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Can I Get My Lost Wages Paid After a Car Accident? Dedham, Boston, MA

Joseph Coupal - Friday, July 31, 2015

By Neil Crowley

If, as a result of the car accident, you suffer injuries that prevent you from performing your work-related duties, you may be entitled to be reimbursed for a portion of your actual lost wages under the applicable Personal Injury Protection (P.I.P.) portion of your own policy. You may recover up to 75% of your lost wages, provided: (1) you were not paid during your absence from work; and (2) your $8,000 in P.I.P. benefits were not exhausted by the payment of medical bills. Remember that the $8,000 available under P.I.P. includes payment of medical bills and lost wages, unless additional “Medical Payments” coverage is available. You will need two items in order to collect your lost wage: 1. A disability note from your medical provider and; 2. a lost wage form completed by your employer which outlines the amount of wages lost.

There are tricky exceptions to this portion of the auto insurance policy. If you have questions regarding lost wages, contact Brooks & Crowley, LLP at 781-277-7321 or visit brooksandcrowley.com.

What is a Third Party Claim in a Personal Injury Lawsuit? - Dedham, Boston, MA

Joseph Coupal - Friday, July 24, 2015

By Neil Crowley

Perhaps the easiest way to start is to use labels and examples.

First party = an insured
Second party = typically an insurer
Third party = someone without a relationship to the other parties.

The first and second parties are usually bound by a contract.

If you are in a car accident, you (first party) can go after your insurer (second party) for the damage to your car if you have collision coverage in your insurance contract. You (for your injuries) or your insurer (for the money they paid to fix your car) each have a claim against the person who caused the accident (third party).

If you were at fault in an accident, there are only two parties to the claim.

Another example:

You are a carpenter and are hurt at work when the head of your hammer flies off and hits you. You (first party) may be entitled to workers compensation since you were hurt while on the job. You would make a claim against the workers compensation insurer (second party) for your lost wages.

Easy, right? Of course, you may also have a claim against the manufacturer of the hammer (third party). While we’re at it, the workers compensation insurer would also have a claim against the hammer manufacturer (also third party) for whatever amount they paid out to you.

We have spoken with people who didn’t realize they had a third party claim. It can make a big difference. For example, workers compensation claims do not include pain and suffering but third party claims do. Contact Brooks and Crowley and we can evaluate your situation.

Defendants Seeking to Withdraw Pleas in So-Called Annie Dookhan Cases Are Now Entitled to A Presumption of Egregious Government Misconduct

Joseph Coupal - Tuesday, March 11, 2014
Last week,  the Supreme Judicial Court of Massachusetts ruled that defendants who pled guilty in cases where Annie Dookhan signed the certificate of drug analysis are entitled to a conclusive presumption of egregious misconduct by the government.  The case, Commonwealth v. Scott, is the first to extensively discuss the findings of the State Police investigation into the Hinton Drug Laboratory and Dookhan’s evidence tampering.  In late November, Dookhan pled guilty to 27 counts of misleading investigators, filing false reports, and tampering with evidence and was sentenced to three to five years in prison. It is estimated Dookhan was involved in testing samples in over 40,000 cases and her misconduct raises serious questions regarding the validity of thousands of criminal convictions. In Commonwealth v. Scott, the defendant, Rakim D. Scott, was arrested in late April 2011 and charged with possession of a class B controlled substance, pursuant to G.L. c. 94C, §§  34.  The substance, believed to be crack cocaine, tested positive for  cocaine at the Hinton Drug Lab.  Annie Dookhan signed the drug certificate as the “Assistant Analyst.”  Before Dookhan’s misconduct was made public, the defendant admitted to sufficient facts to warrant a finding of guilt and the judge sentenced him to a continuance without a finding for twelve months.  During his probationary period, the defendant was charged with a subsequent crime that led to a probation violation.  Thereafter, the defendant filed a motion to vacate his original admission to sufficient facts, which the trial judge allowed. A defendant seeking to withdraw a guilty plea as a result of government misconduct hasthe high burden of demonstrating (1) egregious misconduct by the government in  his particular case and (2) that the misconduct materially influenced his decision to plead guilty or admit guilt.  In cases where Dookhan was the primary or secondary chemist, the Supreme Judicial Court held that “the defendant is entitled to a conclusive presumption that Dookhan’s misconduct occurred in his case, that it was egregious, and that it is attributable to the Commonwealth.”  The presumption eliminates a major hurdle for defendants because without it, the defendant would need to show that there was wrongdoing during the testing in his particular case.  Under Scott, if the defendant can furnish a drug certificate signed by Dookhan as the primary or secondary chemist, the defendant has satisfied the first prong of the test. However, the defendant still has the burden of proving that the misconduct materially affected his decision to plea.  To satisfy this requirement in Dookhan cases, the court stated that “the defendant must demonstrate a reasonably probability that had he would not have pleaded guilty had he known of Dookhan’s misconduct.”  It is clear that Dookhan’s misconduct would cause anyone facing drug charges to think twice about entering enter into a plea agreement.  However, the question is whether the defendant would have rejected the plea offer and instead gone ahead  with a trial.  There are many factors with varying degrees of importance judges will consider including: the defendant’s prior record; the penalty the defendant was facing; how favorable the terms of the offer were; whether the Commonwealth possessed other circumstantial evidence that supported the charge; whether the drug charges were merely a small competent of the over-all plea; or whether the defendant was indicted on additional charges.  Ultimately, the analysis is heavily based on the facts and circumstances surrounding each case and the factors that may have influenced the defendant’s decision at the time of the guilty plea. In Commonwealth v. Scott, the drug certificate signed by Dookhan by itself entitled him to the conclusive presumption of egregious misconduct by the government.  The Court, however,  remanded the case back to the trial court judge determine whether there is a reasonable probability that he would not have pled guilty had he known of Dookhan’s misconduct. If you have questions about this or any other criminal matters,  call Brooks & Crowley LLP today and discuss your case with  an experienced criminal defense lawyer.

The Speedy Trial Clock Keeps Ticking Even After Judicial Dismissal of a Complaint

Joseph Coupal - Tuesday, January 14, 2014
Every criminal defendant is entitled to a “speedy trial.” Under Rule 36 of the Massachusetts Rules of Criminal Procedure, if the Commonwealth fails to try a criminal defendant within 12 months of his or her arraignment, the defendant is entitled to a dismissal of the charges.  What seems like a relatively simple calculation, however, is complicated by the fact that certain delays are excused and not included in speedy trial calculations. A delay may be excused if it falls into one of the many excludable periods under rule 36 (b)(2) or if the defendant acquiesced, benefited from, or was responsible for the delay. The vast number of excused delays can result in cases taking well over a year to get to trial without violating a defendants’ rights to speedy trials.  These excludable periods allow the Commonwealth to stop the clock, so to speak, because they are not included in the 12 month calculation.  In fact, the Commonwealth can file a document called a nolle prosequi, which results in the dismissal a charge against a defendant, and later refile the exact same charge again without the time in-between being included in the speedy trial calculation.  These delays can be incredibly frustrating and seemingly endless to criminal defendants seeking their day in court. In the recent case, Commonwealth v. Denehy, the Massachusetts Supreme Judicial Court held that where the Commonwealth was not ready for trial and the case was dismissed, the time between the dismissal and re-issuance of the same charges was not excludable under Rule 36.  In this case, a defendant was arraigned and charged with assault and battery, disorderly conduct, and assault by means of a dangerous weapon on August 21, 2008.  Due to court congestion and continuances by the parties, the case was continued for almost two years.  On May 5, 2010, the case was scheduled for trial for the third time.  Because the Commonwealth was unable to proceed because an essential witness was absent, the trial judge granted the defendant’s motion to dismiss.  Over three months later, on August 12, 2010 the defendant was arraigned on identical charges.  He was eventually tried and found guilty on May 9, 2011.  On appeal, the Supreme Judicial Court vacated defendant’s conviction and ruled that Rule 36 only stopped the clock for dismissals following the filing nolle prosequi’s, not judicial dismissals.  In this case, the complaint was dismissed by the judge at the request of the defendant because the Commonwealth was unprepared.  As a result, any delay following the dismissal and subsequent re-arraignment is included in the speedy trial calculation.  The Court concluded that fourteen days beyond the 12-month limit could not be excluded under the various exceptions in the rule, so the defendant was entitled to dismissal of the complaint with prejudice.  The case may be viewed here. The Court noted the importance of defense counsel objecting to continuances and raising speedy trial issues at trial.  Case management can be complicated.  Make sure your criminal defense attorney knows how to protect your rights.  Call Brooks & Crowley LLP today at 781-251-0555.

Is The War On Drugs Coming To A Close?

Joseph Coupal - Saturday, August 24, 2013
United States Attorney General Eric Holder addressed the American Bar Association (“ABA”) last week to announce sweeping reversals on legislation that was intended to further the War on Drugs.  Attorney General Holder told the ABA that in 2010, $80 billion in federal spending went towards incarceration, and that federal prisons are filled to forty  percent beyond capacity.  Mandatory minimum sentences are partly responsible for those costs and numbers. Holder  is introducing a new program call “Right on Crime.”  This program  can only reach as far as the Department of Justice’s jurisdiction, but he lamented that so far,  Congress has been unwilling to pass legislation that will do away with mandatory minimum sentences.  Holder is also seeking to  have local lawmakers to create guidelines that are in line with the federal goals, which would allow judges more discretion in tailoring sentences to the  crime and the offender, rather than impose minimum sentences regardless. While this won’t change what is still illegal in this country, it will bring about a new era of punitive action.  Many, including Attorney General Holder, are hopeful that it will be one that is rooted in common sense and not the reaction of politicians who are  afraid of being labeled  as “soft on crime”. Read the full story here. If you are charged with a drug related crime, let the experienced lawyers at Brooks & Crowley LLP protect you.  

 Contributed by Laura Martin

Supreme Judicial Court Rules That Successor Lenders Are Not Shielded From Liability For The Original Lender’s Misconduct

Joseph Coupal - Saturday, August 24, 2013
Recently, the Massachusetts Supreme Judicial Court  overturned a Superior Court decision that will change the way Massachusetts courts analyze liability of  successor lenders and assignees on consumer home loans.  In Drakopoulos v. U.S. Bank, Nat’l Ass’n, 465 Mass. 775 (2013), residential borrowers defaulted on a mortgage that required monthly payments that exceeded their monthly income by $600.00.  The borrowers had been unaware that their income was inflated on their loan application (for a 10.315% stated-income loan), and they weren’t required to demonstrate how they could make payments that were 150% of their monthly income.  Following the default, the loan and mortgage were assigned to another lender for collection.  The second lender then foreclosed on the mortgage.     The borrowers raised the original lender’s predatory lending practices as a defense to the foreclosure action, claiming violations of the Consumer Protection Act, the Predatory Home Loan Practices Act, and the Borrower’s Interest Act. The Superior Court granted summary judgment on behalf of the foreclosing lender, ruling that the original lender’s conduct could not be attributed to the successor lender.  On appeal, however, the Supreme Judicial Court found that if the acts of the original lender were unconscionable, then the original mortgage was unenforceable.  Applying  common law principles of assignee liability to the contractual defense of unconscionability, the SJC  concluded that if a mortgage is unenforceable for this reason, then the mortgage does not  become enforceable by assigning it  to a third party.  This consumer-friendly decision reaffirms the fact that lenders may not shield themselves from liability simply because they are not the original party to a contract.   Successor lenders have an incentive to insure that the laws have been followed when the original transaction took place, or else they could be left unable to enforce mortgages that they received by assignment if the original lender engaged in unconscionable behavior.     If you are buying a home and need a mortgage, let the experienced lawyers at Brooks & Crowley, LLP help you navigate through the process.  

Contributed by Laura Martin

U.S. Supreme Court Announces Rule That Actual Innocence Can Overcome Procedural Barriers in Federal Court

Joseph Coupal - Wednesday, June 05, 2013
Massachusetts has a longstanding rule that allows defendants to file a motion for new trial at anytime by making a showing that “justice may not have been done.” In the federal courts, however, the rule is much different.  The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) bars new trial motions (called federal habeas corpus petitions) after one year from the date the convictions become final.  If new evidence surfaces, a petition may be made one year from the date that the evidence would have been found if the prisoner had engaged in due diligence to find new evidence.   Recently, however, the United States Supreme Court  issued its decision inin McQuiggin, Warden v. Perkins.  More than 11 years after his conviction for murder became final, McQuiggin filed a habeas petition, relying on three affidavits that he describes as new evidence. He asserted that these affidavits would prove his actual innocence, so that he should be relieved of the one-year limitations period.   Although the Court disagreed with McQuiggin’s assertion that the affidavits proved his actual innocence, the Court did state that  actual innocence, if proven, can overcome procedural barriers to the habeas corpus petitions  set forth in the AEDPA  The justices reasoned that structural barriers should not serve to bar evidence of actual innocence where doing so would result in a miscarriage of justice.   If you need a lawyer contact Brooks & Crowley LLP today and talk to an experienced criminal defense lawyer.  

Massachusetts State Police Sobriety Checkpoint Planned For Thursday, May 23 through Friday, May 24 in Suffolk County

Joseph Coupal - Thursday, May 23, 2013
The Massachusetts State Police have announced that they will be conducting a sobriety checkpoint at an undisclosed location  in Suffolk County beginning Thursday night and continuing through early Friday morning. Suffolk County consists of all the neighborhoods of Boston, Chelsea, and Revere. Here is a map to view these areas. The police are only required to provide advance notice of which county the sobriety checkpoint will be located, not the city or town. In its press release, Colonel Timothy P. Alben, Superintendent of the Massachusetts State Police said, “The selection of vehicles will not be arbitrary, safety will be assured, and any inconveniences to motorists will be minimized with advance notice to reduce fear and anxiety.” Typically, the police briefly stop every vehicle that enters the roadblock.  If the driver exhibits signs of alcohol or drug use, then they are sent over to a secondary area for further screening.  This “screening area” is where the next group of police are located, and their job is to administer field sobriety tests and preliminary breath tests to operators who are suspected of operating under the influence. If you are interested in ways to protect yourself, the easiest advice is not to drive after consuming alcohol.  Short of this, watch as attorney Steven Brooks explains why you should or shouldn’t take a Breathalyzer if you are pulled over for a DUI. If you are arrested for a DUI, contact Brooks & Crowley LLP and speak with an experienced DUI attorney.  

Contributed by Laura Martin

Are We in a Buyer’s Market? : Significant Upward Movement in CoreLogic and Case/Shiller’s Home Price Indexes

Joseph Coupal - Thursday, May 23, 2013
The Case/Shiller Indexes estimate that home prices increased by 7.3 percent in 2012, the strongest rate of appreciation in nearly seven years. In MSN Money’s article they explain how the most recent releases of CoreLogic and Case/Shiller data will affect the housing market. In an earlier post, we suggested that with home prices rising, that the time may be right for anyone  considering  buying a home.  CoreLogic suggests that while prices have been rapidly rising, this trend is likely to decelerate during the next year.  Regardless slowing increases of indexes, there are projected increases even into 2017. Additionally, CoreLogic reports that the markets that were hit the hardest by the recent housing boom and bust are the markets seeing the most rapid increases now. Read our earlier post here, to learn more about how Case/Shiller indexes work.  Contact Brooks & Crowley LLP at the outset if you are purchasing a home.  

Contributed by Laura Martin

Massachusetts Attorney General Says Lenders Violating Mortgage Settlement Terms

Joseph Coupal - Wednesday, May 08, 2013
On May 7, 2013, Massachusetts Attorney General Martha Coakley complained that  lenders Bank of America, Wells Fargo, Citibank, Ally Financial, and JP Morgan  Chase,  violated the mortgage settlement agreement.  The complaint was that the lenders are failing to offer help in a timely fashion, are sending borrowers inaccurate and confusing information, and have been denying them relief without specifying why. The $25 billion national mortgage settlement agreement was reached back in 2011, and was intended to prevent homeowners from losing their homes to foreclosures due to abuses by the lenders.  The settlement was meant to help stem foreclosures by offering financial assistance and improved loan servicing for consumers.  Joseph A. Smith, Jr., who is in charge of overseeing compliance with the national mortgage accord, said he believes the lenders can do better and intends to use his enforcement powers from the settlement to ensure compliance.  Read the full article here.  

Contributed by Laura Martin


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