The Personal Injury Lawsuit – Part One
When you have been hurt in an accident stemming from someone else’s wrongful conduct, you have the right to pursue full and fair compensation for physical injury and property damages. Often, time is of the essence, particularly when your injury makes it impossible for you to work. However, if insurance doesn’t fully cover your losses or you can’t quickly negotiate an acceptable settlement, you’ll have to go through a potentially lengthy process before your case can go to trial.
Preparing and Filing a Complaint
To start legal action, you have to file a complaint in the appropriate court. Before you think of doing this, you need to retain an experienced personal injury attorney, someone familiar with the law and the rules of procedure.
Pursuant to what is known as the “statute of limitations,” a personal injury lawsuit must be filed with the court within a specific amount of time after your injury (or after you should reasonably have discovered your injury). Failure to file within the time period set forth in the statute of limitations can result in a claim being barred.
Once the complaint has been filed and served on any named defendants, the defendants will have a specific period of time (usually 30 days) to file an answer to the complaint. Failure to do so in a timely manner can give a plaintiff the right to seek a default judgment.
The Discovery Process
Once the complaint and answer have been filed, a discovery schedule will be established by the court. There are generally methods of discovery, or gathering of evidence:
- Depositions — A deposition is oral testimony, given under oath, in response to questions from attorneys for all parties. This testimony is usually transcribed by a court reporter, but may also be videotaped.
- Interrogatories — Interrogatories are written questions from one party to another, and must be answered in writing within a specified period of time. The court usually establishes a limit on the number of interrogatories.
- Requests for production — Any party can request that other parties produce documents or other evidence relevant to the case.
You can also expect, early in the process, that the judge will encourage or potentially require the parties to engage in good faith efforts to settle, so the case does not have to go to trial.
Contact the Cintron Firm
At the Cintron Firm, LLC, we offer more than 14 years of experience to people in New Jersey facing a broad array of legal challenges. Contact our office online or call us at 201-791-1333 or (201) 535-0323 to set up an appointment.
What Is Equitable Distribution in a Divorce Proceeding?
As part of the divorce process, you’ll have to find a way to divide the debts and assets of the marriage. New Jersey is an “equitable distribution” state with respect to the allocation of a marital estate. In essence, that means that, if the parties cannot come to an agreement as to how to split of debts and property, the court will order that the debts and assets be divided fairly (though not necessarily equally). The court will take a number of factors into account when determining what is “fair”:
- How long the parties have been married—the longer the marriage, the more likely everything will be divided equally
- The age and health, both physical and emotional, of the parties
- The standard of living to which the parties were accustomed during the marriage
- Any income or property brought into the marriage by either party
- The existence of a valid prenuptial or postnuptial agreement, or any other written agreement made and signed by the parties
- The income and earning capacity of each party, including skills, education, work experience and length of time out of the job market
- The time and expense that would be required to allow a non-working spouse to become self-sufficient
- Any contribution to the marital home, including raising children, cooking, cleaning and other domestic responsibilities
- The contribution by each party to the education, training and earning power of the other party
- The extent to which either of the parties enhanced or dissipated the value of the marital estate
- The extent to which one of the parties deferred career goals to be a homemaker
- The need of one of custodial parent to own or occupy the marital home
- The tax consequences of the potential division
Though the parties are free to come to their own agreement, the court always has the discretion to review any proposed property settlement offer to ensure that there is no misrepresentation, fraud, duress or undue influence.
Contact Our Office
At the Cintron Firm, LLC, we bring more than 14 years of experience men and women in New Jersey who are involved in or contemplating filing for divorce. To set up an appointment, contact our office at 201-791-1333 or (201) 535-0323 or send us an e-mail.
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Understanding Negligence: Causation
In an earlier blog, we addressed the first element of a personal injury lawsuit based on negligence—the requirement that you demonstrate a breach of the duty to act as a reasonable person. In addition, you must show that the defendant’s failure to meet the required standard of care caused the accident that resulted in your injuries or losses. This blog addresses the element of causation.
Actual Cause
To succeed with a personal injury claim alleging negligence, you must first show that the defendant’s actions were the “actual cause” of your losses. Often referred to as “but for” causation, this element can usually be established or refuted by asking the simple question “would the accident have occurred in the absence of (but for) the defendant’s breach of the standard of care?” If the answer is yes, the defendant’s behavior is not the cause of the accident and the lawsuit will fail. If, however, the answer is no, you need to address the issue of proximate cause.
Proximate Cause
In many instances, there are a series of circumstances, typically happening sequentially, that result in accident and injury. The issue of proximate cause addresses how close (or proximate” the defendant’s breach of duty was to the actual injury or loss. The more remotely tied to the loss, the less likely there will be proximate cause.
In essence, proximate cause seeks to answer the question “was the injury or loss suffered reasonably foreseeable when the defendant engaged in the conduct that breached the duty of care?” Let’s look at an example. Suppose you are driving a car and sending and receiving text messages at the same time. Because you are distracted, you miss a stop sign or red light and slam into the side of another car. It’s reasonably foreseeable that driving while distracted could cause you to be in a motor vehicle accident, so there will likely be proximate cause for any injury to the other driver, passengers or damage to the other vehicle. However, if the car you hit was being driven by a heart surgeon, who was on his way to perform open-heart surgery and he is unable to perform the operation, there may not be proximate cause for any injury sustained by the heart patient and/or his family, as that type of result was not reasonably foreseeable.
Contact Our Office
At the Cintron Firm, LLC, we bring more than 14 years of experience men and women in New Jersey who are involved in or contemplating filing for divorce. To set up an appointment, contact our office at 201-791-1333 or (201) 535-0323 or send us an e-mail.
Can You Get Workers’ Compensation If You Are Paid “Off the Books”?
It’s a fairly common practice across the United States—in an effort to reduce costs, many employers hire either undocumented aliens or offer to pay workers “off the books,” usually paying less than prevailing wage. The worker benefits by not having to claim the income for tax purposes. But what happens when a worker who is not on the company payroll suffers a work-related injury? If you are paid “off the books,” are you ineligible for workers’ compensation benefits?
Fortunately, the answer is no—an employer cannot avoid paying workers’ compensation benefits by paying an employee in cash or otherwise outside of payroll. You can receive workers’ compensation benefits in New Jersey regardless of your status as an employee, as New Jersey has only two requirements to qualify for workers’ compensation: you must have been injure and you must have been working for the company at the time of the injury (a true independent contractor may not pursue workers’ compensation payments).
If you were truly an independent contractor, you may be denied workers’ compensation benefits. However, more often than not, workers paid off the books qualify as employees, even when there’s a written agreement setting forth the terms of the independent contract. The workers’ compensation judge will look at the actual relationship. If the employer dictates schedules, assignments, provides equipment or exercises significant control over the worker on a day-to-day basis, the relationship will likely be construed as an employment relationship.
Contact Us
At the Cintron Firm, LLC, we offer more than 14 years of experience to people in New Jersey facing a broad array of legal challenges. Attorney Mark Cintron has worked as a prosecutor and has extensive courtroom experience, so he’s always ready, willing and able to protect your interests before a judge or jury. Contact our office online or call us at 201-791-1333 or (201) 535-0323 to set up an appointment.
Can You Get Workers’ Compensation If You Are an Independent Contractor?
As a worker in New Jersey, you have a right to seek workers’ compensation benefits if you are hurt on the job. Unfortunately, employers and their workers’ compensation insurance providers both have a vested interest in minimizing or denying payment after a work-related injury. A common strategy they’ll employ is to allege that you were not an employee, but an independent contractor, and therefore responsible for providing your own workers’ compensation coverage. Workers in a variety of occupations often face this ploy, including salespersons, construction workers and landscapers.
As a general rule, though, these efforts are based on a number of faulty assumptions about eligibility for workers’ compensation:
- There’s no requirement that you be on a company payroll to qualify for workers’ compensation
- There’s no requirement that you have payroll taxes withheld, or that your employer pay any workers’ compensation insurance premiums on your behalf
- You don’t have to have an office, locker or other similar space at a company to qualify for workers’ compensation benefits
To the contrary, to successfully qualify as an independent contractor, you must meet a number of tests, including:
- You must be free of any direction or control by the company for whom you do the work—the greater the control of time, schedules, assignments, etc., the more likely you will be considered an employee
- You must be paid by the job, not by salary or hourly wage
- You must provide your own equipment—computer, desk, supplies
As a general rule, to be eligible for workers’ compensation in New Jersey, you must only show that you were injured and that you were working for the company at the time. To determine if you qualify as working for the company, the workers’ compensation judge will look at the totality of your relationship with the employer. If it has the appearance of an employer-employee relationship, you will qualify for workers’ compensation benefits.
Contact the Cintron Firm
At the Cintron Firm, LLC, we offer more than 14 years of experience to people in New Jersey facing a broad array of legal challenges. Contact our office online or call us at 201-791-1333 or 917-494-5695 to set up an appointment.
How Are Workers’ Compensation Benefits Calculated in New Jersey?
In New Jersey, as in all states, when you have suffered an injury because of the careless or negligent actions of your employer or a co-employee, you have a right to pursue workers’ compensation benefits for any disability experienced, as well as medical expenses. One of the first questions most people ask, after being hurt on the job, is “how much will I be paid in benefits?”
Temporary Disability Benefits
If your workplace accident or illness prevents you from working, but you are able to fully recover and return to work without any limitations, you’ll likely be eligible only for temporary disability benefits. In New Jersey, these are calculated based on your average gross weekly wage for the last 52 weeks. The benefit amount cannot exceed 70% of your gross weekly wage or salary, and will be capped at $896 per week (up to $903 in 2018). You are eligible to receive benefits until one of the following happens:
- You have received temporary benefits for 400 weeks
- You have been determined to have attained "maximum medical improvement" by a company approved doctor
- You have been able to return to your job
Permanent Disability Benefits
Permanent disability benefits may be total or partial. A total disability is one that prevents you from working in any capacity. If your disability is permanent and total, you will be entitled to receive benefits at the weekly rate for as long as your disability continues. You may also be required to certify your disability status on a regular basis.
If your disability is permanent, but only partial, it will fall under one of two categories: a scheduled loss or a non-scheduled loss. “Scheduled” losses are those types of injuries that appear on a list, or schedule, and usually involve injuries to specific parts of the body, such as arms, legs, hands, feet, fingers and toes. With these types of injuries, the “schedule” identifies a specific number of weeks of disability payments, based on the specific type of injury.
Any injury that does not appear on the schedule is referred to as a “non-scheduled” loss. This customarily refers to injuries to the head, spine and organs. You can receive weekly payments for up to 600 weeks, depending on the severity of your injury.
Contact Our Office
At the Cintron Firm, LLC, we bring more than 14 years of experience men and women in New Jersey who are involved in or contemplating filing for divorce. To set up an appointment, contact our office at 201-791-1333 or (201) 535-0323 or send us an e-mail.
Understanding Negligence: The Standard of Care
When you have been injured because of the wrongful act of another person, there are a number of legal theories that you can use to pursue compensation for your losses, but the most common claim is one based on an allegation of negligence. A lawsuit asserting negligence has three elements—components that you must prove to a court to successfully make a claim:
- You must show that the defendant failed to meet the required standard of care
- You must show that the breach of that duty of care “caused” the accident
- You must show that you suffered actual loss as a result of the accident
This blog addresses the first component of a negligence claim—the standard of care.
First, it’s important to understand that most of the laws governing personal injury have developed under what is referred to as the “common law.” The common law, which originated in England and has evolved over centuries, is derived from the opinions of judges, rather than from statutes or written laws enacted by legislative bodies. In many instances, the judicial opinions further clarify or construe the statutory law, but much common law has evolved in the absence of any written code.
One of the fundamental duties that has arisen from the common law is the concept of a duty or standard of care as related to personal injury. Essentially, this rule holds that everyone has an obligation, in all their actions in society, to behave as a reasonable person. So, when you are driving a car, building a house, maintaining residential or commercial property, designing or manufacturing a product, or even engaging in leisure activity, it is expected that you will only do those things that a reasonable person would do. If your behavior is reasonable, you won’t be held responsible for any injuries another person suffers because of your conduct. However, to the extent that your behavior deviates from the accepted standard of care, you can be found financially liable.
Unfortunately, the law provides little guidance as to what constitutes “reasonable” behavior. Instead, it’s typically a factual determination to be made by a jury, and, accordingly, can vary from case to case. The jury has absolute discretion to determine what constitutes reasonable behavior and whether your actions fell within the definition.
Contact Us
At the Cintron Firm, LLC, we offer more than 14 years of experience to people in New Jersey facing a broad array of legal challenges. Attorney Mark Cintron has worked as a prosecutor and has extensive courtroom experience, so he’s always ready, willing and able to protect your interests before a judge or jury. Contact our office online or call us at 201-791-1333 or (201) 535-0323 to set up an appointment.
Planning for Your Child’s College Education in a New Jersey Divorce
The state of New Jersey has been a pioneer in the promotion of higher education, long requiring that parents with the financial means provide a college education for their children, whether the parents are still married or have divorce. As a consequence, when you are involved in a divorce in New Jersey, you need to include a plan for paying the costs of tuition, room and board and other college expenses in your property settlement.
When assessing your responsibility to contribute to the costs of a college education for your offspring, the court will consider a number of factors, including:
- The financial resources of both parties
- The cost at the educational institution the child has chosen, and whether or not the amount requested is reasonable with regard to the school or program chosen
- Whether the chosen program reasonably relates to the child’s elected career goals
- Whether your child would reasonably be expected to go to college, given your values and background; and whether the child shares your values and goals
- The financial resources of the child, including the child’s potential earning capacity while in school
- The aptitude and likelihood of success of the child in the chosen course of study
- The financial aid the child will receive
- In situations where the parents are divorced, the extent to which the parent would have made contributions to the costs of a college education if still living with the child
The obligation to pay some portion of your child’s college education in New Jersey is not limited to covering the costs of undergraduate study. A parent may have responsibility for graduate, post-graduate or professional programs, including medicine and law.
Contact the Cintron Firm
At the Cintron Firm, LLC, we offer more than 14 years of experience to people in New Jersey facing a broad array of legal challenges. Contact our office online or call us at 201-791-1333 or (201) 535-0323 to set up an appointment.
