Liability Concerns for Dog Owners

Liability Concerns for Dog Owners

Dog owners love their dogs. Statistics show that there are approximately 89 million dogs in the United States which are kept by 60 million households. However, while our dogs give us great companionship, they can also create a liability concern, costing the owners substantial amounts of money if the dogs cause property damage or personal injuries. The statistics show that there are approximately 4.5 million dog bites per year in the United States and approximately 750,000 dog bite victims who require medical care each year. In 2015, more than 28,000 reconstructive surgery procedures were performed because of dog bites.

Under Wisconsin Statutes, Wis. Stat. § 174.02, an owner of a dog is strictly liable for the full amount of damages caused by property damage or bodily injuries caused by a dog to another person, animal, or property. (The strict liability is subject to the defense of contributory negligence. For example, if someone provoked the dog which resulted in a dog bite, that may reduce the dog owner’s responsibility for damages to that person.)

If the owner of the dog is aware of a previous time when the dog, without provocation, caused serious injury to someone, then the owner of the dog will be liable for twice the full amount of damages caused by the dog biting someone again with sufficient force to break the skin and cause permanent injuries. The amount of damages may include pain and suffering, past and future medical bills, wage loss, and permanent disfigurement. In addition to monetary damages, a court may order that the dog be euthanized under both of the following conditions:
1. The dog caused serious injury to a person or domestic animal on two separate occasions off of the owner’s property, without reasonable cause; and
2. The owner of the dog was notified or knew prior to the second injury that the dog caused the first injury.
The financial impact of dog bites is substantial. Dog attack victims in the United States suffer over $1 billion in losses every year. Dog bites and other dog-related injuries cost homeowners liability insurance companies more than $686 million in 2017.

Given that a dog owner is strictly liable for damages, what can a homeowner do to protect themselves? First of all, using good old common sense may go a long way to preventing these occurrences. Keeping one’s dog on a leash and preventing it from roaming onto other people’s property may help prevent unwanted injuries. Additionally, not allowing strangers or small children to approach one’s dog will also prevent situations where the dog may feel threatened. Also, keeping the dog in the house when mail carriers or delivery people are approaching the home would be a prudent course of action. The statistics show that 5,900 U.S. postal service letter carriers were bitten by dogs in 2012.

No matter what precautions one takes, it cannot always prevent dog bites from occurring. To protect against this personal financial risk that you have for being a dog owner, the first place one should look to is one’s homeowner’s or renter’s insurance policy. It would be wise to evaluate your insurance coverage at the present time if you own a dog. Depending on which insurance company you have, there are a wide variety of approaches taken by the insurance companies as to whether they cover dog bites or whether they exclude damages resulting from dog bites. Some companies will cover the damages, provided that you pay the premium for an endorsement providing this type of coverage. Some companies will only pay a small amount for damages and some may pay less depending upon the type of breed of dog that you have. Some companies will exclude coverage completely. Interestingly enough, some companies will provide coverage for the first bite, but then have language in their policy excluding coverage for any subsequent dog bites after the owner has knowledge of a first bite.

Therefore, it is recommended that if you want to be certain as to whether and to what extent you have insurance coverages for damages resulting from a dog bite, that you get in touch with your insurance agent. Another way for one to minimize the financial risk associated with dog bites would be to purchase an umbrella insurance policy which provides additional protection for liability. Our law firm has discussed the importance of an umbrella policy at many of our seminars and in other articles and website videos. An umbrella policy, which is relatively inexpensive, does not simply apply to automobile liability, underinsured motorist coverage, or uninsured motorist coverage. A personal umbrella policy can also provide for additional liability coverage under your homeowner’s policy for occasions such as this if you are found liable for damages resulting from a dog bite. Again, you are encouraged to check with your insurance agent to see what coverages are offered and what limitations or exclusions can be found in your policy relating to dog bites.

It is also important to note that if you do, in fact, have coverage for dog bites under your homeowner’s policy, then the insurance company is obligated to provide a defense to you in the event you are sued in a lawsuit resulting from the dog bite. The insurance company would then have a duty to defend you and pay for attorneys’ fees to defend you. That is a very valuable benefit of having the insurance coverage – not only may it provide coverage so that you do not have to dip into your personal resources to pay for any damages, but the cost of a defense in a lawsuit can be very substantial and it is an excellent benefit to have in the event this unfortunate situation arises. If you have questions about liability for dog bites or are a victim of a dog bite, you should contact an attorney right away. There are time limitations in which you can bring claims for injuries if you do sustain a serious dog bite and, therefore, it is important to preserve evidence and discuss the legal ramifications early in the process.

 

Important Legal Documents for Young Adults

Important Legal Documents for Young Adults

It can be an exciting time for parents of high school seniors. Many are selecting colleges, technical schools, planning for careers after high school, or perhaps a trip abroad. With all the changes that come with being the parent of a child who is turning 18 and in their last year of high school, in most cases parents are not thinking about the legal change that takes place when a child turns 18.

When a child turns 18, he or she is an adult in the eyes of the law. As a result, parents can no longer make legal decisions for their son or daughter, or even receive information about them that is considered private unless they have their son or daughter’s permission. This can have unexpected consequences and create problems, particularly when the son or daughter is many miles away. The good news is that many of these potential problems can be easily avoided with a little bit of planning. The following are a few of the legal documents a parent of child who has turned 18 should consider putting in place:

1. Healthcare Power of Attorney.
Many people only think about having someone execute a healthcare power of attorney if they are elderly or have a medical condition. In reality, everyone over the age of 18 should have a healthcare power of attorney in place. A healthcare power of attorney allows someone to appoint another person to make healthcare decisions for them in the event they are incapacitated. In the event a young adult is miles from home and is in an accident or has a medical condition that renders them incapacitated, even if it is temporary, a properly executed healthcare power of attorney will allow his or her parents to make medical decisions on their behalf. If a healthcare power of attorney is not in place, there is no clear decision-making authority and a legal guardianship may be required in some cases.

2. HIPAA Release.
The Health Insurance Portability and Accountability Act (“HIPAA”) is a federal law that protects the privacy of an individual’s medical information. While the HIPAA law provides each of us with important privacy protections, it can also have unintended consequences. For example, parents of a young adult have no legal right to receive any information regarding their adult son or daughter’s healthcare or condition without the son or daughter’s consent. In situations where the son or daughter is incapacitated or otherwise not able to give consent, it can be a frustrating situation for parents who are trying get information on their son or daughter’s condition. This situation can be avoided by having the adult son or daughter sign a HIPAA Release consenting to the release of his or her medical information to the individuals named in the release (e.g., his or her parents).

3. Financial Power of Attorney.
A financial power of attorney allows someone to appoint another person to obtain information and make financial decisions on their behalf. A financial power of attorney can be limited or broad in scope and can be effective immediately or only in the event of legal incapacity depending on your son or daughter’s preference. Financial powers of attorney can be important if a parent is assisting with financial aid matters, or if a young adult is traveling aboard and wants to allow his or her parents to handle their bank accounts and other financial transactions while they are gone.

4. Education Release.
The Family Educational Rights and Privacy Act (“FERPA”) is a federal law that protects the privacy of a student’s education records and requires that any student over the age of 18 provide written consent before his or her education records (such as grades, transcripts, etc.) can be released, even to parents who are paying the tuition bill. Many educational institutions are proactive and inform parents and students about this requirement. However, some are not, and parents should inquire with their child’s secondary educational institution regarding the requirements for the release of their son or daughter’s educational records.

If you have a young adult in your family and have questions or need assistance with regard to obtaining the above referenced documents, then you should contact one of the estate planning attorneys at Anderson O’Brien who can help you navigate this process.

 

Estate Planning for a Disabled Spouse

Estate Planning for a Disabled Spouse

Caring for a spouse who suffers from physical and/or mental decline can be an overwhelming task. The healthy spouse often spends the majority of his or her time ensuring that the care needs of their spouse are met. Faced with this daily struggle, it is all too easy for the couple to put off the crucial task of reviewing and updating their estate plan. Below is a list of some of the important estate planning documents that should be reviewed and possibly updated under such circumstances.

1. Wills.
Spouses often have wills that leave all of their property to each other upon the first of their deaths. While such planning makes sense when both spouses are healthy, it may not be the most appropriate planning if one spouse would likely enter a long-term care facility if his or her spouse dies and is no longer able to care for him or her at home. Given the high cost of such care, many individuals often turn to Wisconsin’s Medicaid program to help pay for such care. However, this program has strict financial eligibility requirements that limit the amount of assets an individual can have and qualify for benefits. The program allows a married couple to keep additional assets when one of the spouses lives at home (a “community spouse”), but such protections are lost if the community spouse predeceases the spouse who resides in a long-term care facility. Without further planning, those additional assets would then need to be spent down on the spouse’s long-term care. One way to avoid this outcome is for the community spouse to update his or her will to leave such assets to a testamentary supplemental needs trust for the benefit of their spouse, rather than to their spouse outright. Current Medicaid law provides that assets held in such a trust are exempt and that funding such a trust is not considered a disqualifying divestment. This can also avoid a “divestment by death” since Medicaid law now considers it to be a divestment if a community spouse transfers assets for less than fair market value in the five years after (rather than just the five years before) his or her spouse becomes eligible for Medicaid. The assets in the trust are then available for the spouse’s benefit and any assets that remain at his or her death can be distributed to the couple’s children or other beneficiaries.

2. Marital Property Agreement.
Wisconsin is a marital property state and spouses can sign a marital property agreement classifying their assets as either marital property or the individual property of one spouse. While marital property agreements are disregarded for Medicaid eligibility purposes, they can be useful tools in protecting assets from estate recovery. Federal law requires every state to have an estate recovery program allowing for recovery of amounts paid on behalf of recipients for certain Medicaid benefits, including long-term care services. Due to a recent change in estate recovery law, estate recovery claims may now extend to marital property in a surviving spouse’s estate. Spouses may reduce the likelihood of a successful estate recovery claim by signing a marital property agreement classifying their assets as the individual property of the healthy spouse.

3. Durable General Power of Attorney.
A durable general power of attorney is used to appoint an agent to make financial decisions on your behalf. Generic durable general power of attorney forms are often missing important provisions that would allow the healthy spouse to engage in Medicaid planning as agent on behalf of the disabled spouse. Without these specific provisions, the agent is often prevented by law from engaging in such planning. The authority to make gifts is perhaps the most important power that should be included in a power of attorney for Medicaid planning purposes. Restrictions may be placed on this authority, such as the requirement that certain individuals in addition to the agent must consent to the gift, but if gifting authority is not otherwise included, or is limited by amount, the agent may not be able to implement necessary Medicaid qualification planning. Also, since marital property agreements can be important Medicaid planning tools as discussed above, allowing the agent authority to enter into or amend such agreements can be helpful and provide added flexibility for your spouse. It is also important to authorize the agent to create and fund certain types of trusts on a spouse’s behalf that may assist him or her in qualifying for Medicaid, such as special needs trusts and other irrevocable trusts. Finally, it can be beneficial if the agent has a limited ability to update beneficiary designations in case such designations need to be changed in response to such Medicaid planning.

4. Health Care Power of Attorney.
It is crucial that the spouse experiencing physical and/or mental decline has a health care power of attorney in place that authorizes his or her spouse (or another individual) as agent to make health care decisions on their behalf if they become incapacitated. Additionally, if the healthy spouse has the disabled spouse named as primary agent, he or she should consider whether to update his or her power of attorney to name a different primary agent who is in a better position to make such decisions, such as a responsible adult child or family friend.

The potential long-term care costs that accompany a spouse’s physical and/or mental decline make advance estate planning all that more important. In particular, if your spouse is diagnosed with dementia or the early stages of Alzheimer’s disease, he or she may eventually lose their capacity to prepare or update estate planning documents. Accordingly, it is important that such estate planning documents be prepared and/or reviewed as soon as possible.

 

Social Media and Family Law #askingfortrouble

Social Media and Family Law #askingfortrouble

Social media sites such as Facebook, Twitter, Instagram, and Snapchat provide an abundance of opportunities to undermine your family law case. For many, social media has become a type of semi-public journal of their day-to-day life. Whether your relationship is in a rocky state, or you are already involved in family law litigation, your social media sites can be a gold mine of information that your significant other and/or their attorney can use against you in court.

Through your social media posts, one can track your daily activities, uncover the negative views you have of your significant other, and discover issues or characteristics that may reflect negatively on your parenting—all of which can be used as ammunition against you in a family law proceeding. Posting on social media every time you are out at a bar is not going to make you seem like a responsible parent when negotiating child custody and placement. Likewise, social media posts may impact your family law proceeding with respect to financial issues, such as property division, child support, and spousal support.

The following is a list of recommendations we encourage everyone to follow whether or not they are in the midst of, or think they may be heading toward, legal proceedings in a family law matter.

1. Do not post about every weekend outing, vacation, luxurious meal, concert, etc. that you take, eat, or attend without your partner.

2. Do not update your relationship status to publicize a new relationship while you are still going through legal proceedings in family court.

3. Do not post pictures of you with a new significant other.

4. Do not disparage your partner on social media.

5. Do not post statements or pictures about consuming too much alcohol or using illegal substances.

6. Do not brag about excessive spending or luxury purchases.

7. If you are not already social media “friends” with your children, do not “friend” them now.

8. Make sure your privacy settings are set as you want them.

9. Do not complain online about the judge, the family law court process, or anyone involved in the judicial system.

10. Do not write and post statements made while you are angry, hurt, or after you have consumed too much alcohol.

It can be tempting to vent to friends and family, or on a social media support group site. You may think that your privacy settings prohibit your information from being discovered by your significant other or their attorney, but you can never be certain that your trusted social media “friends” will not share information they obtained from your social media posts with the adverse party in your case. It is important to follow these recommendations to be careful about what you post on social media even when you think it is safe to do so because there is always a chance that it can be used against you in a legal manner.

 

Private Roads, Joint Driveways, and Easements

Private Roads, Joint Driveways, and Easements

Many properties in Wisconsin have some form of shared access. It can be as simple as a portion of the driveway crossing the neighbor’s property to more complicated scenarios where an access road crosses multiple properties and provides access to numerous lots. Sometimes a “private road” may have been created when the land was subdivided.

As statutory and zoning requirements have become more sophisticated (and developers more aware), it is now more common to see properly-drafted legal documents describing road access rights and obligations at the time new lots are created. However, this is certainly not always the case. In addition, there are many joint driveways, access roads, and private roads that were created when the statutory and zoning requirements were not as stringent.

Where neighbors are friendly and know each other well, informal arrangements regarding shared access often work for years without problems. Of course, if an owner dies or moves away, the dynamics may change. However, even where the parties continue to get along, the lack of a formal arrangement may become an issue if an owner desires to obtain a mortgage on their land. Most banks that offer long term, fixed-rate financing sell their mortgages in the secondary market. This is true even if the bank continues to service the mortgage. For the bank to be able to sell mortgages, they must comply with certain requirements. Those requirements can differ depending on whether the bank uses organizations created by Congress to buy mortgages such as Fannie Mae and Freddie Mac, or some other source to access the secondary mortgage market.

Why does all this financial mumbo-jumbo matter for shared access? Fannie Mae requires a legally enforceable agreement or covenant for the maintenance of any privately owned and maintained street that addresses: (i) responsibility for payment, (ii) default remedies if someone does not comply with his or her obligations, and (iii) an effective term of the agreement, which often is perpetual and binding on future owners. Without a recorded agreement, the bank will not provide financing. This type of trouble is difficult enough if a current owner is trying to refinance but can be even more challenging for a property owner trying to sell a property. In most cases, the parties to a transaction will not find out the potential buyer is unable to secure financing until well into the buying process.

Beyond financing, having a well-drafted agreement in place can also provide owners with peace of mind that their property can be transferred or sold as part of their estate without undue complications. If you own a property with shared access or are thinking about buying a property with shared access, call one of our real estate attorneys to find out what you can do to protect yourself and your investment.

 

Mueller v. TL90108, LLC a Tale on the Statutes of Limitations

Mueller v. TL90108, LLC a Tale on the Statutes of Limitations

Regardless of the facts, there are certain types of legal cases that restrict the amount of time in which legal action may be taken based on statutes of limitations. Statutes of limitations are laws that set the maximum time after an event within which legal proceedings may be initiated. When that period of time passes, the statute of limitations can be used as a defense to defeat the claim. Such was the case in the recent Wisconsin Supreme Court decision in Mueller v. TL90108, LLC.

Like a Bond film, this captivating story of international intrigue has a rare and exotic automobile at the center of its storyline. Specifically, a French handmade 1938 Talbot-Lago T150C with distinguished coachwork.

In 2001 the car (and title to it) were reported stolen. Under the cover of darkness, the thieves had disassembled the Talbot-Lago from a garage in Milwaukee, Wisconsin and smuggled it to Europe.* In 2015 a company purchased the Talbot-Lago for nearly $7 million. This company is listed as TL90108, LLC in court documents. TL90108 is owned by Illinois dental company founder Rick Workman. When the original owners of the Talbot-Lago found out that it had been purchased by TL90108, LLC in 2017, they sued for return of their property when Workman refused to do so.

Despite having a sordid history, the Supreme Court did not actually take into consideration the car’s history. Instead, their decision was based on the statute of limitations. Here, the statute of limitations for the wrongful conversion or detention of the Talbot-Lago was 6 years. The question the Court had to decide is when the 6-year period began. If it began in 2001 when the car was stolen, then Plaintiff’s claim would be dismissed as stale. However, if the 6-year period began when Workman refused to give back the car in 2017, then the claim was still timely. Because the statute in question very clearly states the 6-year period begins with the theft OR when the wrongful detention began, the Wisconsin Supreme Court allowed Plaintiff’s claim to move forward. The ultimate question of who owns the Talbot-Lago remains unresolved.

*The thieves remain at-large and were not part of the Mueller v. TL90108, LLC lawsuit.

 

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