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Digital Assets: Valuable Dead or Alive

Wrongful Death / By

Like many soon-to-be or just-turned “40-somethings”, my wife is a child of the ’80s. With that comes a love for all things Bon Jovi. I, myself, was more of a Sugar Hill Gang, Run DMC, Beastie Boys kind of kid. Yet I can’t deny catching myself belting a karaoke version of “Wanted: Dead or Alive” whenever it begins to play at a Royals game (or Chiefs game, or the mall, or the grocery store, or the drive-thru……. Well, you get the picture). So, in homage to my wife and all those like her, here are a few thoughts to consider about “Digital Assets: Valuable Dead or Alive.” This post was inspired by an excellent article I read in the May-June 2015 edition of the Journal of the Missouri Bar, entitled “Counseling Clients for #DigitalDeath” by Jennifer A. Davis. In her article, Jennifer discussed “digital assets” in the context of ever-expanding forms of electronic media, and defined digital assets to include e-mail accounts, social networking accounts, photo and video sharing accounts, online sales accounts, websites, blogs, online financial/banking/investment accounts, credit cards, auto bill-pay agreements, and much more. Her article resonated with me when I started thinking about all the clients we represent in wrongful death claims after the passing of a loved one caused by someone else’s negligence or other wrongful conduct. Families dealing with the recent wrongful death of a spouse or child face many difficulties before even considering how to deal with digital assets, which makes it all the more important for each of us to intentionally take the time to organize our digital assets, including access to those assets (URL, username, password, etc.), in a way that would allow a trusted confidant to access and manage those digital assets if we were to become suddenly unavailable. Here are three of Jennifer’s thoughts that I intend to start sharing with my own family and friends, and every client whom we represent in a claim for the wrongful death of their loved one: 1. Digital assets have sentimental value. Today, photos, videos, letters (e-mails) and even recipes are stored online — replacing the albums, journals, and recipe boxes of the past. Blogs, websites, and social network pages may likely have very personal value to family members. If family members are unable to access these sentimental items, a deceased’s family history, and possibly heirlooms traditionally passed down from generation to generation, could be lost. 2. Digital assets may have financial value. Recent studies have shown that most people value their digital assets at approximately $55,000. There may be intellectual property rights of value. The domain name itself may be valuable, and may be an asset which could be sold for a windfall. Likewise, blogs (although probably not this one) have been sold for significant value. Additionally, a Web page or social media account may produce a revenue stream. There may also be value in items not traditionally thought of as valuable, such as a virtual sword for an online game sold for $16,000, or the parcels of virtual real estate sold in 2010 for $635,000. 3. Digital assets may be valued by measuring the money saved by accessing and controlling financial accounts online. Many people now receive and pay bills electronically, with no written record in existence of the location of the account, the bills due, or how to access either one. The failure to pay these bills online, or the account fees incurred from failing to manage the financial account, can all lead to serious consequences. In addition to thinking through the impact digital assets have on people dealing with the wrongful death of a loved one, I also found my thoughts drifting to the larger ways digital assets impact and contribute to, and sometimes dictate and control, all our daily lives. I also see the impact digital assets, primarily social networking, have in the personal injury and business litigation cases we handle. Right or wrong, the first thing I do at the beginning of any new case is google both my client and the opposing party. I am continuously amazed at what I find, from people claiming severe shoulder injuries posting pictures of pitching at softball games, to businessmen/companies pleading poverty while writing blogs about the new deal they just closed that will secure their company’s financial stability for the next decade. I also see the impact of digital assets in my own personal life. My pastor recently cited statistics showing that, not only in-spite-of but often because-of the explosion of electronic media and social networking, we are living in one of the most isolated and individualistic societies in history. People are more and more eschewing personal human interaction for the “convenience” of clicking a button or tapping a keyboard. Instead of shopping at stores and interacting with the cashier, we add items to our Amazon Prime “shopping bag” and then wait at home for them to magically appear on our doorstep in 3-5 business days. Instead of going to the bank to make a deposit or withdrawal and saying hello to one of the other moms from the little league team who manages that branch, we set up auto-deposit or just drive through an ATM. We sit alone on the couch and tweet about “life,” or post cute videos and pics from other people’s lives and adventures, instead of scheduling a cookout with friends and leaving the phone in the bedroom, or taking our own adventure “to where no cell tower has gone before.” I’m not a culture basher. I not only use, but thoroughly enjoy, digital assets such as social media and the convenience of online shopping and banking. But I also like to look a person in the eye and share a meal, or take a road trip and really hear about how they are doing and who/where they want to be in the future. We were created to live in a community, and are always better together than living as an island. My hope

Kansas Construction Projects: Liquidated Damages or Unenforceable Penalty?

Construction Law / By

In a case handed down by the KS Supreme Court a few years ago, the Court effectively ruled that, in Kansas, liquidated damages will be strictly enforced without regard to whether or not they are later found to be excessive in relationship to what the damages for delay actually were.  See, Carrothers Const. Co., L.L.C. v. City of South Hutchinson, 288 Kan. 743 (2009). In Carrothers, the issue for the Court boiled down to whether it was legally correct to look back “retrospectively” at the liquidated damage amount in a construction contract, after the fact and upon conclusion of a project, to determine if the damages were in effect “penalties” rather than damages. Generally, penalties are not allowed in contract law and are unenforceable. In the past there had been differing results in the lower Kansas Appellate Courts where some had allowed a “look back” to determine if the liquidated damages, in hindsight, had a reasonable relationship with the actual damages incurred due to the delays. Other Appellate Courts had not allowed the “look back.” In the Carrothers Construction case the Kansas Supreme Court put these differing lower court holdings to rest stating that no longer would Kansas courts allow a “retrospective analysis” to determine whether the liquidated damages were a penalty, overruling any prior holdings to the contrary by the lower courts. For all future analysis of liquidated damages, only a “prospective analysis” of whether the liquidated damages are reasonable at the beginning of a contract will be allowed. In the Carrothers Construction case, the parties agreed the project was completed late. The issue was whether the liquidated damages were fair. Carrothers argued the City had not been damaged due to the late completion because the City was able to continue to operate in its existing facilities while the new facility was being completed. In other words, Carrothers argued the City really suffered no damages and to assess liquidated damages would, in effect, be a penalty. The Court left no doubt that in Kansas, between consenting, legally sophisticated, otherwise equal parties, liquidated damages will be strictly enforced. No longer would Kansas courts look back, at the conclusions of a construction project, to make a determination whether the damages as actually applied were a penalty. Provided the liquidated damages are a reasonable estimate of what the damages might possibly be, as determined when the parties agree to the liquidated damages in the contract, they will be enforced, period. But a word of parting caution…this is Kansas law only and other states differ. On top of that, the location of a construction project is not necessarily the state law that may apply. Many contracts contain a choice of law clause, which may dictate what state law applies to that specific contract. As usual the best advice is to seek the advice and counsel of a good construction lawyer to review the terms of the contract before the contract is signed, and certainly when faced with being assessed any type of damages, including liquidated damages for delay.

Motorcycle Safety: Stay Shiny Side Up

Personal Injury / By

I don’t know about you, but I’m itching for all this Kansas City rain to stop so I can start riding regularly again. The wind in my face. The open road. The sense of freedom and release. For those of us who ride motorcycles, there is little else that compares to the experience. Unfortunately, there are also many risks associated with cruising the open roads on our favorite 2-wheeler, that don’t exist within the confines of the standard automobile. If you have never suffered an injury while riding, here are some tips to keep you safe and shiny-side up. If you have recently been in a motorcycle accident, jump down and read about some specific information you need to be aware of when pursuing a recovery for your injuries and damages. Tips to stay safe and shiny-side up Always wear a helmet. The statistics overwhelmingly show that wearing a helmet not only can save your life, but can protect you from suffering other serious and crippling consequences like a traumatic brain injury. If you don’t like the feeling of “missing out on the wind and elements,” then buy a half-helmet or even a shorty. But whatever you choose, please just choose to protect your dome with a properly fitted and DOT-approved helmet. Keep close tabs on your tires’ air pressure. Motorcycles tires, unlike car tires, are specifically designed and engineered to flex and roll, especially on the edges and up into the side walls. This is what allows the bike to “lean” into turns while still maintaining the proper center of gravity to stay upright. While car tires can operate more or less OK when slightly over or under inflated because they maintain constant and full contact with the road surface, over or under inflated tires on your bike can cause the bike to either not flex enough to allow a bike to lean and turn sharply, or flex too much and thus lose all traction. So, check your air pressure at least weekly and keep it at the manufacturer recommended levels. Keep your gas tank full and your chain or belt properly lubed and maintained. A broken chain or belt can lead to catastrophic consequences. As for an empty gas tank, well, let’s just say we’ve all been the “I felt so cool riding and now feel like a loser walking” person at least once in our life. Let’s try to never go there again. Drive as though you’re invisible to others because, to most cars and trucks on the road, you are. If you always assume the worst can happen, you’ll be ready to have the best ride. Enough said. Issues you’ll face in an insurance claim or lawsuit for injuries from a motorcycle accident If you’ve been involved in a motorcycle accident, you’ve likely already faced one of our greatest fears as riders:  an unpleasant encounter with a car or truck. The National Highway Traffic Safety Administration reports that motorcyclists are far more likely to be killed or injured in a traffic accident than passenger car occupants. If you wonder why, see safety tip number 4 above. Unfortunately, in a large majority of cases the injured rider will have insult added to their injuries when they are blamed, at least in part if not in full, for the accident and for causing their own injuries, even when they weren’t at fault at all. As wrong as this may be, many people still cling to old stereotypes about motorcyclists living and riding recklessly. In addition, many defense attorneys representing the at-fault auto driver know about the bias against bikers, and will do all they can to exploit the stereotypes in front of jurors to try and sway the jurors to not be as sympathetic or generous to a motorcyclist as they would be to any other victim of an auto accident. Similarly, and equally deplorable, is the tendency of a jury to not value the loss of quality of life for a biker as high as they would for an auto driver. These are just a few of many reasons why obtaining a fair settlement or jury verdict for motorcycle accident victims can be more difficult, and why it is all the more important to hire a high quality personal injury attorney that has experience with motorcycles, not only as a rider but in representing riders in personal injury insurance claims and lawsuits. An experienced motorcycle injury attorney knows how to fight fire with facts. It’s imperative to gather as much documentation and information as possible, including photographs and diagrams of the accident scene, credible witness statements, thorough medical records, testimony from the victim’s friends and family members, and evidence of fact-based claims for non-medical damages such as lost wages, out of pocket expenses, and other economic damages for care, support and maintenance. The defendant’s attorney will challenge and try to downplay these facts, while subtly introducing lifestyle issues in order to minimize your compensation. But your attorney can overcome these draconian efforts if they are familiar with these tactics and understand how to effectively counter them throughout settlement discussions and even on to trial.

Kansas Mechanic’s Liens – What’s in a Name?

Construction Law / By

When it comes to Kansas mechanic’s liens, how important is the name of the contractor on the lien if you’re a subcontractor or material supplier? Two cases in the past several years out of the Kansas Court of Appeals are very clear…the form is every bit as important as the substance. You’ve got to dot your i’s and cross your t’s, literally. The cases concerned K.S.A. 60-1103(1) which states “the lien statement must state the name of the contractor…” The Court left no room for doubt that the name must be more than close. It must be exact. In both cases the subcontractor or supplier almost had the name of the contractor correct on the liens, but not quite. The two cases are Nat’l Restoration Co. v. Merit Gen. Contractors, Inc., 41 Kan. App. 2d 1010 (2009), and Tradesmen Int’l, Inc. v. Wal-Mart Real Estate Bus. Trust, 35 Kan. App. 2d 146 (2006). The National Restoration case involved the construction of an Overland Park Dillon’s grocery store by Merit General Contractors, Inc., the HVAC subcontractor, and the ductwork supplier. After the HVAC subcontractor had been paid, it defaulted on its contract leaving behind unpaid vendors including the ductwork supplier. The supplier filed a mechanic’s lien naming Merit Construction Co., Inc. as the contractor, not Merit General Contractors, Inc. The Court affirmed the lower court’s summary judgment ruling that Merit Construction Co., Inc. is not the same legal entity as Merit General Contractors, Inc. even though both companies shared a common address and officers, and the lien was fatally defective. This was the second time the Kansas Court of Appeals ruled on nearly an identical set of facts. In the earlier Tradesman International case, a concrete subcontractor had also defaulted on its subcontract with Merit General Contractors, Inc. on a Wal-Mart Project leaving behind unpaid vendors in the process. A lower tier supplier to the subcontractor also incorrectly named Merit Construction Co., Inc. in its mechanic’s lien statement. The results were the same as the Court ruled the wrong contractor was named and therefore the lien was fatally defective and unenforceable. There are at least four lessons to be learned from these two cases and others like them, and each is applicable under Kansas, as well as Missouri, mechanic’s lien laws: 1) liens are creatures of statutes and must be perfect to be enforceable; 2) there are many pitfalls in preparing an enforceable lien; 3) if you make a mistake, you lose; and, 4) you should seek the services of an experienced construction lawyer to help you file and foreclose on your mechanic’s lien claims.

Rick Morefield Presents at ABA/TIPS Section Conference in Philadelphia

News / By

On May 1, 2015, Rick Morefield, Kelly Smits (Willis North America, Inc.) and Gerard Gregoire (Director – East Litigation Services, Allstate Insurance) were panelists at a CLE presentation entitled, “So You Want to Enhance Your Insurance Defense Practice?  Tips for Becoming a Valuable Partner to in-House Counsel.” Frederick McClure, Managing Partner, DLA Piper, LLP moderated the panel. The panelists discussed what inside counsel look for when hiring outside insurance defense counsel and what companies require from those lawyers who have the good fortune to be hired.

Court Funding Crisis

Business Law / By

We created this blog to provide timely and useful information about important legal issues. As a rule, we stay away from politics. This is one of those rare times when we will discuss something that you may consider political.  We do so because this issue is one that effects everyone who relies on the courts for justice. In fact, we believe the issue of fair court funding is NOT a political issue, but a Constitutional necessity. Many of the state and federal courts in our great country face a serious funding crisis. This crisis manifests itself in different ways in different states and in different courts. For example, in San Diego, California, court reporters are only permitted to record proceedings for 30 minutes. After that time, they are required to unplug their steno machines and leave. If either party requires the proceedings to be recorded to preserve a record for appeal, they must hire a private court reporter to do so. In Boston, Massachussetts, civil cases are delayed because the Constitution requires courts to give priority to criminal cases and there are not enough judges and court personnel to handle the civil cases promptly. In Kansas, the law has been changed to allow a longer period of time before the judicial nominating commission is informed it needs to meet to recommend nominees to replace retiring judges. This allows the state to delay paying for a replacement judge, but can result in too few judges to hear cases promptly. We even have some courts that haven’t had sufficient money for copy paper. There are many other examples throughout the country of real people suffering hardship because they can’t get their cases heard promptly. There are parents who go months without seeing their child because they can’t get a hearing on child custody issues. There are business owners who can’t collect lawful debts. There are personal injury victims who are out of work due to their injuries, but can’t get to court because there aren’t enough judges and court personnel to promptly hear the cases. In most states, the court system costs less than 1% of the state’s annual budget. Rather than saving money, cuts to court funding cost our economy billions of dollars. A recent economic analysis showed that delayed justice costs our economy roughly $52.5 billion dollars in lost investment income annually! See, “ECONOMIC IMPACT OF REDUCED JUDICIARY FUNDING AND RESULTING DELAYS IN STATE CIVIL LITIGATION”, Nels Pearsall, Bo Shippen, and Roy Weinstein, March 2012, published by ERS Group, Micronomics. This economic loss occurs because litigants do not use money that is at risk or that is in dispute for purchases or investments until the litigation is completed. So, what can we do about this problem? The American Bar Association’s Tort Trial and Insurance Practice Section, under the leadership of Section Chair Mike Drumke, has put together a Task Force on Fair Court Funding to reach the legislatures in all 50 states to work towards obtaining fair court funding nationwide. Rick Morefield of this firm and Dan Gourash of Seeley, Savidge, Ebert & Gourash are co-chairing that effort. We have a great deal of information that can equip you to talk with your state legislators and other persons of influence to correct this serious problem. Check out the TIPS Fair Court Funding Toolkit for more information. TIPS has also produced a brief Fair Court Funding Video that provides helpful insight into this crisis. Please join with us in in helping to solve this very serious issue that affects clients, lawyers, courts, and our economy.

Motor Carriers Caught in the Crosshairs

News / By

It seems like simple common sense that trucking companies should not put drivers on the road who are known to have drinking problems. A google search for the words “drunk truck driver verdict,” reveals million dollar and multi-million dollar verdicts against drunk truck drivers and the companies that employed them. Most motor carriers refuse to hire or retain drivers with alcohol issues. Common sense suggests that no one would criticize a motor carrier for terminating a driver with an admitted drinking problem. Motor carriers are not required to return an alcoholic driver to a safety sensitive position even if the driver has been treated for the alcohol problem. See, 49 CFR 40.305. Motor carriers would seem to have the discretion to make this decision. Common sense does not always prevail. The EEOC is focused on the rights of the disabled, not highway safety and as a result, they take a different view on this issue. The EEOC contends that a trucking company can’t take an alcoholic driver off of the road without determining, based on individual factual data, that the driver presents a high probability of substantial harm. In fact, the EEOC recently sued Old Dominion Freight Line, Inc. claiming it violated the Americans with Disabilities Act (“ADA”) by terminating a driver who reported he had a drinking problem, but then declined to complete treatment because it was too expensive. The jury in that case awarded the driver $119,612.97 in back pay. The EEOC stated through its General Counsel, “. . . the ADA requires that Old Dominion make an individualized determination as to whether the driver could return to driving and provide a reasonable accommodation of leave to its drivers for them to obtain treatment.  To maintain a blanket policy that any driver who self-reports alcohol abuse could never return to driving — with no individualized assessment to determine if the driver could safely be returned to driving — violates the ADA.” While this almost sounds reasonable, consider the consequences if Old Dominion had put this driver back on the road with a known alcohol problem and if this driver had a relapse and killed a family or even himself. Motor carriers, under this standard, are essentially required to make an educated guess about the driver’s sobriety and ability to remain sober and then live with the consequences if the driver is returned to the open road. While the rights of the disabled are highly important, public safety is of paramount importance. This case demonstrates the tension between the ADA and federal trucking and transportation law. The ADA demands that employers provide reasonable accommodations to disabled workers, including alcoholic drivers. Federal trucking and transportation law provides that a motor carrier shall not require or even allow a driver to operate a commercial motor vehicle if the driver’s ability or alertness is impaired in a way that makes it unsafe for him or her to operate a motor vehicle. The EEOC is making it more difficult for motor carriers to make decisions that protect the public from unsafe drivers. It is now more important than ever for trucking companies to carefully evaluate the programs they have in place for impaired drivers. At the same time, companies have the responsibility to make trucking as safe as possible.

Don’t Get Caught by the Juror Phishing Scam

Business Law / By

According to the U.S. Courts website, individuals in Kansas and other states are being targeted once again by a juror phishing scam. Scammers seek to obtain personal identifiers and credit card and/or debit card information by phone or email, and by use of a fraudulent online jury questionnaire. Some scammers are going as far as to threaten fines and even arrest for members of the public who do not comply with the request for information. Both the Kansas and Missouri Courts’ websites have posted warnings regarding these scams. Kansas and Missouri courts will not contact potential jurors to request social security numbers or banking information by phone or email. If you believe you have received one of these calls or emails, please visit your state court website for information on reporting the scam. To read more: http://news.uscourts.gov/new-year-old-juror-scam Tomi Holt is a paralegal and legal administrator with MSB Law, LC. The content of this blog is for informational purposes only and is not intended to provide legal advice on any issues addressed.

Living With Traumatic Brain Injury

Personal Injury / By

Injury victims who suffer a broken bone, a burn, or a serious wound deal with significant and obvious pain and limitations. Their friends and loved ones can see visible evidence of the injury, disability and pain. Serious concussions or mild traumatic brain injuries (TBI) are equally significant injuries, but with an important difference – traumatic brain injuries are not always immediately visible or obvious to anyone other than the person living with traumatic brain injury. Traumatic brain injury victims often suffer from the skepticism, doubt or lack of understanding of their friends, family members, co-workers, and even physicians. TBI victims can appear outwardly healthy while inwardly they suffer from pain, neurological disorders, light or sound sensitivity, balance issues, memory issues, cognitive difficulties and changes in emotions. When doctors use the term “minor traumatic brain injury”, they are referring to an injury that is not “minor” in the way that term is normally used. Victims of a minor traumatic brain injury often have significant disturbances in how their brain works. Early symptoms include headache, dizziness or vertigo, lack of awareness of surroundings, nausea, memory dysfunction, and/or vomiting. Later symptoms may include irritability and a low tolerance for frustration, persistent low-grade headaches, poor attention, inability to concentrate, lightheadedness, anxiety or depressed mood, ringing in the years or tinnitus, light sensitivity, sound sensitivity, difficulty focusing vision, short term memory loss, and excessive fatigue. Victims often have learning difficulties and communication difficulties. Recovery from a mild traumatic brain injury is a slow process. Often, even the doctors cannot determine how completely a patient will recover until 18 to 24 months after the injury. Moreover, recovery from a mild traumatic brain injury is not a steady, consistent process. Victims will have good days and bad days. This is a normal part of the recovery process. Victims of a mild traumatic brain injury will almost always require more rest. Over-stimulating the brain, getting back to work too quickly, or too much motion or activity may delay the healing process. Certain medications and drugs can negatively affect a traumatic brain injury victim or may delay the healing process. Even drugs such as alcohol, caffeine or nicotine can affect the patient differently after a traumatic brain injury. If you or a family member is living with traumatic brain injury suffered as a result of the wrongdoing or carelessness of another, you should consider whether you need the assistance of a lawyer. If you need legal assistance, we are glad to help. Our firm has worked with many brain injury victims and understands the unique difficulties of these cases. We understand the difficulties our clients face and hope to help guide them through the process while focusing on making sure they get the medical care and treatment they need.