Types of Negligence
January 4th, 2011 by Rosanne Lim. No Comments »
For a plaintiff to prove that negligence occurs, the following factors must be present:
- The defendant owes a duty of care to the plaintiff (or the general public)
- The defendant failed in his duty
- Due to the defendant’s violation of the duty, another party suffered from injury
- That injury was reasonably foreseeable given the defendant’s action or inaction
There are different types of negligent actions including the following:
Gross Negligence – in these cases, the act or inaction was so reckless that it showed lack of concern for the injuries that may result. There are cases wherein it is necessary to differentiate “gross negligence” from ordinary negligence to overcome legal obstacles. When a person signs a release (for a sports competition), this will only apply only for ordinary negligence but not for “gross negligence.
Children and Negligence – children do not have the same mental capability as adults. A minor’s negligence will be evaluated against a reasonably careful individual who is the same age will d under the same circumstances. Very young children (under the age of 7) are presumed to be incapable of negligence.
Comparative Negligence – this applies when the plaintiff is marginally responsible for his own injuries. For example, a jury may determine that the damages amounts to $100,000 but if the plaintiff is 30% at fault, then the defendant will only be asked to pay $70,000.
Contributory Negligence – although this type of negligence is being abandoned in a number of jurisdictions, it still exists. Where contributory negligence applies, wherein the plaintiff has contributed to his own injury in any way, he is barred from getting damages.
Mixed Contributory and Comparative Negligence – this combination applies where a plaintiff is less than fifty percent at fault for his injuries. A plaintiff who is more than fifty percent at fault may not get damages or may only get a percentage (from economic damages) against defendants.
Vicarious Liability – it occurs when a person or organization is held liable for the actions of another. This usually applies in an employment situation wherein the employer is responsible for the actions of his employees. This is also true in the case of pet owners and parents (who may be held liable for the acts of the children).
More Organizations You Can Approach For Help
December 11th, 2010 by Fairlane Raymundo. No Comments »
Here are more organizations that tort victims, medical practitioners, brokers and others can approach for free advice, training and even help on policy change in relation to their rights on medical and legal assistance.
The American Spinal Injury Association takes care of individuals with spinal cord injury. Their activities include promotion and establishing of health care standards, education of healthcare professionals, patients and their families as well as the public on all aspects of spinal cord injury and its consequences, to research how to prevent spinal cord injury, improve care, reduce consequent disability, and find a cure for both acute and chronic SCI, and facilitation of communication between members and other physicians.
The Library of Congress is the most comprehensive source of US law, cases, books, maps and manuscripts. It is the nation’s oldest federal cultural institution and serves as the research arm of Congress. They make these resources available and useful to the Congress and the American people and sustain and preserve a universal collection of knowledge and creativity for future generations.
The American Association for Justice (AAJ) promotes a fair and effective justice system by supporting the work of attorneys in their efforts to ensure that any person who is injured by the misconduct or negligence of others can obtain justice in America’s courtrooms, even when taking on the most powerful interests. AAJ is the world’s largest trial bar. With more than 56,000 members worldwide, and a network of U.S. and Canadian affiliates involved in diverse areas of trial advocacy, AAJ provides lawyers with the information and professional assistance needed to serve clients successfully and protect the democratic values inherent in the civil justice system.
The Life Expectancy is a research group that specializes in life expectancy calculations based on standard actuarial and biostatistical procedures. They apply these scientific methods to data on children born with cerebral palsy (CP), persons in the vegetative state (VS), and to those who have suffered spinal cord (SCI) or traumatic brain (TBI) injuries. They have published extensively on life expectancy, and consulted on life expectancy in Canada, England, Australia and the United States.
The Toxic Mold Website is a comprehensive guide to many aspects of mold and the potentially fatal dangers that it poses to infants and individuals with weak immune systems. In addition, they provide important legal rights and information for those who have been adversely affected by Toxic Mold in their home, workplace, and elsewhere. Their site also provides toxic mold litigation information for those who have been adversely affected by symptoms of Toxic Mold and exposure in their home, workplace, and elsewhere.
What is Rated Age?
November 23rd, 2010 by Fairlane Raymundo. No Comments »
The estimated number of years a structured settlement owner is expected to live significantly affects the cost of a structured settlement since the regular pay-out is computed through the supposed lifetime of the recipient. Even if the payment is a life contingent deferred lump sum, rated age will still affect the cost.
Rated age takes into consideration the health of the recipient. If the recipient has a certain medical condition that is determined to probably result to a shorter lifetime, the insurance company may offer lower annuity premium cost. The annuity is quoted with the assumption that the rated age is the recipient’s age. The annuity issuing life insurance company will take the risk that the annuitant may live longer than expected but they will also reap the benefits if the recipient dies sooner.
This role that insurance companies take benefits the recipient more than anyone else since a guarantee is given that no matter what happens, his or her needs will be provided. Since the insurance companies have, maybe, thousands of people to spread the risk over, they will be able to afford it. Many recommend that a recipient use a structured annuity with a deferred start date as annuity back stop so that assets may be kept safe. This is sometimes referred to as enhanced annuity or underwritten annuity.
As stated, there are different factors that could affect the computation of rated age for the better or for the worse. Among these are paralysis caused by brain damage or head injuries, life threatening diseases such as cancer, personal or family history of heart diseases, damages to internal organs, worsening conditions such as diabetes and others of the same nature. Even if these conditions have nothing to do with the injury by which the structured settlements is being claimed for, these conditions will still affect the computation of the rated age.
To properly and accurately compute the rated age, complete and most recent medical records must be at hand. Withholding any medical information is illegal.
However, different insurance companies may have varying rated age. This is not a strange occurrence. We make it a point to ask for computations from different insurance companies to ensure that we are getting the computation most beneficial to the recipient.
Lawyers, sometimes, attempt to compute the rated age themselves. There are also cases when they decided whether or not one is needed. This is not advisable. It is best to get the point of view of an insurance agency.
What is Settlement Preservation Trust?
November 20th, 2010 by Fairlane Raymundo. No Comments »
A Settlement Preservation Trust (SPT) or Settlement Conservation Trust is a fixed and irrevocable trust designed to protect your settlement proceeds from dissipation while allowing you to receive money in the amounts and at the times you need them most. It does not replace the annuity funded settlement plan but supplements it for a more flexible but controlled liquidity. Although it is designed to be unchangeable to secure your future, it may still be designed to adapt to valid changes in your future financial needs.
An SPT will protect the owner from their own weakness, unfortunate incidents that push them to spend more, and from others looking to exploit their money. The trust is irrevocable and usually involves a third party to serve as a professional trustee that will be responsible for managing the lump sum portion of the settlement. Needless to say, the professional trustee must be someone who is sure to look after the welfare of the structured settlement owner.
In case the owner of a structured settlement wants to sell their structured settlement for reasons totally unnecessary, the SPT will restrict the sale of the structure settlement income stream by its terms. Since there is a professional trustee, it will make such a factoring transaction both unnecessary and unlikely.
It is possible for the entire settlement to be placed in a Settlement Preservation Trust but it may be better for the owner to have control over a certain percentage of the money and just use SPT as a last line of defence.
This best serves structured settlements recipients whose future is uncertain or unpredictable. Yes, it is also a good idea to put a portion of minor’s structured settlement be put in a Settlement Preservation Trust. We discussed yesterday how funds of minors may dissipate even when the parents don’t intend it to.
Additional Benefits of SPT:
- It earns interest giving the owner additional income
- Money is more protected because it cannot be sold to settlement discounters
- SPT holders remain eligible for Medicaid and Supplemental Security Income (SSI)
- Money may be released when the owner experiences medical emergency or loses a steady source of income
- The annual fee is at least 50% less than a traditional trust
- The defendant approval is not needed to set up an SPT
Selling Part Of Your Structured Settlement
November 11th, 2010 by Fairlane Raymundo. No Comments »
The security of getting regular money from your structured settlement provides a high level of security for you and your dependents. However, urgent needs may arise such as hospitalization and money for education.
One option you could take is selling only part of your structured settlement. The law allows you to sell as little as you want or need just as so you could provide for what you need now and still have some money left in the future for you or your dependents. There are companies that will customize transactions to fit your need. In many cases these companies can help you sell your entire structured settlement, a portion of it or split monthly payments and lump sum payment.
How much will it cost you to sell part of your structured settlements?
Remember that a legitimate company will not charge you anything unless the transaction is fulfilled. You should never be required to pay anything upfront, not even a refundable downpayment. Some companies may collect reimbursements for their upfront expenses but this should only be charged to you once your structured settlement have already been sold. Just be careful to note what are these costs. Expenses like court costs, legal fees or broker commissions are acceptable.
How long will it take you to get your money?
When it comes to selling part of your structured settlements, never rush it. Some companies offer to give you money in a matter of days but you should be careful with this and also demand full disclosure of what are the consequences for companies will to advance a portion of what you will get. Usually, selling part of your structured settlement requires the same amount of time as you will selling your structured settlements in full. It usually takes about three weeks before you get any money. Yes, it’s not quite as fast as you may have initially hope but remember that this timeline takes into consideration the court hearings. Therefore, necessary to ensure that your interest is protected.
What are the laws you should look into related to selling part of your structured settlements?
The Periodic Payment Settlement Act of 1982 (Public Law 97-473) was put in place specifically to look after the interest of the owner of the structured settlements and dependents. It allows and even encourages the selling of structured settlements physical injury cases or hospitalization by making it tax-free.
Selling Structured Settlements: Why You Should Think Twice About Doing It
November 10th, 2010 by Fairlane Raymundo. 1 Comment »
A promise of being able to sell your structured settlements for a lump sum is very common and most companies buying structured settlements promise to give the highest value “now”. As attractive as it may sound, these promises will almost always go unfulfilled because not only does the law require that the courts approve any structured settlement selling, it also looks after the welfare of the dependents.
In The End, You Will Get Less
Sellers will lose anywhere between 15 percent to 25 percent of the total value of their structured settlement. This is not to say that all companies who are in the business of buying structured settlements only aim to take advantage of the sellers. There is only the simple reality that a dollar today will not have the same value as a dollar ten years from now.
If you can buy a cup of coffee from Starbucks for $3 now, you will most likely have to pay $6 for the same coffee several years from now. Companies buying structured settlement will have to risk the devaluation and also factor in the revenue they hope to make.
How About Your Dependents?
Structured settlements secure you. No matter what happens, the law will make sure that you will get what is your due monthly. It’s like having a job and getting paid for it only you don’t have to work everyday for this one. Structured settlements are free of market volatility. As evidenced by the current economic status, almost anything can disappear in one instant but structured settlement is one of the few things that the law protects well.
Cashing out would be like hitting the jackpot because you get one big payment. The court will make sure that your reason is valid for cashing out but at the end of the day, you still have the money and you can still find ways to use it any which way you may wish.
The one that suffers is your dependent(s). With structured settlements, you know you have something monthly for your dependents and you. If you cash out, you can lose all the money due to mismanagement. It is called “dissipating” funds.
Bottomline
This is not to say that you should never sell your structured settlement, you just have to make sure that whatever your reason for selling structured settlements is worth losing 25% of the total value of your money and worth risking the future of your dependents.
How The Law Protects Sellers of Structured Settlement Payments
November 8th, 2010 by Fairlane Raymundo. 1 Comment »
In 2002, Congress enacted IRC 5891 enabling recipients of settlement payments to sell their rights tax free but only after it is approved by the state court[1]. Although the prospect of getting rid of taxes seems attractive, many remain sceptical because a structured settlement payment maybe considered a personal property. What you do with your property should be under your discretion.
The Intention of The Law
The court is supposed to determine whether the sale and its terms are in the best interest of the person who wants to sell. This consideration is extended to the seller’s dependents. If keeping the settlement payment will secure the future of a minor, the court will most likely disapprove the sale.
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The History of Structured Settlement Factoring Transactions
August 23rd, 2010 by Darryl Woodson. 2 Comments »
Structured settlements for personal injury cases became popular in the 1980’s, after the U.S. Tax code was modified to provide favorable tax treatment to insurance companies offering periodic payments rather than a lump sum payment. The tax modification also benefited people receiving structured settlements in 2 ways: 1) It provided a guaranteed source of periodic income and 2) provided that the interest earned on a structured settlement was tax free. If an individual took a lump sum on a settlement, taxes are incurred on interest earned.
In a structured settlement, the recipient receives periodic payments over a number of years, often 10 years or more. To fund these payments, the insurer purchases an annuity at a highly discounted rate. This is because the annuity will earn interest over the repayment period. Therefore, the insurer ended up paying less for the settlement, received tax advantages, and the recipient wasn’t taxed on the payments made.
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