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Friday, November 22, 2013
As the old adage goes, an ounce of prevention is worth a pound of cure. There is no other place that this rings more true than in the formation of a business relationship. Taking a moment or two to outline the details is an important step and can prevent a long and drawn-out legal battle in the future. While it is nearly impossible to anticipate every potential problem, problems nonetheless should be expected to arise, and problems usually involve having to hire an attorney.   Addressing who should have to pay for attorney fees, and under what circumstances is worthy of consideration when forming a business relationship.   
In Idaho, the general rule is that each party to a lawsuit has to bear their own attorney fees.  Idaho law recognizes two exceptions to the general rule: (1) if a statute involved in the lawsuit provides for attorney fees; or (2) if the parties’ agreement at issue in the lawsuit provides for attorney fees.  Attorney fees by statute are limited to certain circumstances. Attorney fees by a provision in a contract can provide for attorney fees on your terms.   Even if the parties agree to arbitration, without a provision in the parties’ agreement providing for attorney fees in arbitration, not even a successful party to the arbitration will be able to get their attorney fees reimbursed.
While thinking about and planning for destruction at the time that you are trying to create something seems counter intuitive, if you put in a little effort into preventing a problem, you will not have to put in a lot of effort into solving the problem should it arise later. Attorney fees are a problem that can, and should be addressed in every agreement.    
Posted by eswartz at 11/22/2013 5:40:00 PM
Friday, November 8, 2013
Idaho Courts’ approach to determining whether or not a worker is an independent contractor or an employee is much like Juliet pondered:  “What’s in a name?  That by which we call a rose by any other name would smell as sweet.” Simply because an employer designates a worker as an independent contractor, does not make that worker an independent contractor any more than the name of a rose makes it smell sweet.
In fact, the designated name is the least important item a court examines when determining the employment relationship. Courts immediately brush past the designation an employer provides. Instead, courts examine the nature of the relationship between the parties. The principal factor the court examines is the amount of control that an employer exercises over a worker’s performance of job duties. The more control an employer retains, the more likely that a worker is an employee, rather than an independent contractor.
An employer’s control is determined by the level of supervision an employer exercises over the worker. For instance, if the employer controls the manner in which a job is performed, has a requirement for specific hours a person must work or meetings that a person must attend, the employer is retaining a significant amount of control over the work. Conversely, if there is little supervision as to how the job is actually performed, or when, and the only requirement is that the work be completed, there is very little control retained by the employer. The less control placed upon a worker, the more likely the worker is a true independent contractor.
Examination of the employer’s control is reflected in Idaho case law as well.  “If the employer retains the right to control and to direct the activities of the employee in the details of work performed, and to determine the hours to be spent and the times to start and stop the work, the person performing the work will be an employee.” State ex rel. Department of Labor & Indus. Servs. v. Hill, 118 Idaho 278, 283, 796 P.2d 155, 160 (1990). In Hill, the Supreme Court affirmed the lower court’s ruling that simply because the employer called the worker an independent contractor, “we look not to the labels applied by the parties, but rather to the actual indicia of such a relationship.”  Id. 
While there are litanies of factors a court can examine, the most prominent is the level of control. In this instance, it is accurate that names do not matter; courts are only concerned about the actual particulars of the employment relationship. As Juliet pleads, “Romeo, doff thy name ....”  Names do not matter; instead, courts focus on details of the parties’ relationship.
Posted by eswartz at 11/8/2013 9:13:00 PM
Saturday, November 2, 2013

In Idaho, the general rule of law is that a liability insurer owes a duty to defend its insured against claims that create a potential for indemnity.  As such, the insurer must defend a lawsuit that potentially seeks damages within the coverage of the insurance policy held by the insured.  Implicit in this rule is the principle that the duty to defend is broader than the duty to indemnify because the insurer may be obligated to defend its insured in a lawsuit in which no settlement occurs or no damages are ultimately awarded.  The determination whether the insurer owes a duty to defend is usually made by comparing the allegations of the complaint with the terms of the insurance policy.  Facts from outside sources – extrinsic to the complaint – may also give rise to a duty to defend when those facts reveal a possibility that the claim may be covered by the policy.  Further, the duty to defend is a continuing one, arising upon the tender of defense by the insurer and lasting until the underlying lawsuit is concluded, or until the insurer has determined that there is no potential for coverage.  If the insurer determines at the outset of the suit that, based on the facts known to it at that time, there is no potential for coverage, the insurer does not have a continuing duty to investigate the initial claim or monitor the lawsuit.

Either the insured or the insurance company may bring a declaratory judgment action, which is separate and distinct from the underlying lawsuit, for the purposes of determining whether coverage exists under the policy in relation to the underlying suit, and therefore, whether the insurer has a duty to defend and indemnify its insured.  During a declaratory judgment action, the presiding judge is bound by state statutes and common law principles of contract interpretation in determining the applicability of the insurance policy.

 

Since insurance policies are generally considered a type of adhesion contract, where the insured has little to no input as to the terms of the policy, they are normally liberally construed infavor of the insured.  Where a term contained in the policy is not ambiguous, it will be interpreted according to its plain language.  Where ambiguities do exist in a policy, the court will often consider circumstances or evidence outside of the terms and conditions of the insurance policy, such as what type of coverage had been requested by the insured, or what the insured’s understanding of the terms of the policy were based on discussions with an authorized insurance representative.  And, any ambiguity in the language of the insurance contract will be construed against the insurer.

Posted by eswartz at 11/2/2013 4:57:00 PM
Monday, August 26, 2013

The number of employees that an employer has can dictate what employement laws might apply.  As an employer and an employee, know your riights.  Know how many employees work at the company and know what laws apply to the employment workplace. 

 

 

Posted by eswartz at 8/27/2013 3:43:00 AM

Employers, don't wait!  Wage claim demands are serious business.   If you do not pay wages when due, you could be faced with having to pay three-times the ammount due plus your employee's attorney fees and costs.  If you get an employee's wage claim, do not wait.  Hire counsel immediately to assist you with evaluating the claim. 

Employees, if your employer is not paying wages due to you, don't wait.  If your employer is not paying you what they promise - whether the correct wage, salary, or overtime - don't wait in making a wage claim.  Idaho's statute of limitations on a wage claim is incredibly short - you only have six months from the accrual of your claim for wages to make the wage claim.  An employer's promise to pay can extend the statute of limitations.  Best course of action, however, is not to delay in pursuing your wage claim - even if your employer is promising that they will pay.  

 

Posted by eswartz at 8/27/2013 3:32:00 AM
Wednesday, July 31, 2013

As an attorney practicing civil litigation, I have become familiar with the legal system.   Through research, I have become familiar with various areas of law.   Listening to clients is how I learn about a case.  

Posted by eswartz at 7/31/2013 7:02:00 PM
Monday, June 3, 2013

Summary: In Glaccum v. Mizer et al, Blaine County Case No. CV2012-853, the Court granted the Plaintiffs’ Motion for Summary Judgment challenging Defendant’s Affirmative Defense that Idaho Code 6-1012, Idaho Medical Malpractice statute, applied to a Licensed Pharmacist refilling a prescription.  The Court dismissed Defendant’s Affirmative Defense finding that a Licensed Pharmacist is not a “provider of health care” under Idaho Code 6-1012.   

 

 

Posted by eswartz at 6/3/2013 10:54:00 PM
Friday, January 18, 2013

Did you see that?  If so, there is a chance that you can be dragged into someone else’s lawsuit.  Just because you are not a party to a lawsuit, do not assume that participating as a witness is without its risks.    

Before answering any questions, contact your personal attorney or corporate attorney, to inform them of the fact you have been contacted by another attorney.  If you do not have a personal or corporate attorney, you should seek legal counsel and avoid proceeding on your own.  Involving an attorney, even for the most basic request, helps ensure that you understand the full scope of the issues involved.  Having your own counsel is also a good idea because your attorney will be looking after your best interest and help you avoid certain pitfalls of providing testimony.    

The last thing you want to do is get dragged into someone else’s lawsuit.  Going from witness to party is, sometimes, easier than people think.  Giving testimony also potentially implicates your Fifth Amendment Right against self incrimination.   

Depending on the nature of the lawsuit in which you are being asked to give testimony, and your level of involvement, there may be no avoiding being a witness or brought into the lawsuit as a party.  But, consulting with an attorney can help you state just the facts while guarding against sinking your own ship.    

Posted by eswartz at 1/18/2013 5:21:00 PM
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