Business Law

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Insurance Issues for Business Owners

April 29, 2020 No Comments

Are you a small business owner wondering if you have an insurance claim for business interruption, for a cyber security incident, or other problems arising from the Covid-19 crisis? Or, has someone made a claim against your company and you wonder whether the insurance company is looking out for your company’s best interests? If you have read your insurance policies, you may be more confused than ever. Insurance policies are complicated, they are written in technical language, and are not easily understood without special training. When making a claim, success or failure can hinge on how the claim is presented to the insurance company. Let our team of lawyers at Morefield Speicher Bachman help you for a reasonable FIXED fee. There is no cost to find out if we can help. We have the training and experience to read and interpret your insurance policies. Let us help you navigate the insurance maze. Call us today, at (913) 839 2808 or go to msblaw.com/covid19-business support to learn more.

What is the Difference Between an Independent Contractor and Employee?

December 12, 2019 No Comments

America’s work climate has changed over the last several decades. Companies like Amazon, Uber and Ebay have paved the way in creating a new way to work. There are currently 57 million people who are part of the new “gig economy.” This type of work can be full time or part time and allows people to pick and choose who they want to work for, how many hours they want to put in, and ultimately become their own boss. Recently after a rash of delivery truck accidents, this new way of working has come under scrutiny. To keep up with growing demand, delivery drivers are being held to impossibly tight delivery schedules and have been involved in serious accidents, causing injuries and deaths. The companies have attempted to avoid any liability for many of these accidents, arguing that because the delivery drivers are independent, they are not liable. In many cases, the position taken by delivery services companies is morally and legally wrong. What is the difference between an independent contractor and an employee? This is an evolving area of law. As more and more people move into this type of work, state and federal agencies have increased their scrutiny in classifying workers. Classifying a worker as an independent contractor can benefit a company. Companies who employ independent contractors don’t have to pay payroll taxes, unemployment insurance, or benefits. They argue that they are free from liability if the contractor gets into a work-related collision. Although companies like to describe workers as independent contractors, in many cases the relationship looks more like a normal employer-employee relationship. There are several different ways to determine whether a worker is an independent contractor or an employee. Both the Department of Labor and the Internal Revenue Service have their own criteria, which varies in accordance to their specific departmental needs. One of the concepts that is evaluated is whether there is “economic dependence” present. In other words, does the individual performing the service derive a substantial portion of their income from the services rendered. For example, is the so-called independent contractor contracting with anyone other than the big online retailer? Other factors that are considered include : Financial: How is the worker is paid? Does the employer reimburse the worker for expenses and do they provide the tools to do the job? Contractual: Are there any written contracts between the employer and the worker? Does the worker receive any benefits such as pension, paid vacation or health insurance? Degree of Control: Does the company have control over how the worker does their job? If the above issues are answered in the affirmative, it is possible that the worker is an employee. Delivery Truck Drivers as Independent Contractors State and federal laws regarding this issue may vary, and each situation is unique. As this applies to Amazon, WalMart, UPS and other companies who use a gig business model, this can be a grey area. They argue that their delivery drivers are independent contractors, and should an accident occur, they are not liable. However, many of these companies assert considerable control about how the workers do their jobs, including: The driver’s routes The delivery schedules, for example same day delivery, Customer requirements like specific location of delivery, Number of packages that must be delivered in a day or other time deadlines. Whether the driver is working alone, or through a third-party delivery company, often their primary client, and sometimes their only client is the retailer. In the case with Amazon, workers have commented that everything they did while working was under the company’s control. They were told where to go, how to deliver the packages and how to interact with the customers. It remains to be seen how these cases will ultimately be decided, as they are pending in court. At Morefield, Speicher, Bachman, LC we believe that many delivery service drivers are ultimately working on behalf of the companies that they are providing delivery services for. And, we believe those retailers should be held responsible for the accidents caused by the drivers they control. If you or a loved one has been the victim of a delivery truck accident or feel your rights have been violated by being a misclassified worker, please come speak to us as soon as the accident occurs. We are here to ensure that your rights are protected, and you deserve compensation for any injuries you have suffered. Call us today at 913-839-2808.

Construction Industry Trends for 2019

February 14, 2019 No Comments

If you’re a construction business owner, it is important to be aware of upcoming trends in the industry. Being able to anticipate what is ahead will keep you from falling behind and help you remain competitive in an ever-changing business climate. The construction industry had a good year in 2018. Approximately 280,000 new jobs were added, and worker fatalities dropped to their lowest point since 2011. On the other hand, the industry faced some challenges, such as dealing with labor shortages and increased labor costs. Looking at the beginning of 2019, the trends that are emerging include: Slower Growth The industry has been perking along nicely and registered its seventh consecutive year of growth, rising 5.4% since 2017. While this growth is expected to continue, it is predicted to be at a slower rate. In the U.S., the forecast for total construction is at $808 billion, which is in keeping with the $807 billion that was predicted last year. Experts say this points to less vibrant growth in the coming year. The 2018 tax benefits we have enjoyed are starting to fade, and experts say that short-term and long-term interest rates will increase. While the possibility of a downturn is out there for 2019 or 2020, experts believe that it won’t be as drastic as the downturn in 2008. Labor Shortages and Material Costs The labor shortage is being felt around the country. Finding qualified workers to keep up with the demand in construction is challenging. As of November of 2018, unemployment was at a 50-year low of 3.7%, creating a labor shortage across the U.S. This year The Associated General Contractors of America reported that 79% of firms expect to add employees this year. At the same time, however, 78% of the firms report difficulties in finding salaried and hourly positions. Prices for construction materials have been on a steady rise. Threats of trade wars and tariffs have only added to this. Experts predicted a materials cost increase of 2-3% through 2018. Associated Builders and Contractors, however, reported that there was a 9% increase in building materials in the past year. The biggest increases were seen in softwood lumber, iron, steel, and steel mill products. Integrating More Technology Many recent technological advances have made their way into the construction industry and will continue to do so in 2019. The use of drones and 3-D printing, for example, are proving useful in the industry making construction work safer and easier. Other interesting technologies are on the horizon as well, including self-driving cars and the use of Business Information Modeling systems (BIM), which will assist in making the collaboration and coordination of projects much easier. Green Technologies It seems that Americans are more focused on the concept of sustainability now more than ever before, and that is being reflected in the construction industry. Interestingly, construction work accounts for 20% of global emissions. Green construction involves working on projects in a resource efficient and environmentally responsible way. Going green involves adopting smarter construction methods as well as using green materials such as carbon building facades, asphalt that will “heal” itself and thermally driven air conditioners. Sustainability and green construction are a trend that is expected to continue. Staying up to date on green technologies and methods can give you an edge in being selected for projects that require or prefer green technologies. Improved Safety Construction work can be dangerous and construction workers suffer from far more injuries and fatalities than workers in other industries. This has led to important new and improved ways to increase safety. Technologies are being designed to make construction projects safer, which include new mobile apps and computer programs to help employees adhere to safety guidelines. If you need help planning for the business year ahead or have a construction law issue you would like to discuss, please contact us. How do 2019 global construction trends compare to US trends.

Richard Morefield Appointed to Chair TIPS Trial Techniques Committee

May 30, 2017 No Comments

Attorney Richard Morefield has been appointed as Chair of the TIPS Trial Techniques Committee for the 2017-2018 membership year. As chair, Rick will lead a diverse group of trial attorneys and law students from across the United States toward the goal of enhancing trial and advocacy skills for the more than 2000-member committee. The Trial Techniques Committee is the largest committee of The Tort Trial and Insurance Practice Section (TIPS) of the American Bar Association (ABA). TIPS provides education, training, and networking opportunities to its more than 20,000 members which includes lawyers, judges, and law students.

Appeals: Kansas Supreme Court

March 7, 2016 No Comments

Next in Morefield Speicher Bachman’s series on law for non-lawyers, is a discussion about appeals in Kansas. This article will look at what the appellate courts do and the differences between the two levels of appellate courts. On March 9, 2016, Kansas residents will get the opportunity to attend a session of the Kansas Supreme Court at historic Topeka High School. The Court will hear oral arguments in several cases followed by an informal reception to meet the public. For more information about the special Kansas Supreme Court evening session at Topeka High School, visit the Court’s website. This is a great opportunity for students with an interest in the law and for the general public to see the Kansas Supreme Court in action. How Do Cases Get to the Kansas Supreme Court? There are two levels of appellate courts in Kansas – the Court of Appeals and the Supreme Court. Despite what many people think, the parties to a lawsuit do not have the ability to appeal every decision made by a lower court. After a trial, if one of the parties believes that the District Court made an error of law that affected the outcome of the case, that party can file an appeal in the Kansas Court of Appeals. The appealing party files a document called a Notice of Appeal. Each party then files a brief explaining their position in the case to the Court of Appeals. After the briefs have been filed, the Court of Appeals schedules an oral argument, usually before a panel of three judges. At the oral argument, each party typically has 15 minutes to present their case although the Court will permit up to 30 minutes per side in special cases. In most cases, the appellate judges will pepper the lawyers with questions about the case and about the law. This process allows the Court to clarify the positions of the parties and to explore the ramifications of any decision they make. The Kansas Court of Appeals hears most appeals from the trial courts with the exception of certain cases involving certain constitutional questions or questions relating to certain major felonies. The parties in a case that has been tried in the trial court have a right to appeal errors of law to the Kansas Court of Appeals. The Kansas Supreme Court has jurisdiction over appeals involving the death sentence, cases where a statute was declared unconstitutional, and discretionary review of cases that were decided by the Court of Appeals. The parties to a civil case do not have a right to have their case heard by the Kansas Supreme Court, even if they are unhappy with the outcome at the Court of Appeals. The parties can request review by the Supreme Court, but the Supreme Court determines which cases it will hear.

Mediation and Alternative Dispute Resolution

February 1, 2016 No Comments

This is the third article in our “Law for Non-Lawyers” series. If you are involved in a lawsuit, you should ask your lawyers about mediation or alternative dispute resolution. Alternative dispute resolution (“ADR”) refers to any method of resolving a claim that is an alternative to trial. ADR includes mediation, arbitration, summary jury trial and conciliation. Mediation is the most common ADR method. Mediation is used in cases involving construction issues, business disputes, personal injury, auto accident, wrongful death, and virtually any other type of issue. Although judges sometimes order parties to mediate, settlement during mediation is voluntary. In mediation, the parties decide whether to resolve their case out of court and, if so, how to resolve the case. This is one of the great advantages of mediation over trial. Mediation is a formal settlement discussion that is guided and managed by a mediator. Mediators are sometimes referred to as “neutrals” because they don’t work for either party. The mediator is typically chosen by agreement of the parties and their attorneys. Most mediators are retired judges or experienced trial lawyers. Before the mediation, each lawyer typically sends a summary of his or her client’s legal position to the mediator and sometimes talks with the mediator about the case. At this stage, the attorneys are helping the mediator understand the facts and law that control the case. In some cases, the parties decide to exchange the mediation case summaries with each other. The mediation usually begins with a joint session with the mediator. The mediator will explain the process to the parties and have them sign a confidentiality agreement. Statements made by the parties in mediation cannot be used against them if the case goes to trial. Likewise, the mediator cannot be compelled to testify at trial about anything he or she learned in the mediation process. At many mediations, the lawyers will then make opening statements explaining their client’s side of the dispute. The purpose of the opening statement is to let the other side know enough about the case to be willing to settle. In cases where the parties’ emotions are expected to run high, the mediator may encourage the attorneys to skip the opening statement to avoid increasing the tension and reducing the willingness of the parties to settle. The next stage includes caucus sessions. The mediator will put each of the parties in a separate room with their lawyer. The mediator will then meet with each side privately. What happens during the caucus sessions will depend in part on the mediator’s mediation style. Some mediators use a facilitative style and others use an evaluative style. In facilitative mediation, the mediator asks questions of the parties, tries to discern what their ultimate interests are and tries to help the parties find and analyze options for resolving their disputes. In the facilitative model, the mediator does not push the parties to reach a resolution, but is more of a guide. The mediator will take settlement proposals back and forth between the parties. In evaluative mediation, the mediator asks questions of the parties, analyzes the law, and tries to help the parties see the weaknesses in their positions. The evaluative mediator encourages settlement by helping the parties objectively understand the weaknesses of their case. The mediator helps each party determine its “Best Alternative To a Negotiated Agreement” or “BATNA” for short. The BATNA is the best you can do if the other party refuses to negotiate or tells you to jump in a lake. Knowing the BATNA can help a party weigh the risk of walking away from the mediation against benefit of the amount offered or demanded by the other party. In the greater Kansas City area, the evaluative model is more common in most business and personal injury mediations. Although less common, the facilitative model is useful when the parties need to resolve more issues than just the payment of money. For example, in a slander case it may be particularly important to the victim to have the other party publicly apologize or publicly retract their slanderous statement. The victim may be willing to accept less money if his or her reputation can be restored. Most good mediators have the ability to use either model of mediation depending on what is most appropriate for the case. If you will be mediating your case, tell your lawyer about anything other than money that could affect your interest in settlement. Your lawyer needs that information to select the most appropriate mediator for your case and to effectively represent you in the process. At Morefield Speicher Bachman, LC, our lawyers have extensive experience representing clients in mediation. Richard Morefield is a trained mediator with experience mediating a variety of business and other issues. He welcomes the opportunity to serve as a mediator in both business and personal injury cases. He is on the approved mediator panel for the United States District Court for the Western District of Missouri. If you have questions about mediation or need a trained mediator, don’t hesitate to contact our firm.