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Tuesday, June 27, 2017

Murr v. Wisconsin: Another Blow to Private Property Rights



Murr v. Wisconsin
Another Blow to Private Property Rights


         Last week in an opinion that has been almost universally condemned, the United State Supreme Court struck yet another blow to private property rights in this country.   In Murr v. Wisconsin, the constitutional requirement that private property can't be taken for public use "without just compensation" (ie. “Takings Clause”) was at issue.  
        Our founding fathers so feared the power of the government to take private property that they included what is known as the “Takings Clause” in the Fifth Amendment of the Constitution. The Takings Clause made early America different from the rest of world, in that finally it was no longer permissible for the sovereign to simply take a citizen’s property without redress. 
         For the last century, the Supreme Court recognized when the government goes too far in regulating property making it economically unusable, the government has “taken property for public use” and must compensate the owner. The question in takings cases has always been how do you decide when the government has gone too far.  It was hoped that Murr decision would once and for all, provide the clarity necessary to define when the government has gone too far and taken private property.  Sadly, Murr accomplishes just the opposite.
         In the late 1990’s the Murr’s took title to two separate, but adjoining lots which the Murr’s father had purchased in the 1960’s.  One lot had a cabin, the second lot was vacant.  The Murr’s problems began in 2004 when the family tried to sell the vacant lot to pay for improvements to their cabin on the lot next door.  
         County officials blocked the Murr’s sale of the vacant lot, citing 1976 regulations that treated the two lots as a single parcel which couldn’t be divided. The family claimed those rules stripped the vacant land of its value and asked the government for compensation of $400,000.00 since they couldn’t build on their vacant lot. In contrast, the government argued it's fair to view both lots as a whole, despite the fact they were separate, and said the family was owed nothing.
         In a 5-3 decision (Justice Neil Gorsuch did not participate because he was not yet on the Court when the case was argued), the majority ruled in favor of Wisconsin but rejected it’s position that courts should simply treat contiguous parcels as one parcel anytime state law says they should be.  The majority also rejected the Murr’s position which was that there should be a strong presumption in favor of analyzing each parcel separately.  Instead, the Court further muddied the waters regarding what constitutes a taking by creating a new, and horribly vague multifactor balancing test which is sure to create nothing but confusion, uncertainty, and more litigation.   
         In his dissent, Chief Justice John Roberts recognized the majority opinion did absolutely nothing to clarify the state of takings law (as should be a guiding principle of the Supreme Court), but rather undermined the Constitution's protections for private property owners by giving government the ability to expand its power.  Roberts also recognized, “today’s decision knocks the definition of ‘private property’ loose from its foundation on stable state law rules.”  He went on to excoriate the majority saying their opinion “compromises the Takings Clause as a barrier between individuals and the press of the public interest.”  Roberts instead favored adopting a presumption of treating each parcel separately contending there is no good reason for concluding a regulation which qualifies as a taking for a one parcel shouldn’t be a taking for another parcel right next door.
        At the end of the day, the majority forgot or ignored the real question which is supposed to be asked in a takings cases, that being; what property rights has the government taken away from the owner?  Not how much property did the government leave him. The plain meaning of the text of the Fifth Amendment requires compensation whenever private property is “taken,” and does not create exceptions for situations where the owner loses only part of her rights.  Sadly, Murr ignores the plain meaning of the Constitution in favor of the ever increasing trend of judicial invention.  As a result of Murr’s judicial invention, government at all levels will now be emboldened to further eviscerate private property rights in favor of the “public interest”.  Property owners will be left with no choice but to look to property rights lawyers to become more creative in manipulating their land holdings to avoid common ownership of property.  

Wednesday, May 31, 2017

Jones Act Claim vs. Maritime Injury Claim



Jones Act Claim vs. Maritime Injury Claim

      The Jones Act is a comprehensive federal law passed by Congress in 1920 to protect United States ships and shipping interests from foreign competition. Among its many provisions, the Jones Act creates special rights for injured seamen.
      Title 46 of U.S. Code §30104 of the Jones Act is the provision which allows an injured seaman to bring a civil action against his employer if the seaman was acting within the courseand scope of his employment as a crewmember. If a seaman is injured as a result of the negligence of his employer the employer faces liability for the seaman’s injuries. In contrast, under state workers’ compensation schemes employees are generally prohibited from bringing lawsuits against employers for injuries caused by employer negligence.
     Who is eligible to file a Jones Act claim? Only a “seaman.” Under the statute, a “seaman” is defined as an employee whose duties contribute to the function of a vessel in navigation or accomplishment of its mission, and the employee’s connection to the vessel must be substantial. For example, if you were hired by a freighter owner to be ship’s engineer for an island cruise and you were injured aboard the freighter, you would qualify as a seaman. However, if you were the employee of an electronics firm that installed an electronics package on the freighter while it was in port you would not be qualify.
     Another unique feature of the Jones Act is that it allows for comparative negligence, which means that your own negligence will merely reduce your damage award proportionately. For example, many state laws prohibit an injured person from recovering against another if his or her own negligence was a partial cause of the injury. In a Jones Act claim however, if your negligence was determined to be 60 percent responsible for the cause of action accident and your employer is found to be 40 percent at fault, you may still recover 40 percent of your damages against your employer.
     There is a common misconception that “maintenance and cure” is somehow connected to a Jones Act claim. “Maintenance and cure” however is a completely separate right from a Jones Act claim. “Maintenance and cure” guarantees injured seamen receive medical care, treatment and support during convalescence. Seamen are entitled to maintenance payments until they have reached the point of maximum recovery. In order to be entitled to maintenance and cure, a seaman must only prove his injury occurred while employed on a vessel and was not caused by willful misbehavior.
     Unseaworthiness is yet another type of maritime injury claim. Unseaworthiness however is not a statutorily created remedy, but is a common law right to damages which arises when an unseaworthy condition on the vessel causes injuries. Unseaworthiness claims are not just available to seamen, but are also available to passengers as well. For example, if an injury occurs to a seaman or passenger as a result of poorly maintained or worn out equipment there is likely an unseaworthiness claim available.
     Regardless of the specific type of maritime claim, the basic process to be followed should be: 

1) Report any Injury no matter how insignificant if you there is any chance you might miss work to the captain or supervisor as soon as possible. If you don’t, you risk employers and more importantly insurers, assuming you were not really hurt.

2) You will be asked to fill out an accident report by your company Unless you are on medication or not capable of accurately filling out the report go ahead and do so, but don’t be afraid to tell your employer you are not able to do so. In the report section that asks who was at fault, if you do not specify the company was at fault, you will have a problem pursuing a Jones Act claim later. At worst, if you hope to be re-hired you should at least specify you are not sure who was at fault.
3) If you have significant injuries, you may be asked to give a statement to an insurer. Do your
best to avoid giving any such statement, at least until you decide if your injuries are significant enough to where you will need to hire a lawyer.

4) Get medical treatment as soon as possible. If you cannot obtain adequate medical treatment aboard the vessel, the ship should consult with a physician by phone or radio, and helicopter you out if need be. If you are in a foreign port you must be given proper medical treatment and sent home if necessary.

5) Do not miss doctor’s appointments and make sure you follow all of the doctor’s orders, and make sure not to miss any appointments. Don’t be surprised if you find out an insurance investigator is following you around taking pictures and videos trying to show you are doing something inconsistent with your doctor’s orders

6) Decide whether you need to hire a lawyer. As a general rule, you have no choice but to hire a lawyer if you have a Jones Act case, or if your maintenance and cure is not being paid, or if you can’t get medical treatment, or if your injuries are more than $15-20,000.

Tuesday, April 25, 2017

YES! YOU REALLY DO NEED BOAT INSURANCE


YES! YOU REALLY DO NEED BOAT INSURANCE

     Florida is the #1 boating state in the U.S. by any metric.  With warm weather most of the year, Florida has more than a million registered boats according to the National Marine Manufacturer’s Association.   This does not include the many, many thousands more unregistered vessels or transient vessels that pass through state waters every year.   Considering the sheer numbers of boats alone, it shouldn’t be surprising, and the statistics will tell you, more boats on the water means more boating accidents

     For anyone who owns a boat in Florida the magnitude of the accident
risk becomes apparent as soon as you reach the boat ramp for your first 4th of July weekend, Labor Day weekend or Memorial Day weekend.  On these busiest boating weekends of the year, boat ramps and waterways are packed.  On these heavy boating weekends to say the least, there is a broad spectrum of  competence of vessel operators ranging from true experts to first time operators.  With extreme differences in the competency of vessel operators anyone, even the most seasoned navigators, can easily find themselves in the midst of a bad event if they are in the wrong place, at the wrong time, with the wrong person.




     With the risk so apparent, the need for boat insurance  would seem obvious.  However, one of the most frequently asked questions we get when working on the purchase or sale of any vessel is "do I really need boat insurance?". 

YES!!!!!  

     Let me be clear.  Everyone who owns a boat needs to have boat insurance!

     Even though boat insurance is not required here in the state of Florida (like automobile insurance)  banks holding your boat loan require it; marinas storing your boat require it; and many boating events are now beginning to require proof of insurance for participation. And before you ask, no, your homeowners policy does not provide any meaningful insurance coverage for your boat.  For instance, homeowners policies do not contemplate coverage issues like salvage, wreck removal, or pollution liability.

     Here are just some of the main reasons every boat owner needs adequate insurance for their vessel:
  • Accidents.  With more than a million boats in Florida, and with operators having varying degrees of competence, accidents will happen.  Some are minor, but the truth is that many accidents every year cause serious injuries, and even death. Vessel insurance can off-set medical bills and other property damage.
  • Litigation.  Lawsuits arise in many different circumstances.  Passenger injuries, injuries to other boaters, collisions, salvage claims, storms, fire, etc., all can lead to litigation  Without vessel insurance you are left to fend for yourself in a lawsuit and you will undoubtedly spend more in one lawsuit than you would for years of boaters insurance.
  • Theft. Boat insurance can help cover the cost of replacing your boat if it, or the engine is ever stolen.
  • Property damage. Boat insurance can cover repairs and/or replacement if your boat is damaged in a storm, or by vandalism. 
  • Unknown events.  If your boat is moored at a dock slip, or sitting idly in a storage facility, there is still a chance your boat could be damaged by lightning or another boat crashing in to it or someone could be injured as the result of some freak accident when you are not around.  Boat insurance can protect you even if a loss occurs when you are not using the boat.
     Without insurance you face a terrible risk of losing your investment (ie. your boat) and perhaps a significant chunk of your other personal assets if you are involved in litigation resulting from an accident or other bad event.

     So how do you know you are buying the right insurance? Boat insurance policies are normally flexible and can be tailored to your needs to ensure you get the right policy at the right price.   The broadest policies available are all-risk policies.  These policies usually include coverage for losses due to specific perils such as fire or sinking or failed parts.  

     Liability only policies are normally much less expensive since they provide no coverage for damage to your boat, but usually only provide coverage for liability to others.  Liability only policies are frequently the best choice for vessels that are not worth that much.

     Agreed value policies give you the option to insure your boat for an agreed amount in the event of a total loss, while actual cash value policies do the same but generally provide a lower payout.

    No matter what type of policy you choose, be certain you understand what your boat insurance covers and what it doesn’t cover.  Does your policy cover your trailer? Your electronics? Your outboard motor? Towing AND salvage? (there is a BIG difference) Your fishing equipment? Your coolers? What are your navigational limits? Do you get a credit storing your vessel over the winter? Are you covered for anyone, including children, operating your vessel?

     At the end of the day the reasons for buying boat insurance are not that different from the reasons for buying homeowners insurance.  Yes, chances are good your house is not going to burn down, your valuables won’t be stolen in a robbery, your house won’t be washed away in a flood, but there’s still a chance something COULD happen.  The same principle applies to your boat.  Something COULD (and probably will) happen and when it does hopefully you will be calling your insurance company to file a claim, instead of calling our office to find out what you can do to protect yourself because you didn’t buy vessel insurance.