injuries to trespassers. Owners can also be held liable for injuries to guests even if the injuries were caused by a criminal. The plaintiff  in such a case would have to show that the risk of criminal harm was foreseeable, and that the owner failed to take steps to prevent the foreseeable risk of criminal harm. One example: a large sports team holds a game. During the game, two drunk rivals threaten one another. "I will stab you when the game is over," one of them says. Two employees of the sports team overhear the exchange and witness the banter. After the game, the shouter stabs the rival, because nothing was done by the sports team employees.

Injuries incurred on a property can cost thousands of dollars in medical bills, particularly if there are broken bones involved. It is wise to contact a personal injury attorney if you, or someone you know, has been injured as a result of the negligence of a landowner. Our office welcomes your calls and inquiries.

Sunday, January 11, 2015

Seeking Post-Conviction Relief

A mother leaves her seat in the courtroom and approaches the podium. The judge sits back and waits for her statement. As she is about to begin, tears drop from her eyes. “My son is innocent,” she says. “Please show him mercy.”

When a defendant is convicted and then sentenced, after a sentencing hearing, where family members may give statements, it is not the end of the case. Our judicial system provides a right to an appeal. The statutory right to an appeal also includes a right to appointed counsel, if the defendant cannot afford to retain one.

An appeal is limited to the “record.” The record is everything that happened before and after the trial – preliminary, trial, and sentencing hearings. Everything that is said by the prosecution, defense attorney, defendant, and witnesses are recorded. Materials submitted for evidence is also preserved for the record. Indeed, an individual unrelated to the case should be able to see “everything” that happened with a particular criminal case after it has concluded.

A defendant is referred to as the “appellant,” when he or she appeals. The first document submitted is the appellant’s opening brief. The opening brief is the opportunity for the appellant to make his or her arguments about why the conviction should be overturned.

Since arguments are limited to the record, the appellant cannot submit additional evidence nor have new witnesses testify. Put simply, the appellant can only raise legal issues related to the proceedings. Typically, appellants will argue that certain evidence should have been excluded during the trial. Or appellants may argue that there was a constitutional violation committed during the criminal proceedings – the trial judge made an erroneous ruling.

The opening brief will contain case law, statute, and argument. After it has been submitted, the state will have an opportunity to submit an opposition brief. The opposition brief will contain counter arguments about why the trial was fair, and why the conviction should stand. The appellant will get the last word, however. The appellant may file a reply brief.

If the appeal is denied, the appellant may petition for the California Supreme Court to review the court of appeal decision. Most often, the California Supreme Court will deny review unless the legal issues involve split decisions between the appellate courts, or the legal issue is novel and has not been heard before (which is rare).

An appellant, and his family, need not despair should the appellant lose his or her appeal. There exists post-conviction relief outside of an appeal. For centuries, a petition for writ of habeas corpus has existed. Writ of habeas corpus translates roughly to “why are you holding the body?”

A petition for writ of habeas corpus is a petition that allows a defendant to challenge his or her incarceration. Since it is not a direct appeal, new evidence is allowed. More often than not, new evidence will be submitted at the habeas level, like: DNA evidence, new witness statements or recants, and other exculpatory information. Habeas cases have been covered by the media. When an individual is exonerated because of DNA testing, for example, the proceedings are usually habeas related. A petition gives a chance to the defendant to right any wrongs that may have been done.

The same mother who cried now sits down in a more comfortable setting. Although her son is confined in a prison hundreds of miles away, she has some hope, even if small. An attorney approaches her and extends his hand. “How can we help you today?”

Our office welcomes your inquiries about post-conviction relief. Please remember that this blog contains no guarantees, assurances, or legal advice. If you have any questions, it is best to contact an attorney by phone. After a conviction , the burden shifts to the convicted.