Vegas Personal Injury Law Blog

A Structured Settlement allows a personal injury claimant to obtain cash over a period of time, rather than obtaining his settlement in a lump sum. Structured Settlements started in the late 1970′s, and they are a big business. Structured Settlements only apply to large personal injury cases, usually involving policy limits settlements of at least $100,000.00. A Structured Settlement is an annuity.

Voluntary Structured Settlements are used in personal injury cases in situations involving claimants that can’t manage their own finances.

In some instances involving minors and incompetents, a court will order that the client’s portion of a settlement must be placed in an income producing investment.

In the state of Nevada we have a Minor’s Compromise Statute which involves a form of Structured Settlement. The court must approve a minor child’s settlement and will enter an order that the child’s settlement must be placed in a FDIC insured bank account in the state of Nevada, until the minor child reaches the age of 18 years. These funds can only be removed from the block account by court order. The court will only order the release of these funds before the child turns 18 years of age, only for reasons involving the special educational or medical needs of the minor child.

As far as personal injury settlements are concerned, the client’s part of the personal injury settlement is usually divided into three types of compensation. One portion is for medical bills. Another portion is for pain suffering. These portions free from federal income tax. Compensation for lost income for IRS purposes is considered to be a gain and various IRS’s Codes apply. Also, some States have state income tax laws that also apply to these settlements. So, the income tax consequences of a settlement must be considered when establishing a Structured Settlement for a client, if a portion of his settlement is for loss of income.

Attorney fees can also be structured. If an attorney wants to defer paying income taxes on a portion of or all of his fees, he can use a Structured Settlement. One example would be if an attorney had a very large fee on a case, he could purchase a Structured Settlement that would pay him a fixed sum per month, or he could receive a lump sum after a fixed period of years. This may be a way for the attorney to defer some income tax to a point in time when he has a reduced tax exposure.

The pros of a Structured Settlement for a minor or incompetent involve avoiding exploitation of these settlement funds by individuals who are close to the claimant. Incompetents and minors may use a Structured Settlement as a vehicle to pay for ongoing medical needs resulting from their accidents.

If you have a client that can not manage his money; or, if a client’s age or socio economic status would indicate that he would blow a large lump sum settlement; or, if a client would make bad financial choices in investing his settlement, a Structured Settlement may be appropriate for these individuals. When a settlement involves an incompetent individual, there have been many prominent attorneys who have found themselves involved in a malpractice lawsuit, because they did not structure the client’s settlement and persons close to the claimant have taken off with their settlement funds.

The cons of a Structured Settlement are as follows:

1. As we all know bank accounts as well as other investments are currently paying low rates of interest at the present time. Therefore, this may not be the best time to opt for a Structured Settlement. However, most Structured Settlements will pay a much higher return than bank interest.
2. If a claimant chooses a Structured Settlement, there is no large chunk of cash for him to use for a down payment on a house, or to pay income taxes.
3. Structured Settlements can also be sold. The older Structured Settlements have a higher interest rate, and the company purchasing the Structured Settlement would receive an income stream higher than the current interest rates. Some states have restrictions on selling Structured Settlements.

Structured Settlements can be done in a hybrid form. The claimant can take some cash now and structure the remainder of the settlement.

Some factors to be considered in selecting an insurance company or investment company to write a Structured Settlement are as follows:

1. The financial strength of the insurance company should be considered. State Farm is the largest insurance company in the world, and State Farm writes reinsurance for most insurance companies. So a company like State Farm will be around long after other insurance companies have become insolvent, because of a catastrophic insurance event. Allstate, Farmers, CNA, and Geico are all solid companies that will write Structured Settlements. You should avoid any fly-by-night company because they may not be around in the future, or may not be solvent enough in the future to make the structured payments. We are all familiar with AIG. We almost lost this company due to their involvement with mortgaged backed securities.
2. A Structured Settlement is an annuity. As far as annuities are concerned, some can contain language of an assignment and release. These can be sold to a another insurance company which may be less solvent, because the original insurance company may not want long term payments on their books. Other Structured Settlements can’t be sold because they are designated as buy and hold.
3. Financial planners and bankers give us the impression that there is no fee on the Structured Settlements, however most brokers will receive a four percent commission that will be advanced by the insurance company, so that the original principal amount of the settlement stays the same.
4. One caveat concerning Structured Settlements is that it is unethical for a claimant’s attorney to take a kick-back from the person or entity that establishes the Structured Settlement.

Therefore, Structured Settlement annuities, even those that are mandated by a court order, must be carefully established to meet the specific needs and financial concerns of each client.

As a personal injury lawyer, I have seen how trends in personal injury claims handling and litigation have changed over the years.  In this electronic age, information and documents posted on social networks like Twitter, Facebook, and Myspace can potentially have a negative impact on personal injury claims.

Insurance Companies and defense attorneys are using these sites as a source to obtain damaging information about victims of personal injury accidents in their fight against compensating those victims for the personal injuries caused by their insureds.

If a person is involved in an automobile accident, he is likely to post some information concerning the accident, the injuries caused by the accident and how the injuries affected his life on a social networking site.  Insurance companies may find on these posts information that is favorable to them regarding how the accident happened, and/or they may find  information favorable to them concerning the development of injuries after an accident.  The more times that a story is told, the more likely that there will be inconsistencies.  Information posted on social networking sites may contradict subsequent accident and injury  reporting to insurance companies and to health care providers.  If contradictory information is obtained by an insurance company, this will certainly undermine the credibility of a personal injury claimant, and devalue his claim.

Credibility is an important factor to juries when they are asked to make decisions concerning an accident causing non-visible neck and back injuries. The general public has been well indoctrinated by insurance companies to get them to believe that all whiplash injuries are fraudulent.  A personal injury claimant’s credibility before a jury can be negatively impacted by photos and video of the claimant participating in physical or athletic activities after an accident. Any content that could portray a claimant in negative light should be taken off social media sites. The claimant should also have online friends refrain from posting this type of pictorial documentation from their own sites.

Posted information regarding illegal or immoral matters can be utilized by insurance companies and/or defense attorneys to put a personal injury claimant in a bad light and damage his character. A claimant must be very careful concerning what he posts. Google yourself to determine what content exists  that may compromise your claim. Think before your post, even on invitation-only sites. Don’t let anyone you don’t know become a friend after you make an accident claim.

Pictures or video of claimants riding motorcycles, motor boats, skateboards, bicycles or all terrain vehicles can undermine the value of their lawsuit or insurance claims.

The same guidelines should apply to the content of your e-mail accounts.

If you belong to 5 networks and have 100 friends on each network, potentially hundreds of thousands of people can view your posts; and, your posts may not be protected by privacy laws.

So,  personal injury claimants and litigants need to give sone thought to cleaning  up their social media pages after involvement in an injury producing accident.

You have undoubtedly heard the line that, “A person that represents himself in a legal matter has a fool for a client.”

Are there legal matters that can be handled economically without the direct services of an attorney?

One such legal matter may involve a Power of Attorney.

A Power of Attorney gives authorization to a person to act as the agent or attorney for another.

The person who is given the power to act is the Agent or Attorney-in Fact. The person who grants the authority is called the Principal. An Attorney-in-Fact need not be an attorney at law. A lawyer is someone that graduated from law school. A lawyer is someone licensed to practice law in a particular jurisdiction. An Attorney-in-Fact must be completely honest with and loyal to the principal. This duty is one of good faith and fair dealing and is sometimes referred to as a fiduciary duty. The Attorney-in Fact can be either paid or not paid for his services.

A General Power of Attorney authorizes another person (the agent), to carry on all of your business matters.

A Special, Limited or Specific Power of Attorney authorizes your agent to carry out a particular business transaction.

A Durable Power of Attorney becomes effective when the principal (you) becomes unable to manage your own affairs. It differs from the traditional Power of Attorney that comes into effect upon execution and terminates with your incapacity. The Durable Power of Attorney continues the authority to act beyond your incapacity.

A Durable Power of Attorney is sometimes referred to as a Springing Power of Attorney. It comes into effect when a specific event occurs, such as your physical or mental incapacity. These Durable Powers of Attorney can be used for property management or health care.

Durable Powers of Attorney are inexpensive and create a way to handle your affairs when you become incapacitated. They can eliminate the expensive legal process associated with your friends or family members appointing a guardian in the event of your incapacity. Springing Powers of Attorney can grant specific or general powers to your Agent or Attorney-in-fact.

Generally, Powers of Attorney cannot be drafted to give authority to perform acts such as voting for you in an election of for purposes of changing your will.

All fifty states recognize some version of the Durable Power of Attorney. Generally, Powers of Attorney must be in writing. Although under very rare circumstances oral powers of attorney may be appropriate.

A Health Care Proxy is a power of attorney that assigns to another person the authority to make medical decisions when you become incapacitated and it can be used in conjunction with a Living Will that dictates your wishes and intent regarding the extent of life-saving or sustaining treatment desired by you at the end of your life. A Living Will does not appoint another person to make health care decisions. A Living Will only allows you to express your wishes concerning life-sustaining procedures. Health Care Proxies become effective when your attending physician determines that you lack the capacity to make decisions. Prior to that time, you retain all decision-making rights. You may specify that the power won’t go into effect until a doctor certifies you as mentally or physically incapacitated. You may make the provision that two licensed physicians must certify or agree that your are mentally physically incompetent.

When does a Power of Attorney end? Powers of Attorney generally terminate when you die or become incompetent. You can revoke a Power of Attorney at any time,unless it contains a valid irrevocable clause.

There are many situations where a Power of Attorney can be used:

1. To give someone the authority to manage your financial affairs if you become physically or mentally incompetent.
2. If you are out of a jurisdiction on vacation or on business, and you need to complete a real estate transaction.
3. Allow assets to be transferred from one brokerage account or bank account to another.
4. Grant the authority to your broker to buy or sell securities.
5. Grant the authority to a person to handle banking transactions such as deposit and withdraw funds, if you can’t physically go to the bank.
6. Grant the authority to someone to enter your safe deposit box.
7. Grant authority to a person to handle matters related to government benefits such as social security, to manage and operate your businesses in your absence, to settle insurance claims, to purchase insurance, to handle your debt collection, or to borrow money on your behalf.

What are the general requirements of a Power of Attorney?

1. A Power of Attorney must be witnessed by a notary or some other public officer. Notarization makes it harder for someone to challenge the validity of your signature and allows the document to be recorded for use with real estate transactions.
2. You must be mentally and physically competent to execute a Power of Attorney.

The scope of a Power of Attorney is almost unlimited. For example, I recently had a personal injury client who was involved in a motor vehicle accident with her minor granddaughter. I drafted a Power of Attorney for the mother to grant authority to the paternal grandmother to handle all aspects of her daughter’s personal injury claim, including the authority to obtain court approval to settle the daughter’s claim by way of a Minor’s Compromise Order, which is required by Nevada law to settle a minor child’s accident claim.

My law firm soon will be involved in the practice of virtual law at NevadaLawOnline.com . Virtual law gives clients access to a secure website containing legal forms for various legal matters. Clients can utilize these forms with or without attorney input. For an additional fee clients can have their legal documents reviewed or have their questions answered by an attorney via telephone, e-mail or by teleconference.

As previously mentioned a Power of Attorney may be one of those legal matters that can be done by you without or with limited attorney input.

Between the dates of September 5, 2008 and October 9, 2008 five infants, all under the age of 3 months died from similar symptoms.  Each of the infants lived in a separate building of this Section 8 apartment complex. One infant died in each five of the  separate  buildings of the six-building complex.

All the infants passed away within one week one week of experiencing the first symptoms.

Adults living with the infants experienced skin rash similar in appearance to poison ivy, fatigue and headaches.

It is reported that weird looking flies appeared from the air conditioning ducts.

The pesticide utilized in these buildings possibly contained Bifenthrin. A product sold by Nu-Calgon was used to clean the coils of the apartment air conditioners. The Nu-Calgon product consists of aqua ammonia, diethylene glycol monethyl ether, etheline glycol, n-butyl ether tetrasodium EDTA, caustic soda sodium metasilicate, sodium nitrate, butane and propane (volatile components are butane and propane).

Just prior to Thanksgiving 2008 all of the air conditioning duct work, water heaters and water heater water lines were replaced in these apartment buildings.

Toxic mold, Sudden Infant Death Syndrome and Radon have been ruled out as causes of death.

As revealed by autopsies, common symptoms and pathology  experienced by the infants prior their death were as follows: