CNY Injury Law Newsletter

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1 CNY Injury Law Newsletter Auburn Liverpool Syracuse Geneva michaels-smolak.com vol I issue I Summer 2013 Welcome to the inaugural edition of the Michaels & Smolak newsletter! Our goal is to provide you with some fun facts, some news you can use, and some highlights of legal developments in the field of personal injury, medical malpractice and legal malpractice. We would absolutely love your comments or questions about any of the materials in our newsletter, so don t hesitate to call or attorney Mike Bersani at com. Also, please subscribe to Mike s online blog at www. centralnewyorkinjurylawyer.com for an ongoing weekly (or so) update on legal developments, safety tips, and Michaels & Smolak news. Our Team table of CONTENTS MICHAELS & SMOLAK IN THE HEADLINES 2012 Headline Cases TOOTIN OUR OWN HORN DEPARTMENT Michaels & Smolak Again Named in US News Best Lawyers In America News You Can Use Look At Your Homeowners Insurance Policy To Make Sure It Covers Dogs NEW LAWS New Move Over Law Protects Hazard Vehicles New York s Top Court Sides With Victims Of Motor Vehicle Accidents Legal Question of the Day I was hurt at work and am getting comp, but it s not enough. Can I sue for more? lee michaels jan smolak michael bersani David Kalabanka STAFF SPOTLIGHT Office Manager Carol Beach Retires! HAVE A FRIEND SUBSCRIBE TO OUR NEWSLETTER There is no commitment and no obligation. We don t share our subscriber contact information with anyone else and you can unsubscribe at any time. To sign up, visit michaels-smolak.com in the community Michaels & Smolak Helps Save Camp Rotary

2 cny injury law newsletter the Michaels & Smolak pledge we deeply appreciate the trust our clients have placed in us and we will strive to uphold that trust by working hard and fighting for our clients rights. MICHAELS & SMOLAK IN THE HEADLINES 2012 Headline Cases Michaels & Smolak made headline news in 2012 in two cases. First, in Lynch v. Waters, the firm represented the widow and child of a fallen firefighter. Mike Bersani, the firm s lead attorney on the case, settled with Onondaga County and three other defendants at trial for $1.2 million. The case, which had been up on appeal twice, generated a lot of press, not only locally, but nationally, especially in firefighter publications. It is believed to be the only case where a court has ruled that a firefighter, and his or her employer, can be held liable for negligently issuing firefighting instructions or orders that end up killing or injuring a fellow firefighter. But the bigger news item in 2012 was Gabriel v. Johnston s LP Gas, which made front page headlines both in the New York Law Journal and the Syracuse Post Standard. In that case, the issue was whether Mexican and Guatemalan migrant farmworkers, who had been injured in an explosion on a farm near Fulton, would be allowed to give their deposition and trial testimony from their home countries, by video, rather than appear in Court in New York. The U.S. government had denied them visas to return to New York for trial because they had initially entered the U.S. illegally to work here. The trial court had essentially said, tough luck if you can t get back here for trial, your case is dismissed. On appeal, the Fourth Department (appellate court in Rochester) reversed, holding that, under these circumstances, the injured workers should be allowed to give their testimony by videotape from their home countries. page 2

3 Michaels & Smolak TOOTIN OUR OWN HORN DEPARTMENT Michaels & Smolak Again Named in US News Best Lawyers In America News You Can Use Look At Your Homeowners Insurance Policy To Make Sure It Covers Dogs Homeowners Insurance carriers are in the dog house, at least in our book. Here s why: In the past few years, in greater and greater numbers, we at Michaels & Smolak are seeing homeowners insurance carriers, unbeknownst to their insureds, slipping dog exclusions into their insurance policies. They exclude coverage for any injury caused by dogs, including, of course, dog bites. And this is bad news for you. Why? Because if your dog bites someone, or runs out into the street and causes a car accident, and you get sued, you won t have any insurance coverage. Some of the insurance policies we are seeing exclude coverage only for aggressive breeds, such as pit bulls, but others exclude coverage for all dogs. The best homeowners policies don t exclude dogs at all. The dog exclusion is a dog-gone rip off. One-third of all injury claims brought against homeowners are for dog bites. But when insurance carriers exclude coverage for dog bites, they don t offer you a 1/3 discount. In fact, they give you no discount at all. So your insurance carrier is charging you the same amount for 2/3 of the coverage. Check your homeowners insurance policy to make sure it doesn t exclude injuries caused by your dog. If it does, call your insurance agent and see if he can find you a comparable insurance policy that does cover Fido. If he won t or can t, tell him it s a dog-gone shame that you have to bring your business elsewhere! We are going to leave all modesty aside for a moment: Michaels & Smolak has been bestowed once again with a first-tier ranking in U.S. News Best Lawyers in America for personal injury litigation firms in the Syracuse, New York metropolitan area. Inclusion in Best Lawyers is based entirely on peer review (they ask other lawyers and judges about us). Other lawyers are asked this question; If you could not handle a case yourself, to whom would you refer it? Lawyers are asked to give nominees 5-1 numerical grades 5 for a lawyer the voter would certainly refer a case to, 4 for a lawyer the voter would probably refer a case to, etc. Those with only the very highest grades make it to the list of Best Lawyers in America. We are one of only a handful of Central New York personal injury law firms that made the first tier ranking. So if other lawyers including the insurance defense lawyers we take on every day of the week think we are so great, hey, maybe we are! Hats off to us, folks. page 3

4 cny injury law newsletter areas in which We Can Help our attorneys can help with all personal injury & malpractice cases such as: Motor Vehicle Accidents Catastrophic Injuries Construction Accidents Slip/Trip and Falls Wrongful Death Medical and Legal Malpractice Defective Products Almost any Accident or Malpractice Case of Any Kind Legal Question of the Day I was hurt at work and am getting comp, but it s not enough. Can I sue for more? Generally, you can t sue your employer or co-workers, even though they were at fault for causing your accident, as long as you get comp. This is known in colloquial legalese as the workers comp bar. But that doesn t necessarily mean you can t sue someone else. If other non-employer or non-co-employees were at least partially at fault, you might be able to sue them. For example, an outside contractor on the job site might have been partially at fault for causing your accident. The workers comp bar does not bar that claim. Sometimes an employee works for one company ( company A), but is loaned to another company (company B) to work temporarily. For example, a temp employment agency (company A) might send a worker to an outside company (company B) for a day s work. If the worker gets hurt because of company B s negligence, can he sue company B? It depends. The courts consider several factors in deciding this. But generally, if company B controlled your work, that is, supervised you, told you what to do and how to do it, etc., then you are barred from suing both your real employer (company A) and company B. But if your real employer, company A, was supervising your work at company B, and telling you how to do the work there, then you probably can sue company B for its negligence in causing your injury. The only way to know for sure whether your lawsuit is barred by workers compensation is to talk to a qualified New York personal injury lawyer. So call us and find out! page 4

5 Michaels & Smolak STAFF SPOTLIGHT M&S Office Manager Carol Beach Retires! In February 1967, a young lady showed up for her first day of work at the Auburn, NY law offices of attorney George M. Michaels (our predecessor firm). (George is famous in New York you can look him up on wikipedia). Lee Michaels, our senior partner and George s son, was then but a young whipper-snapper fresh out of law school. But the story goes back further; Lee and Carol went to Auburn East high school together. Carol was two years ahead of Lee. Carol tells the story of how, back then, one of her teachers told the girls, treat the under class-men well because remember, you could be working for them one day. Times have sure changed. Today, any teacher who made a statement like that would be accused of rank sexism. But guess what that teacher was right! Carol ended up working for Lee for 43 years. And she worked with the rest of us ever since we joined the firm, too. She was our head secretary and office manager for decades. On her last day of work at the of Michaels & Smolak, we decided to take Carol, and the entire office, out to the Sherwood Inn in Skaneateles, to celebrate her outstanding 45 years of loyal service, and to surprise her with a gift. (Carol roundly rejected our desire to give her a retirement party way too humble for that). But what do you give someone who clocked in 45 years of dedicated work, who hardly ever missed a day, who usually got to work BEFORE starting time, and who was, to boot, fun to work with? A gold watch? That didn t seem a good fit. Well, we remembered that Carol had a great time a few years ago when she went on her first cruise with her husband, Jim. So at the Sherwood, we handed her some tickets. Not just any tickets, but for a cruise-for-two through the breath-taking Alaskan seas. We shot this picture of Carol and Lee at the Sherwood. Carol has kept in touch. She took her Alaskan cruise in September and shared her pictures with us. We wish her a happy retirement. NEW LAWS New Move Over Law Protects Hazard Vehicles Hey motorists, listen up! A new law in New York, which took effect January 1st, 2012, requires you to slow down and move over for hazard vehicles, which includes tow trucks. The law, called the Ambrose-Searles Move-Over Act used to apply applies only to emergency vehicles, such as police cars. But the new, amended, law will cover hazard vehicles, too, including tow trucks. Drivers must reduce speed on all roads when encountering such vehicles, but on parkways, interstates, and other controlled access highways with multiple lanes, drivers are further required to move over from the lane immediately adjacent to the emergency vehicle, unless traffic or other hazards exist to prevent doing so safely. Violators face fines of up to $150 for the first offense, $300 for a second offense and $450 for a third offense. So slow down, and move over! page 5

6 cny injury law newsletter attention attorneys Injury & Malpractice Referrals A lot of lawyers and law firms refer all their injury and malpractice cases to Michaels & Smolak. Why? (1) We are known for getting top dollar (in settlement or verdict) for the referred case (2) We carry all expenses of the case (3) We give personal attention to your clients Consider referring your cases to us! Michaels & Smolak Helps Save Camp Rotary Nothing brings Auburn and Cayuga County, NY, together like an attack from outside forces. Just as the ancient Greek city-states came together to fend off attacks from their ancient common enemy, Persia, all of Auburn and Cayuga County united to fend off an attack by the National Texas-based Boy Scouts of America. And Michaels & Smolak is proud of its role in that battle. Here s what happened, and what we did about it: page 6

7 Michaels & Smolak The Texas-based Boy Scouts of America forced the Auburnbased local Cayuga County Council Boy Scouts to merge with a larger local council, Long House Council, which occupies Onondaga County and other territories to our north. As part of the merger, the Texas-based Scouts were forcing the transfer all the Cayuga County Council s assets to Long House Council, taking them out of local control. One gem-of-an asset was Camp Rotary, a 33-acre camp located on the east side of Owasco Lake and used by local scouts since It was clear, and neither the cash-strapped National Scouts nor the equally economically distressed Long House Council denied it, that once they acquired Camp Rotary, they intended to sell it off to developers for cash. To make matters worse, Camp Rotary sits right next to the Auburn YMCA s Camp Owasco and the local Girl Scout Camp. Those groups were not anxious to have development so close by. So the not-for-profits and good citizens of Cayuga County and Auburn bound their forces to fend off the attack, with the battle cry, Save Camp Rotary! Local leaders came to Michaels & Smolak looking for legal representation for the local notfor-profit which held title to Camp Rotary, the Owasco Camp Association. Michaels & Smolak took on the case, stood up to the big national Scouts in Court, and after a year and a half of tough-fought litigation, helped negotiate a settlement that culminated in Auburn s YMCA acquiring the Camp for a relatively small sum of money - $350,000 (it is easily worth over $1 million). It is now saved forever for local youth use! Michaels & Smolak donated approximately $20,000 worth of free legal services in support of this worthy cause. In gratitude, the Cayuga County Legislature issued a Proclamation wherein special recognition was given to Michaels & Smolak. We at Michaels & Smolak are proud of our commitment to local charities and causes! NEW LAWS New York s Top Court Sides With Victims Of Motor Vehicle Accidents Victims of car accidents won a big victory in New York s top court recently. In the case of Perl v. Meher, the Court ruled that victims of car accidents are not required to obtain from their doctors a comprehensive, quantitative medical assessments of their injuries immediately after the accidents. The Court of Appeals held that a simple visual assessment by a doctor may be enough to prove that an accident caused a serious injury, as long as, later on -- even years later -- a doctor does provide an objective quantitative medical assessment of the injury. The court recognized that when people are first injured, they are not looking for a doctor to prove they have suffered a serious injury. In fact, they are hoping they are not too seriously injured, and to get better soon. As the Court stated, a case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries and we therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite for recovery. This rulng will help us get many of our clients the compensation they deserve, and that s good news! page 7

8 CNY Injury Law Newsletter Auburn Liverpool Syracuse Geneva michaels-smolak.com vol I issue I Summer East Genesee Street, Suite 401 Auburn, New York 13021

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