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Saturday, January 18, 2014

 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 1/18/2014 5:27:00 PM
Friday, January 10, 2014
Tough times are sometimes made worse by the loss of your job or your partner’s job. One public benefit available to many folks who have lost their job is unemployment compensation. It is the public policy of the state of Idaho that: 
 
Economic insecurity due to unemployment is a serious threat to the well-being of our people. Unemployment is a subject of national and state concern. [Idaho Code Title 72, Chapter 13] addresses this problem by encouraging employers to offer stable employment and by systematically accumulating funds during periods of employment to pay benefits for periods of unemployment. The legislature declares that the general welfare of our citizens requires the enactment of this measure and sets aside unemployment reserves to be used for workers who are unemployed through no fault of their own. I.C. § 1302.
 
In order to receive unemployment compensation you must satisfy certain qualifications. Three of the most prominent qualifications are that: 1) your job loss cannot be due to quitting or leaving voluntarily; 2) being fired cannot be a result of your own misconduct; and 3) you must actively look for a new job following the loss of your job. I.C. §§ 72-1366(5) and (6). Several other criteria must also be met. Contact the Idaho Department of Labor for help filing a claim for unemployment benefits:  www.labor.idaho.gov.
 
If your claim for unemployment benefits is denied, you have the right to appeal that decision. You must file an application for appeal within fourteen days after you receive the denial of benefits. I.C. § 72-1368(3)(c). After filing for the appeal, you will be afforded a reasonable opportunity to a fair hearing. I.C. § 72-1368(6). Both you and your former employer have the opportunity to submit evidence and testimony to the appeals examiner at the hearing. I.C. § 72-1368(6). If you disagree with the decision of the appeals examiner, you would have the opportunity to request a rehearing. But, you must file that request within ten days from receiving the appeals examiner’s decision. I.C. § 72-1368(6). 
 
As an individual claiming unemployment benefits, you have the right to be represented by an attorney, if you so choose. I.C. § 72-1375. However, that attorney would have to be hired by you personally on terms agreed to between you and your legal counsel. The deadlines for filing for an appeal or rehearing are short. If you need legal assistance do not delay in hiring an attorney. 
Posted by eswartz at 1/10/2014 10:30:00 PM
Friday, January 3, 2014
 
In Idaho, two or more people can create legal duties toward one another through their joint actions to make money. A “joint venture” is created when two or more people associate for the purpose of carrying out a business enterprise with the objective of realizing a profit. Costa v. Borges, 145 Idaho 353, 356, 179 P.3d 316, 319 (2008) (quotation omitted). No formal business document has to be created in order for the “joint venturers” to create a fiduciary relationship. The joint venturers do not have to register with the Secretary of State in order to have liability to the other. “[A] joint venture is not an entity separate and apart from the parties composing it.” Costa, 145 Idaho at 357, 179 P.3d at 320 (citation omitted). Through two people’s agreements and course of conduct they can (intentionally or unintentionally) create a business enterprise known as a joint venture, which obligates each with duties that cannot be disregarded or unilaterally altered. 
 
Joint venturers are in a fiduciary relationship. A fiduciary relationship is one where an individual places complete confidence, trust, and reliance in another person who has the fiduciary duty to act for that individual’s benefit. In a joint venture, each venturer owes a fiduciary duty to every other venturer. 
 
As mutual fiduciaries, any action taken by one joint venturer must be for the benefit of the other, and for the benefit of the business. Therefore, a venturer cannot unilaterally change or terminate an agreement between the venuterers. One venturer cannot withhold profits from the other without a mutual agreement. One venturer cannot claim for his own property that was purchased for the business. “Property is presumed to be [joint venture] property if it was purchased with [business] assets.” Costa, 145 Idaho at 358, 179 P.3d at 321. Each joint venturer has legal rights that may be enforced against their fellow venuterers or the joint venture itself. Such claims include, but are not limited to: claims of accounting, breach of contract, breach of fiduciary duties, and breach of the covenant of good faith and fair dealing, etc.
 
A joint venture cannot continue if even one venturer leaves. “[E]ven if the joint venture had three members it could not continue doing business after the withdrawal of one member. Because ‘a joint venture is not an entity separate and apart from the parties composing it,’ a joint venture cannot continue in business as a separate legal entity after one joint venturer withdraws,” dissociates, or where attempts are made to force a member out of the venture. Costa, 145 Idaho at 357-58, 179 P.3d at 320-21 (internal citation omitted). This means that without all of the members, a joint venture cannot legally continue doing business for a profit. 
 
If you have a great idea to make money and want to partner with someone, give consideration to defining what your business is. Establish the roles of each member. Determine who will get paid what and how. And, agree on what will happen to the business and its members if all does not go as planned.  Best approach is to hire an attorney to help in reducing your agreement to writing.
 
Posted by eswartz at 1/3/2014 11:40:00 PM
Saturday, December 21, 2013
In the chaos following an accident, preservation of evidence is one of the last things that you will probably think about. But, if there is a lawsuit, preservation of what happened is the best way to reconstruct and tell an accurate story. Pictures, videos, and journals at the time of an accident or very soon following are the best way of preserving the story. As time goes by, memories fade or become inaccurate through countless retellings. If too much of the story is forgotten, there is too much guess work for the responsible party to be held accountable. Accurately preserving the story can create a powerful case. 
 
In the recent Idaho Supreme Court case, Liberty Northwest Mutual Insurance Co. et al. v. Spudnik Equipment Co., LLC, the Court affirmed a grant of summary judgment for Spudnik by the trial court in a claim for product liability against one of the manufacturers. In Liberty Mutual, a worker was injured by a series of potato conveyor belts, but the insurance company did not accurately capture which conveyor or the condition of the conveyor. In reaching its conclusion, the Court determined that Liberty was unable to show which of the potato conveyors actually caused the injury that gave rise to the lawsuit. Liberty was also unable to show the configuration of the particular conveyors on that day that caused injury. 
 
Liberty only recorded the serial number of one of the seven potato conveyors on site and failed to accurately document which conveyor actually caused the injury. Specifically, there was no evidence to show whether the conveyor that caused the injury was new, used, modified by a previous owner or current owners. Therefore, the court concluded, there was no way to show that there was a design problem with Spudnik's potato conveyor.   
 
With a complex accident, as demonstrated in Liberty Mutual or even a basic fender bender, an accurate preservation and documentation of what actually caused the injury is important. Had photos been taken of the actual configuration of conveyors that caused injury, the proper question could have been possible presented to the jury: Did the design of this particular conveyor injure the plaintiff. Instead, Liberty Mutual tried to present a vague story: one of these conveyors injured the plaintiff and one of them was manufactured by Spudnik. Preservation of a story can remove the speculation when trying to later apportion fault. It can clearly show a jury what caused the injury and who was responsible for that injury. 
Posted by eswartz at 12/21/2013 7:47:00 PM
A Conditional Use Permit (“CUP”) issued by a government agency is a property right. Any decision made by a local land use board that affects property, or any individual having an interest in that property, must be made in accordance with due process constraints. Meaning, that in order for a CUP to be amended or terminated, the agency must give the holder notice and a right to respond. If notice and a right to respond are not granted before changes to the CUP are made, a violation of the holder’s civil rights may have occurred. 
 
The Constitutions of both the United States and the State of Idaho prohibit deprivation of “life, liberty, or property, without due process of law.” U.S. Const. amends. 5 and 14; Idaho Const. art. I, § 13. Once granted, “[a] permit is a valuable property right and can only be revoked as provided by statute.” Allied Van Lines, Inc., 79 Idaho at 225, 312 P.2d at 1053 (1957). “[C]ounties have the authority to grant new conditional use permits which modify existing permits.” Chambers v. Kootenai County Board of Comm’rs, 125 Idaho 115, 117, 867 P.2d 989, 991 (1994). However, the basic tenets of due process are applicable to the modification of an existing CUP. Chambers, 125 Idaho at 118, 867 P.2d at 992. And, before a CUP may be revoked, “[t]here must be a definite charge that the permit holder has violated or refused to observe some order or regulation of the Commission or some applicable state law.” Allied Van Lines, Inc., 79 Idaho at 225, 312 P.2d 1053. After the permitee is provided notice of violation, all remaining due process requirements must also be afforded. Allied Van Lines, Inc., 79 Idaho at 225, 312 P.2d 1053; Angstman, 128 Idaho at 578, 917 P.2d at 412.
 
In Idaho, “a decision by a zoning board applying general rules or specific policies to specific individuals, interest or situations, are quasi-judicial in nature and subject to due process constraints.” Chambers v. Kootenai County Board of Comm’rs, 125 Idaho 115, 118, 867 P.2d 989, 992 (1994). As such, due process safeguards apply to proceedings conducted by local zoning boards regarding whether to grant a CUP, or to review and grant a new CUP that modifies an existing permit. Chambers, 125 Idaho at117, 867 P.2d at 991; Angstman v. City of Boise, 128 Idaho 575, 578, 917 P.2d 409, 412 (Idaho Ct. App. 1996). At a minimum, due process requires: a hearing and notice of each proceeding; an opportunity to be present and rebut evidence; a transcribable verbatim record of the proceedings; specific, written findings of fact and conclusions upon which a decision is based; and right to appeal. I.C. §§ 67-6512, 67-6519 and 67-6535(4); Allied Van Lines, Inc. v. Idaho Pub. Utilities Comm’n, 79 Idaho 220, 225, 312 P.2d 1050, 1053 (1957); Angstman, 128 Idaho at 578, 917 P.2d at 412. To ensure due process constraints are respected, a municipality will be liable for “‘systemic’ injuries that result not so much from the conduct of any single individual, but from the interactive behavior of several government officials, each of whom may be acting in good faith.” Chalmers v. City of Los Angeles, 762 F.2d 753, 757 (9th Cir. 1985) quoting Owen v. City of Independence, 445 U.S. 622, 652 (1980).
Posted by eswartz at 12/21/2013 7:43:00 PM
Thursday, December 5, 2013
Attorney-client communications are protected from disclosure. The client is in control of the privilege. Being in control, the client can maintain or waive the attorney-client privilege. “An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.” I.C. § 9-203. The word “client” includes a person, a corporation, or an association. I.C. § 9-203. The attorney-client privilege exists as an exception to the rule that all relevant evidence must be disclosed by all parties involved in a lawsuit.
 
There exists a “fundamental principle that the public has the right to every man’s evidence … .” Garner v. Wolfinbarger, 430 F.2d 1093, 1100 (5th Cir. 1970) (citing 8 Wigmore, Evidence, § 2192 at 70.) Exceptions from the general duty to give testim
Posted by eswartz at 12/5/2013 11:36:00 PM
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
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