Does your LLC protect you from tort claims?

Individuals starting out in business may misperceive and exaggerate the protections that an LLC offers.  A Limited Liability Company (“LLC”) may not protect you from ‘torts’ or ‘negligence’ claims.   An LLC may offer significantly greater protections from ‘contract’ claims, i.e. ensuring that business owners do not become personally liable for debts of the company.  Take for example a commercial lease agreement, which is a contract.  You decide to open a small business selling goods or services.  You form a single-member (owner) LLC.  You approach a perspective landlord who has an appropriate space.  Your intent is to rent the space, allowing customers onto the premises to buy goods or services from you.    A lease is signed, and the LLC is identified as the tenant.  You, personally, do not sign as a party or guarantor of the lease agreement.  Here, if the LLC goes out of business and doesn’t pay the rent, the landlord will have difficulty collecting against you personally (attaching your wages, bank accounts, or other property) unless the landlord can ‘pierce the corporate veil’, which can be quite difficult.  However, if you personally guarantee the lease payments to the landlord, then you can be made responsible if the LLC does not pay the rent.  In this case the LLC may offer protections depending on how the contract is written.  Always look to see if there is a personal guarantee!

Tort / negligence claims are quite different from contract claims.  A director or officer who commits a tort, or directs the tortious act done, or participates or operates therein, is liable to third persons injured, even though liability may also attach to the corporation for the tort.  (See for example Sacred Heart University v. Voll, FBT-CV15-6048244, Hon. Michael P. Camp, Connecticut Superior Court J.D. Bridgeport.)  For example if an engineer operates an LLC, and he or she commits malpractice, causing a structure to collapse causing injury, then the injured will seek out damages for negligence or malpractice against the engineer.  The LLC may offer no protection, and insurance may be the engineer’s best defense. The same liability could attach to an owner of a restaurant whose poor sanitation practices cause illness.

An experienced attorney will tell you why an LLC is important, and why its protections are sometimes inadequate.  You must also maintain certain ‘business formalities’ to maximize the afforded protections of the LLC.  An LLC is just one tool to protect yourself.   As illustrated above, insurance is another significant tool.  What type of insurance you need, will depend in large part on the nature of your business and you should discuss this with a qualified commercial insurance agent.

If you are starting out in business you should speak with an experienced attorney to understand these nuances.  If you elect to form an LLC online, with no attorney consultation, you may be doing yourself a significant disservice.

Connecticut Law Tribune Reports on 2015 Jury Verdicts and Settlements

As reported by the Connecticut Law Tribune, the highest plaintiff’s verdict in Connecticut in year 2015 was $6.3 million, reached in the case of Peter Kantorowski, co-administrator for the estate of Dwayne Kantorowski vs. St. Vincent’s Medical Center.  This was a medical malpractice case in which a jury found that the emergency room doctor, and the primary care doctor, for a patient who died of a heart attack, were each 50% at fault for the patient’s death.

The highest settlement in Connecticut for year 2015 is reported to be the case of Mary Esposito vs. Shawn Osinski, et al.  In this case a lawsuit was filed by the mother of a motorcyclist killed by an alleged drunk driver.

A plaintiff in Connecticut may seek both economic, and non-economic damages.

“Economic damages are defined as compensation determined by the trier of fact for pecuniary losses … [including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages] …”

“Noneconomic damages are defined as compensation determined by the trier of fact for all non-pecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering …” (Emphasis added.)   Citation:  Deas v. Diaz, 121 Conn.App. 826, 838, 988 A.2d 200 (2010).

The list of “Top Connecticut Verdicts & Settlements of 2015” is available here: http://www.evergreeneditions.com/publication/index.php?i=303407&m=28958&l=1&p=4&pre=#{“page”:8,”issue_id”:314875}

How to Hire a Contractor

We litigate disputes between homeowners and home improvement contractors.   For tips on how to hire a contractor, watch general contractor Tom Silva’s video here:
http://www.thisoldhouse.com/toh/video/0,,20672091,00.html

Do a simple background check on your proposed contractor.
License Lookup:  https://www.elicense.ct.gov/Lookup/LicenseLookup.aspx
Civil litigation case lookup:  http://civilinquiry.jud.ct.gov/PartySearch.aspx

In Connecticut always make sure your contractor’s written agreement complies with the Connecticut Home Improvement Act. For more details, see:
http://www.marder-law.com/2016/02/contractors-the-connecticut-home-improvement-act/

 

Husband’s digital voice activated audio recording of Wife, precluded from evidence.

Was the Audio Recording Obtained Illegally? Is it Admissible?

Litigants, including parties to a divorce, often ask if they can record a party or witness, in a dispute.  The recording will not be admissible in a Connecticut court, if it is obtained illegally.  Connecticut General Statute §52-184a provides:  “No evidence obtained illegally by the use of any electronic device is admissible in any court of this state.” Unauthorized access to a “computer system” is also a crime in Connecticut, and therefore could be precluded.  See CGS 53a-251.  The prohibition on use of illegally obtained recordings in court (i.e. trials or hearings), has been extended to their use at depositions.

In Simonson vs. Simonson, FA15-6025703, the Court precluded the use of an audio recording. The husband recorded his wife’s telephone conversation by placing a recording device behind the driver’s side seat of a truck, that the husband owned.  When the Wife spoke to a non-party on the telephone, her voice (but not the voice of the non-party) was secretly recorded.  The husband’s attorney attempted to play the recording during a deposition, but he was precluded from doing so, and the recording was further precluded from being used at trial.

A different result may have been obtained, if the recording was not a telephone conversation, and if at least one party to the conversation consented to the recording.  Connecticut judges frequently admit into evidence, recordings made by a spouse of the other spouse, when the recording spouse was present and a party, to the recorded conversation.

“Eavesdropping” in Connecticut is a Class D felony, punishable by a prison term of one to five years, and a fine of up to $5,000.  However civil / family court judges may exclude illegally obtained evidence, even if a person is not arrested or convicted of a crime.

A person commits the crime of eavesdropping “when he unlawfully engages in wiretapping or mechanical overhearing of a conversation”.

General Statutes §52-187(a) provides:

“Wiretapping” means the intentional overhearing or recording of a telephonic or telegraphic communication or a communication made by cellular radio telephone by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment. The normal operation of a telephone or telegraph corporation and the normal use of the services and facilities furnished by such corporation pursuant to its tariffs shall not be deemed “wiretapping”. (2) “Mechanical overhearing of a conversation” means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment. (3) “Unlawfully” means not specifically authorized by law. For purposes of this section, “cellular radio telephone” means a wireless telephone authorized by the Federal Communications Commission to operate in the frequency bandwidth reserved for cellular radio telephones.

General Statutes §52-570(d)(a) provides:

No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use.

Committing a “computer crime” can also result in preclusion of evidence.  See C.G.S. §53a-251(b) (“unauthorized access to a computer system”):

(1) A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that he is not authorized to do so, he accesses or causes to be accessed any computer system without authorization.

(2) It shall be an affirmative defense to a prosecution for unauthorized access to a computer system that: (A) The person reasonably believed that the owner of the computer system, or a person empowered to license access thereto, had authorized him to access; (B) the person reasonably believed that the owner of the computer system, or a person empowered to license access thereto, would have authorized him to access without payment of any consideration; or (C) the person reasonably could not have known that his access was unauthorized.

The Memorandum of Decision in the Simonson case is available here:

https://docs.google.com/a/joeldefelice.com/viewer?a=v&pid=sites&srcid=am9lbGRlZmVsaWNlLmNvbXx3d3d8Z3g6M2FmMDZhNTU1MDZjNTA1OQ

Breach of Contract Claims:  Must the Agreement be in writing?

Some agreements, but not all agreements, must be in writing, to be enforceable.  Your state’s “statute of frauds” laws might apply to the type of agreement at issue.

For example, in Connecticut agreements / contracts conveying real estate, must be in writing, per the statue of frauds.

“Any contract whose purpose is to transfer to one of the parties an interest in land for a price paid or to be paid to the other party is within the Statute [and should be in writing].”  (Citation omitted.)  Zipp v. JFC Endeavors, Inc., CV10-5014884, March 18, 2011 (Hon. Cynthia Swienton).  (Note that Connecticut has other statutory requirements, governing the number of witnesses and acknowledgments, on real estate deeds.)

Although seemingly simple, this is potentially a very confusing area of the law, and factual and legal arguments pertaining to the statute of frauds, might be made in litigation that are pivotal to the success or failure of claims.

Connecticut’s Statute of Frauds, General Statutes Section 52-550 is set forth below.

 

Connecticut Statutes

Title 52. CIVIL ACTIONS

Chapter 923. STATUTE OF FRAUDS

Current through the 2015 Second Special Session

  • 52-550. Statute of frauds; written agreement or memorandum
(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged:

(1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property;

 

(2) against any person upon any special promise to answer for the debt, default or miscarriage of another;

 

(3) upon any agreement made upon consideration of marriage;

 

(4) upon any agreement for the sale of real property or any interest in or concerning real property;

 

(5) upon any agreement that is not to be performed within one year from the making thereof; or

 

(6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.

 

(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.

 

 

 

 

 

Dog Bite Liability:  “The plaintiff approached the dog, knelt in front of him, and raised her hand in front of him. …”

A 28-year old woman (the Plaintiff), recovered $15,000.00 non-economic damages (pain and suffering), and $815.05 economic / medical expenses, after the defendant’s dog bit her.

The Court’s factual findings, based on the evidence presented at trial, include:

  • The Plaintiff was at a barbeque, where the dog was kept.
  • The dog was twelve years old, blind in one eye, and was uncomfortable with strangers.
  • The Plaintiff acknowledged that she was aware that the dog was “not friendly”.
  • All attendees, at the barbeque, were advised multiple times that the dog was not friendly and to stay away from him.
  • A specific area of the house was designated for the event. There were multiple signs warning about the defendant’s dog.  Certain areas of the house were separated from the event and “off-limits” to the guests.  These were the areas where the dog was kept, including a portion of the house which was closed, locked, and contained signs directing guests to stay away from the dog.
  • The Plaintiff’s trial testimony confirmed that she was aware of the signs.
  • The Plaintiff consumed her own beer and as a result of her beer consumption she became “buzzed” or intoxicated.
  • “The plaintiff, in spite of the warnings, and knowing full well that the dog was not friendly to strangers and was dangerous, wanted to pet the defendant’s dog. The plaintiff approached the dog, knelt in front of him, and raised her hand in front of him.  The dog bit the plaintiff and she sustained lacerations to the right eyelid…”

The dog’s owner/keeper, argued that the Plaintiff’s actions amounted to trespass, teasing, and tormenting the dog; that she was warned several times that the dog was unfriendly towards strangers, and she was sarcastic in her response, stating “Thanks for the warning, and that she had gotten the message.”

The Court, despite noting the “unusual behavior and demeanor” of the Plaintiff, concluded that “the plaintiff’s conduct did not amount to trespass, teasing and tormenting the dog”.

This Superior Court decision is based on Connecticut’s strict-liability dog-bite statute, which provides in relevant part:

“If any dog does any damage to either the body or property of any person, the owner or keeper,… shall be liable for the amount of such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog…”
CGS 22-357

A copy of the complete Memorandum of Decision is available here:

http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=8430096

What is “Short Calendar” in Connecticut Superior Court?

UPDATE:  August 26, 2016:  The Family Short Calendar procedure at the Tolland Judicial District, 69 Brooklyn Street, Rockville, has changed effective October 3, 2016.  All matters that appear on this calendar are deemed ready.  Ready markings are no longer required. A marking is only necessary if the party who filed the motion wishes the matter to be marked off.  If the party who filed the motion does not appear, the court may deem oral argument waived and the motion may be denied by the court.  If the party who did not file the motion does not appear, the court may deem oral argument waived and may grant the relief requested in the motion.  The Family Short Calendar in the Tolland Judicial District, will be called at 9:30 a.m.

 

The “Short Calendar” procedure can be confusing to both Connecticut attorneys, and self-represented (“pro se”) parties.  To make matters more complicated, customs and procedures may vary between courts.

Short Calendar procedures apply to both civil and family court cases.  In Rockville Court (Tolland County, Connecticut) Short Calendar is held on Monday morning each week, except when Monday is a holiday.  Those who have filed motions in Family (divorce and custody) cases, will have to follow the Short Calendar procedure to mark their case “Ready” (or “Take Papers” if applicable, for certain motions), and notify the opposing party they intend to proceed.  This is done several days in advance of court, during the allowed ‘marking period’.

In Family Cases, motions will be marked “ready” again at the 9:30 am calendar call on Monday morning.   Parties should sign in with Family Relations as soon as possible, as there is usually a long wait.  Parties will need to first meet with Family Relations Officers, who will try to help the parties resolve their disagreements.  If an agreement is reached, it needs to be drafted.  The parties will sign the agreement, and bring the written agreement into Court.  Newer files get scanned and e-filed, before going into court, at the Court Services Center.  The judge will canvas the parties (i.e. ask if the parties believe the agreement is fair and equitable, and in the best interests of the minor child(ren), and review the details of the agreement with the parties), before the judge enters the agreement as an Order of the Court.

Parties should come prepared to Family Short Calendar with Financial Affidavits, and supporting documents (i.e. pay stubs).  They may also wish to prepare Proposed Orders, and prepare exhibits should the case have to go before a Judge, for a decision.  If a party has an Attorney, then the Attorney will accompany the party through the process.  The court might not permit lengthy evidence on a Short Calendar date.  It is possible that if an agreement is not reached, the case will be scheduled for a “Special Assignment”, which could be days or weeks later, depending on the court’s availability and urgency of the issues.

The procedures above may vary from court to court, and may be modified from time to time by the presiding judge, or new court rules.

The process for civil cases, is also quite different.  In civil cases, many motions are not ‘arguable as of right’ and there are special procedures to request oral argument.  You need to be familiar with the Connecticut Practice Book (“Rules of Court”), as well as the substantive law, including Rules of Evidence, that will apply to your legal issues.

Speak with an attorney who is familiar with the Short Calendar procedures in your jurisdiction, to address the specific circumstances of your case.

A Short Calendar and Marking Process Quick Reference Guide, published by the judicial branch, is available at:  http://www.jud.ct.gov/external/super/e-services/efile/shortcal_quickref.pdf