Litigation

Liability Under Dram Shop Act Requires “Visible Intoxication”

Written by Lindsay E. Raber, Esq.

The Appellate Court of Connecticut considered whether or not a trial court’s denial of a motion to set aside the verdict in a case involving the Dram Shop Act was an abuse of discretion, because a required element of the offense charged was not established by the plaintiff.

Case Background

In this case, a citizen and his friend were at a restaurant-bar where they were playing billiards. The citizen consumed five beers, two alcoholic shots, and a blackberry brandy within a four-hour period, but did not exhibit any physical signs of intoxication. Nonetheless, while drunk, he purchased an alcoholic beverage from the restaurant’s bartender. Subsequently, the citizen and his friend left the restaurant-bar and were involved in an accident, resulting in the friend’s death.

The estate of the friend (plaintiff) brought a wrongful death action against the owners of the restaurant (defendant), claiming liability under the Dram Shop Act, Connecticut General Statutes (CGS) § 30-102. A jury found in the plaintiff’s favor and awarded $4 million in damages, though the defendant sought reduction to the statutory $250,000, which the court granted. The defendant also filed a motion to set aside the verdict and a directed verdict, arguing, in part, that “no evidence was presented from which the jury reasonably could have concluded that [the citizen] was intoxicated” under CGS § 30-102. The motion was denied, and the defendant appealed, arguing that the trial court abused its discretion in denying the motion.

Proof of “Visible Intoxication” Required

CGS § 30-102 is the statutory mechanism through which a plaintiff may recover damages from one who sells alcohol to an intoxicated person, and such person subsequently causes an injury. For the plaintiff to prevail in such an action, he or she must prove that “there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another.” At issue on appeal in this case was whether or not the second element requires proof of “visible intoxication” or what amounts to per se intoxication.

The Appellate Court agreed that a showing of visible intoxication was required, and stated that for purposes of CGS § 30-102, “an individual must exhibit some type of physical symptomology in such a way that an observer could perceive that the individual was indeed under the influence of alcohol to some noticeable extent.” In addition, the plaintiff must present evidence that shows the subject in question was either visibly or perceivably intoxicated.

Appellate Court Ruling

In this case, the Appellate Court noted that while the evidence presented at trial may establish intoxication as it is used in our DUI law (CGS § 14-227a), it was insufficient to prove intoxication under CGS § 30-102. As the Court elaborated, the plaintiff did not present any evidence of visible intoxication – indeed, there was no evidence at all showing that the citizen “was exhibiting any visible or perceivable indications that he was intoxicated.” Therefore, the court abused its discretion in denying the motion to set aside the verdict, because based on the evidence presented, a jury could not have found the required element of “intoxicated person.” Therefore, the judgment was reversed and case remanded.

Should you have any questions, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Federal Court Does Not Vacate FINRA Arbitration Award Denying ERISA Claims

Stephen P. Finkelstein v. UBS Global Asset Management (US) Inc. and UBS Securities LLC, 2011 WL 3586437 (S.D.N.Y. Aug 9, 2011)

In a case before the Southern District of  New York, Stephen P. Finkelstein (“Finkelstein”) filed a petition to vacate part of a Financial Industry Regulatory Authority (“FINRA”) Arbitration Award dated October 20, 2010, pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 10. UBS Global Asset Management (US), Inc., and UBS Securities LLC, (collectively “UBS”) filed a cross-motion to confirm the arbitration award pursuant to the FAA, 9 U.S.C. § 9.  The court denied Finkelstein’s motion to vacate and granted UBS’s motion to confirm the arbitration award in their favor.

Case Background

The underlying dispute is based on UBS’s denial of Finkelstein’s claim for a special payment under the UBS severance pay plan, which is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132.  Finkelstein began his employment with UBS in 2002.  In April 2006, he was internally transferred to a hedge fund as a portfolio manager responsible for a variety of subprime securities.  Within a year of his transfer, the hedge fund suspended his trading authority due to losses of over $300 million in his positions.  A few months later, UBS closed the hedge fund based on its overall losses; hedge fund employees were either offered new jobs or terminated.  Finkelstein was terminated without cause in August 2007.

The UBS separation program contained a provision offering a special payment to employees who were terminated on or after October 1, but before the date on which bonuses are usually paid.  As part of the closure of the hedge fund, UBS adopted a supplemental program that amended the special payment provision to provide eligible employees with a special payment at the discretion of the hedge fund’s management, even though these employees were not terminated on or after October 1.

The written eligibility requirements of the supplemental program specified dates of employment and involuntary termination; the hedge fund’s management exercised its discretion to define the formula for calculating the amount of the special payment and to exclude employees who were responsible for substantial losses at the time of the hedge fund’s closure.  Therefore, despite having satisfied the written eligibility requirements of supplemental program, Finkelstein was offered a separation package that did not include a special payment.

Finkelstein’s Claims

Pursuant to the separation program’s grievance procedures, Finkelstein submitted a claim for benefits demanding a special payment that was equivalent to 25-percent of his 2006 bonus, which was in accordance with the formula determined by the hedge fund management.  Although he acknowledged the losses on his 2007 trading book, Finkelstein attempted to explain that greater than half the losing positions were purchased by his partner without his consent and that the remainder of the losses could be recovered over time.

The severance committee denied Finkelstein’s claim, stating that the hedge fund’s management had appropriately exercised its discretion in denying him a special payment.  Finkelstein requested a review of the severance committee’s denial of his claim, and was again denied his demand for a special payment.

In December 2008, Finkelstein filed a Statement of Claim with FINRA seeking an award of the special payment.  FINRA appointed a panel of three arbitrators to hear the matter and, in October 2010, entered an award in favor of UBS without any explanation or rationale.

Finkelstein filed a petition in federal district court to vacate the arbitration award on the following three grounds: (a) the arbitration panel decision was in “manifest disregard” of ERISA, 29 U.S.C. § 1145; (b) the arbitration award was procured through the fraudulent concealment of material information by UBS; and (c) the arbitrators refused to hear evidence pertinent and material to the controversy.

Basis of Manifest Disregard

Vacating an arbitration award on the basis of manifest disregard of the law requires the challenging party to demonstrate that the arbitrators clearly defied the law either by rejecting precedent or pronouncing a decision that strains credulity.  See Stolt–Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85, 92–93 (2d Cir.2008), reversed on other grounds, 130 S.Ct. 1758 (2010).

However, even if the arbitrators do not explain the reasons for their decision, the court will uphold the arbitration award “if a justifiable ground for the decision can be inferred from the record.”  Id. at 97. In his petition, Finkelstein contended that the FINRA arbitration panel manifestly disregarded ERISA, 29 U.S.C. § 1145, on four different grounds.  The most significant basis for his contention was that the arbitration panel should have rejected UBS’s unwritten, oral modification of the ERISA severance pay plan to exclude employees responsible for substantial losses from special payment eligibility.  Both the ERISA statute, 29 U.S.C § 1102(a)(1), and case law within the Second Circuit require that all amendments to employee benefit plans be in writing.

Court’s Ruling on Manifest Disregard

However, the written documents of the hedge fund supplemental program expressly conferred the hedge fund management with certain discretionary powers; therefore, the court determined that it was not erroneous for the arbitration panel to conclude that the unwritten rule excluding employees who incurred substantially losses was a permissible exercise of this discretionary authority, rather than an oral modification of the supplemental program.  Because the ERISA provision on oral modifications cited by Finkelstein was inapplicable, the arbitration panel had colorable justification to conclude that it was not violated.

Consequently, the court determined that Finkelstein failed to demonstrate manifest disregard of ERISA on these grounds. The court also found that each of the remaining challenged panel determinations was supported by a colorable justification.  Therefore, the court concluded that the arbitration award could not be vacated for manifest disregard of the ERISA statute.

Court’s Ruling on Fraud

Vacating an arbitration award on the basis of fraud under the FAA, 9 U.S.C. § 10(a)(1), requires the challenging party to produce clear and convincing evidence that there was fraud that could not have been discovered during the arbitration process and that such fraud is materially related to the award. Chimera Capital, L.P. v. Nisselson (In re MarketXT Holdings, Corp.), 428 B.R. 579, 590 (S.D.N.Y. 2010) (citing A.G. Edwards & Sons, Inc. v. McCollough. 967 F.2d 1401, 1404 (9th Cir. 1992) (per curiam).   Finkelstein alleged that UBS concealed material information relevant to the dispute.

However, the court determined that UBS could not have fraudulently concealed information that they had no obligation to disclose, and also determined that UBS did voluntarily disclose the challenged information in an accurate manner.  Therefore, the court concluded that the arbitration award could not be vacated on the basis of fraud under the FAA.

Court Ruling on Refusing to Hear Evidence

Vacating an arbitration award on the basis of refusing to hear evidence pertinent to the dispute, 9 U.S.C. § 10(a)(3), has been interpreted by courts to mean that an arbitration award will not be opened to evidentiary review except “where fundamental fairness is violated.”  Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir.1997) (quoting Bell Aerospace Co. Div. of Textron v. Local 516, 500 F.2d 921, 923 (1974)).

The arbitration panel denied Finkelstein’s request for production of evidence concerning the value of any parallel investments held by the UBS Investment Bank.  He contended this evidence was highly relevant because it would have negated UBS’s assertion that his trading activities sustained substantial losses.  It was within the arbitration panel’s broad discretion to determine that the requested materials would have been irrelevant and/or unduly burdensome for UBS to produce.

The court determined that the arbitration panel’s refusal to compel UBS to produce this evidence did not deny Finkelstein a “fundamentally fair” hearing because the scope of inquiry afforded him was sufficient to provide him with a reasonable opportunity to be heard and to enable the arbitration panel to make an informed decision.  Therefore, the court concluded that the arbitration award could not be vacated on the basis of refusing to hear evidence.

The court denied Finkelstein’s petition to vacate the FINRA arbitration award, and entered judgment to confirm the arbitration award in UBS’s favor.

Should you have any questions relating to FINRA, arbitration or employment issues, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County, Connecticut at 203-221-3100 or at JMaya@Mayalaw.com.

California Court Modifies FINRA Arbitration Award to Provide for a Setoff

UBS Financial Services, Inc. and Piper Jaffray & Co. v. Mark C. Riley, 2012 WL 1831720 (S.D. Calif. May 18, 2012)

In a case before the Southern District of California involving a setoff in a FINRA arbitration award, UBS Financial Services, et al, (“UBS”) petitioned to confirm, or in the alternative modify, a Financial Industry Regulatory Authority (“FINRA”) Arbitration Award issued September 2, 2011.  Mark Riley (“Riley”), a former USB employee, filed a reply.  The court granted UBS’s alternative motion to modify the award and awarded UBS pre and post judgment interest.  All other motions were denied.

Case Background

The underlying dispute in this case arose when Riley failed to satisfy his indebtedness on two promissory notes after he terminated his employment with UBS, which had acquired his previous employer, Piper Jaffray.  The two loans were received during Riley’s course of employment with Piper Jaffray and UBS.  Because submission to FINRA arbitration was included in Riley’s employment agreement with UBS, the firm initiated a FINRA arbitration claim against Riley to recover the outstanding balances, as well as interest and attorneys’ fees.   Riley filed a counterclaim against UBS and Piper Jaffray, alleging claims related to his employment with the firms.

FINRA appointed a panel of three arbitrators to hear the matter.  The panel issued an arbitration award in favor of UBS for $377,024.83, including principal, interest and attorneys’ fees.  The panel also held UBS and Piper Jaffray jointly and severally liable to Riley in the amount of $127,024.83.  One week after the award, UBS filed a motion with the arbitration panel requesting clarification of the award to provide for Riley’s award to be offset against the UBS award.

Debate about Setoff

The Director of Arbitration rejected the motion because it did not comply with the FINRA Code of Arbitration Procedure for Industry Disputes Rule 13905, which provides that parties may not submit documents to arbitrators in cases that have been closed except under limited circumstances.  Therefore, UBS petitioned the federal district court to confirm, or alternatively modify, the award with a setoff of the amount awarded to Riley against the larger amount awarded to UBS, and to enter a single judgment in favor of UBS in the net amount of $250,000, plus interest, attorneys’ fees and costs.

The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16, governs the role of federal courts in reviewing arbitration decisions and provides very limited grounds on which a federal court may correct, modify or vacate such decision.  “Under the statute, confirmation [by federal court] is required even in the face of erroneous findings of fact and misinterpretations of law.” Kyocera Corp. v. Prudential–Bache T Serv’s, Inc., 341 F.3d 987, 997 (9th Cir. 2003) (internal quotation marks and citation omitted)

Riley argued the award should be confirmed without setoff on three separate grounds: (1) the court does not have the authority to provide a setoff; (2) UBS and Piper Jaffray are jointly and severally liable so to allow an offset against the money awarded to UBS would deprive him of the ability to recover from Piper Jaffray; and (3) his counsel’s attorneys’ fee lien on his award takes priority over UBS’s right to a setoff.   He opposed modification of the award for the same reasons.

Section 11 of the FAA

The court denied UBS’s motion to confirm the arbitration award with a setoff because it was unable to find any authority in the Ninth Circuit to permit a setoff in the confirmation of an arbitration award.  However, section 11 of the FAA permits a federal court to modify or correct an award “as to effect the intent thereof and promote justice between the parties” under the following circumstances:

(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.

(b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted.

(c) Where the award is imperfect in matter of form not affecting the merits of the controversy.

Decision for Setoff

The court determined that allowing for a setoff in the instant case was consistent with the requirements of section 11(c).  The court was not required to reconsider the merits of the arbitration decision, and the modification did not affect the amount of damages awarded to either party.  Setoff only modified the form of the award to avoid the potentially unjust consequences of UBS paying Riley a substantial sum of money in a situation where there was a high likelihood that Riley would not pay UBS in return.  Finally, allowing Riley to pay just his net obligation would avoid “the absurdity of making A pay B when B owes A.” Studley v. Boylston Nat’l Bank of Boston, 229 U.S. 523, 528 (1913).

The court ordered the FINRA arbitration award be modified to a single judgment of $250,000 in favor of UBS.  It also awarded UBS prejudgment interest at the state interest rate of nine percent per annum on the sum of $250,000.00 from the date of the arbitration award until the judgment was entered in federal court, and post-judgment interest at the federal interest rate as provided for in 28 U.S.C. § 1961 from the entry of the judgment until the judgment award is paid in full.

Should you have any questions relating to FINRA, employment or arbitration issues, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County, Connecticut at 203-221-3100 or at JMaya@Mayalaw.com.

ESI OR “ELECTRONICALLY STORED INFORMATION”—THE HIDDEN LITIGATION TRIPWIRE

New York: (212) 682-5700 Connecticut: (203) 221-3100

When examining the impacts of ESI technology, we must understand that we live in a digital world.  So prevalent is “data” that we forget that we are surrounded by visual portrayals of streams of zeroes and ones.  We have computers at work as well as at home, and laptops, PDA’s, and “Blackberrys” to keep us connected to e-mail, voice mail, and text messages while we vacation or commute (and blur the distinction between the two).  It has been said that technology is a wonderful slave and a terrible master.

Technology may also present the least understood and a most dangerous trap for the unwary litigant—one that can lose a case before it is even begun.  The solution is a timely and thoughtful “litigation hold” letter, and this article will explain when one has to be sent, and what it should say.

Adoption and aftermath of the Federal Rules of Civil Procedure

            Over the years, the Federal and State Rules governing pretrial discovery have generally kept pace with societal changes so that discovery vehicles such as Requests for Production could be tailored to fit the myriad and unique circumstances that surround any case, and perform as designed.  Technological advances, however, have pulled far ahead of the rules, and Courts have been scrambling to catch up.  Thus began the evolution of discovery of “electronically stored information”, or “ESI.”

Court interpretation of the discovery rules has given lawyers and litigants guidance on how to uncover ESI, but they also impose draconian penalties for conduct that heretofore might have been countenanced by a well meaning and lenient jurist.  The purpose of this article is to warn business owners and their counsel of the unseen pitfalls of ESI, and ensure by means of a “litigation hold” letter that devastating sanctions are avoided.  Simply stated, a “litigation hold” letter commands a party (or client) to locate, segregate, and preserve documents and data that may be relevant to pending or threatened litigation.

Relevant court cases: Zubulake IV and Pension Committee

In 2003 and 2004, Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York, decided two in the series of the Zubulake v. UBS Warburg LLC cases and introduced a brave new world of ESI discovery.  In 2010, Judge Scheindlin decided Pension Committee of the University of Montreal Pension Plan v. Bank of America Securities, LLC, 2010 U.S. Dist. LEXIS 1839 and dispelled any doubt about the duty to preserve and produce ESI, and the penalties to be imposed for its breach.

One teaching of Pension Committee is that the rules articulated in Zubulake are now “well established” and lawyers and litigants ignore them at their peril.  Judge Scheindlin leaves no room for interpretation or debate:

“Possibly after October, 2003, when Zubulake IV was issued, and definitely after July, 2004, when the final relevant Zubulake opinion was issued, the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.” 2010 U.S. Dist. LEXIS at * 10.

The corollary teaching of Pension Committee is that if a party is currently in litigation or reasonably anticipates litigation, then such party in conjunction with its counsel must issue a timely and written litigation hold and supervise and oversee that hold diligently and in good faith, or face sanctions to include termination of the underlying case to its extreme prejudice.

Consequences of misconduct with respect to ESI

A party to litigation or a party that reasonably anticipates litigation (more on that amorphous concept later) has a duty to preserve, collect, review and/or produce relevant evidence.  In failing to discharge that duty with respect to ESI, the party’s conduct may amount to negligence, gross negligence (a failure to exercise even that care which a careless person would use), or willful and bad faith misconduct (an intentional act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow).  In each instance, available sanctions ratchet up accordingly.

With regard to the duty to preserve, post-Zubulake, the failure to issue a timely, written litigation hold will likely rise to the level of gross negligence.  With respect to the duty to collect, the failure to collect paper or electronic records from “key players” (another “fuzzy” concept that may even include former employees) constitutes gross negligence or willfulness, in contradistinction to failing to collect records from all employees, which may be viewed as mere negligence and carry a lesser penalty.  As noted by Judge Scheindlin, “[e]ach case will turn on its own facts and the varieties of efforts and failures is [sic] infinite.”  Id. At * 12-13.

So what is a business owner/HR executive/general counsel to do?

The first step is to understand when the ESI duty to preserve, collect, etc. attaches.  Where a party sues or is sued, that particular point in time is clearly defined.  But when must a party “reasonably anticipate” litigation?  If one or two employees get a mere whiff of threatened litigation, that does not impose an “all hands on deck” company-wide duty to preserve.

If those same employees, however, document their concerns with an identifiable plaintiff and targeted defendant, then the duty to preserve would arise well in advance of the actual filing of the lawsuit.  Often, it is middle-management that first sees litigation storm clouds on the horizon, and they need to be conditioned to alert senior management and outside counsel to threatened litigation.

Once the alarm is sounded, the litigation hold letter must be carefully drafted and quickly disseminated.  Each situation is different, and this is not an area where a generic, “one size fits all” form letter can be sent.  Management and counsel should collaborate on ensuring company-wide compliance and the letter should emanate from the company’s upper echelons (e.g., CEO, COO, and CIO).  Implementation and supervision of the litigation hold cannot be delegated away and senior management must remain involved and responsible throughout the process.

In the words of Judge Scheindlin, “[i]n short, it is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information.  Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.”  Zubulake V, 229 F.R.D. at 432.

Conclusion

The litigation hold letter is both a sword and a shield.  It is a recognized and ubiquitous “terrain feature” on any litigation landscape and litigants and lawyers are now on notice that they are expected to be familiar with the evolving law and conform fully to its requirements.  Every case is different, however, and must be analyzed and evaluated on its own peculiar facts and circumstances.  If you have any questions relating to ESI in general, or litigation hold letters, in particular, please contact Maya Murphy by phone at (203) 221-3100.

Is Everything That Happens in Front of a Judge on the Record in Connecticut?

All court proceedings in front of a judge are recorded by a court reporter.  If you are in need of a copy of the record from the day you were in court, you have the option to contact the court reporter to get a copy of the transcript.  You can do so by contacting the court with your docket number, the date of your appearance, and the name of the judge.  If you are having custody issues, they may not be resolved simply by obtaining a copy of your court transcript.  It may be wise to consult with an experienced family law attorney who can educate you on all of your options and tell you the best way to proceed for the benefit of you and your child.

If you have any questions regarding family law in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

Legislative Intent Key to Whether Punishments Violate Double Jeopardy Protections

Under the Fifth Amendment to the U.S. Constitution, criminal defendants cannot receive two punishments for two crimes, which he asserts to be a single crime, arising from the same transaction and prosecuted in a single trial. To be entitled to this protection, a criminal defendant must show that the charges arise from the same act or transaction and that the charged crimes are, in fact, the same offense. However, the protection against double jeopardy is not absolute where the legislature intended cumulative punishment under two statutes, and this intent is articulated either on the face of the statute or through legislative history.

As an example of the interaction between these principles of law, consider a recent appellate case where a defendant was charged with both criminal possession of a firearm and criminal violation of a protective order. These charges arose out of a single transaction in Shelton on or about August 10, 2005, when defendant possessed a firearm despite knowing that he was subject to a protective order of the court. The defendant was charged and convicted under General Statutes §§ 53a-217(a)(3)(A) and 53a-223(a). On appeal, the defendant argued that these crimes constituted the same offense, since one could not have happened without having committed the other. As such, being convicted of and sentenced for both violated double jeopardy.

The Appellate Court credited the defendant’s argument, referencing a case where a defendant could not have violated his protective order without also committing the crime of trespass. However, the Court acknowledged that double jeopardy does not limit whether or not a legislature may split a single transaction into separate crimes, allowing the prosecution multiple avenues of charging in a single proceeding. In essence, multiple punishments are possible where there is one transaction.

The Court delved into the language of each statute and found that neither contained prohibitions on multiple punishments for the same offense. In fact, neither statute made reference to the other. At this point, the Court found the legislative history of § 53a-223 to be rather telling. Representative Michael P. Lawlor explained, “Once you’re subject to a restraining order or a protective order, you’re not permitted to have a firearm. In fact, you’re obligated to turn in your firearm within a relatively short period of time.” When asked what would happen in a case where a defendant violated both a protective order and another criminal statute, Representative Lawlor said that both statutes would apply.

The Court found that the defendant’s conviction for violating both §§ 53a-217(a)(3)(A) and 53a-223(a) was consistent with legislative intent to provide cumulative punishments for the single act of possessing a firearm in violation of a protective order. Therefore, the judgment was affirmed.

Written by Lindsay E. Raber, Esq.

To speak with a criminal attorney call us at (203) 221-3100 for a free consultation or reach out to Managing Partner Joesph Maya via email at jmaya@mayalaw.com.

Wrongful Death Suit: Texting While Driving Fatality

The family of a Utah boy who was killed in an alleged texting-while-driving accident is suing the driver who hit him for wrongful death. The accused driver, Jeffery Lloyd Bascom, is also facing criminal charges under the state’s distracted driving law.

Thomas LaVelle Clark, 15, was walking along a semi-rural road on the outskirts of the town of Vernal when he was hit from behind by a pickup driven by Bascom, 28. Clark was thrown 40 feet over a ditch and landed near a cow pasture, according to local news reports.

Bascom admitted to police on the scene that he was texting at the time of the accident. Utah makes homicide involving the use of a hand-held wireless communication device while driving a second degree felony, which carries a prison term of up to 15 years.

The Clark accident is far from an isolated incident, unfortunately. According to the National Safety Council, there have already been nearly 100,000 vehicle crashes in the country this year involving cell phone use, or one every 24 seconds. And the National Highway Traffic Safety Association reports that around 3,000 people were killed in distracted driving accidents in 2010. The Association further notes that cell phone users are 23 times more likely to be involved in a crash.

States are legislating to catch up with technology, but laws on phone use while driving vary across the country. Ten states plus Washington, D.C., ban handheld phone use by drivers across the board. An additional 29 ban text messaging only.

A Strong Stance

Utah’s distracted driving law was updated last year to ban any cell phone use while driving, with the exception of making a call or using GPS. Violators can be charged with a misdemeanor, with heightened penalties if there is an injury involved. A felony, like in Bascom’s situation, comes into play when there is loss of life.

“Utah has taken a strong stance on this growing problem,” says Anthony C. McMullin of the McMullin Legal Group in St. George, Utah. “Utah’s 2012 amended texting law makes it much easier for prosecutors to successfully charge and convict violators.”

Plaintiffs could potentially bring a wrongful death or personal injury lawsuit regardless of the criminal laws surrounding an accident, but the existence of specific language for distracted driving can make it easier for attorneys to show a driver was at fault. “Utah’s newly amended texting law also has civil implications,” McMullin says. “The new law heightens the responsibility and duty of all drivers when they get behind the wheel. A driver’s duties include keeping one’s vehicle under control, maintaining a proper lookout and obeying the motor vehicle laws of the State of Utah.”

Texting drivers leave a trail of evidence behind them. Police can check a phone at the scene or, barring that, investigators or attorneys can subpoena phone records from the carrier to find out if a driver was sending any messages at the time of an accident, making it likely that they will be held accountable for their actions.

“If a person is texting or otherwise operating a cell phone while driving and that usage results in a motor vehicle accident, it is typically very easy to establish a breach of the driver’s duties,” says the attorney. “Bottom line is if a driver causes an accident while texting, they may not only be charged criminally but will almost certainly be civilly responsible for any injured parties damages.”

By: Aaron Kase, Laywers.com

At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County. If you have any questions relating to a personal injury claim or wrongful death suit or would like to schedule a free consultation, please contact our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com to get in touch with our Managing Partner, Joseph Maya.

Court Denies Mother’s Request to Relocate with Minor Child

In a recent post judgment divorce action originating in the Superior Court for the Judicial District of Hartford, Judge Prestley denied a mother’s request to relocate to France with the parties’ children.  The parties were married in 1981 and after twenty-six years, sought and obtained a divorce in 2008.  During their marriage, the parties had three children, born in 1988, 1992 and 1998.  The youngest child was the only minor at the time of the post judgment action.

In August, 2009, after reconnecting with a high school friend who was living in France, the mother informed the father that she was going to make two-month-trips overseas, returning home for two weeks in between.  Sometime later, she informed the father that she was engaged to the high school friend, and planned to move to France with the children permanently.  The father initially agreed to the plan, but then changed his mind.  In June, 2010, the mother filed a Motion to Modify Visitation requesting permission to relocate with the children.  In October, 2010, the father agreed to the move, but only for the 2010-2011 school year.  As the parties were unable to reach an agreement, a full hearing was held in January, 2011.

In its decision the Court noted that, pursuant to Connecticut General Statutes §46b-56d(a), the party wishing to relocate must demonstrate that the relocation is for a legitimate purpose, and that the proposed relocation is reasonable in light of such purpose. In this particular case the Court found the plaintiff had no legitimate reason to justify the proposed move. The mother testified that although she could not work legally in France, she would continue to work with her clients and structure workshops in her field. The plaintiff testified she was going to teach one seminar in March 2011 in the state of Florida (while temporarily living in France), and that she taught another workshop for which she earned $500.00.  The Court found that although the plaintiff expressed her opinion that there were more opportunities for her in France, she provided no details to support that claim, and, thus, could not demonstrate that furthering her career opportunities was a legitimate reason for the move.

The plaintiff also contended that relocating to France would provide a cultural opportunity to the parties’ minor child. She testified that the child was a speed-skater, that he had a new coach in France and that skating was more important for him than spending time with the father, from whom he needed to heal.  She further suggested that the child had been unhappy and stressed since the divorce, and that contact between the son and his father was not healthy for the child.

With respect to the child’s needs, the Court found that although there was credible evidence that verbal altercations occurred between the mother and the father in the presence of the children, and that the child was upset about his father’s objections to his moving to France, the evidence also established that the defendant participated in his children’s lives to the extent that he was able given his work schedule.  The Court further found that the father’s relationship with his son was good until the pending issues arose, that the child was involved in speed-skating in Connecticut prior to the move to France, and that skating opportunities were still available to him here.

The Court ultimately held that it could not find any legitimate purpose, financial or otherwise, to justify the proposed relocation.  It noted that although time spent in a foreign country may provide some cultural advantages, those potential advantages were overshadowed by the irreparable harm the child would likely suffer as his relationship with his father was continuing to deteriorate with distance.  The Court essentially held that repairing and fostering the child’s relationship with his father was more important that any cultural advantages he may have gained by moving.

Should you have any questions about divorce in Connecticut or minor relocation cases within Divorce Court, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

Connecticut Appellate Court finds that Misappropriated Funds should not be part of Probate Estate

Connecticut Appellate Court finds that Misappropriated Funds should not be part of Probate Estate
Przekopski v. Przekop, 124 Conn. App. 238, 4 A. 3d 844 (2010)

The defendants, a sister, individually and as the executrix of her father’s estate, appealed from the judgment of the Superior Court, which upon a de novo appeal of a Probate Court order, denied a motion for rectification or for a corrected judgment, and ordered that the bank accounts misappropriated by the plaintiff brother be returned to the father’s estate for distribution.

The Appellate Court concluded that the Probate Court ordered the proper remedy and that it was improper for the Superior Court to order the transfer of the misappropriated funds from the plaintiff to the estate, instead of directly to the defendant, individually. The decedent used the survivorship accounts as a method of estate planning and he intended for the accounts to pass immediately to the defendant, individually, upon his death and not to be the subject of probate.

The Appellate Court recognized the decedent’s intent and wanted to ensure that the plaintiff did not profit from his abuse of the power of attorney that he utilized to substitute his name for the defendant’s individual name on certain bank accounts containing the funds.  The plaintiff did not engage in fair dealing in transferring certain bank accounts to himself under the power of attorney and abused his position of trust. The power of attorney did not authorize the plaintiff to change the name of the survivor on the accounts.

Because the plaintiff was a beneficiary under his father’s will and stood to inherit some of the funds if they were distributed pursuant to the will, it was error for the Superior Court to order the return of the funds to the estate.  The Appellate Court reversed the judgment only as to the order that the plaintiff transfer to the decedent’s estate all of the misappropriated funds.  The case was remanded with direction to order those funds, with the exception of the sum of $ 11,000, returned to the defendant, individually.

Should you have any questions relating to wills, trusts, estates or probate issues generally, please feel free to contact Joseph Maya at Maya Murphy, P.C. today at (203) 221-3100 or by email at JMaya@Mayalaw.com, to schedule a free initial consultation.

Toxicology Report Suppressed in DUI Case Because Warrantless Search Exceptions Did Not Apply

In this criminal law matter, a Superior Court of Connecticut granted a defendant’s motion to suppress evidence, because the State did not show exigent circumstances allowing the warrantless seizure.

This case arose from an incident that occurred on August 15, 2003. The defendant was involved in an automobile accident, resulting in the death of the other driver. He was transported to a nearby hospital where, without a warrant, police requested that his blood be drawn. One of the officers unaware of this order was informed of that the blood had been drawn, so he elected to not perform the field sobriety and chemical alcohol tests. Five days later, police applied for and was granted a warrant for the blood toxicology report. The defendant was charged with operating a motor vehicle while under the influence (OMVUI), in violation of Connecticut General Statutes (CGS) § 14-227a(a), and second-degree manslaughter with a motor vehicle, among several other counts. On March 8, 2004, the defendant submitted a motion to suppress the toxicology report, arguing that they were obtained in violation of the search and seizure protections of the state and federal constitutions.

Under state and federal law, individuals are protected against unreasonable searches and seizures of their persons, houses, papers, and effects. The “[c]ompulsory administration of a blood test” clearly constitutes a search and seizure of one’s person. If a search is conducted without a warrant evidencing probable cause, it is per se unreasonable, and evidence derived from this illegal search will be excluded unless one of a “few specifically established and well-delineated exceptions” applies. Two such exceptions to the exclusionary rule are inevitable discovery and exigent circumstances.

The inevitable discovery exception will thwart suppression of evidence if the State can show, by the preponderance of the evidence (more likely than not), that through lawful means the evidence would have been discovered anyway. Officers must have been actively pursuing such means before the constitutional violation in question occurred. In this case, the State argued that this exception applied because had the officer not been told the blood was drawn, he would have proceeded with the various OMVUI-related tests. Therefore, the State would have inevitably discovered the defendant’s blood alcohol content (BAC). However, the Superior Court was not persuaded, because the State assumed that the defendant would have consented to the alcohol chemical tests. Under CGS § 14-227b, a person is free to refuse the test, though he will face license suspension for doing so. As such, the police could not presume that this procedure would inevitably lead them to discovery of the defendant’s BAC level.

Exigent circumstances doctrine applies where police officers, who have requisite probable cause, do not have time to get a warrant. They must act swiftly to effectuate an arrest, search, or seizure, to avoid, for example, the destruction of evidence. The State bears the burden to point to specific and articulable facts that gave rise to the exigent circumstances. In this case, the State argued that if they did not order that the defendant’s blood be taken, they would have lost evidence of his BAC level. However, the Superior Court noted that the record was devoid of any facts to support this proposition. Therefore, because neither exception applied to the facts of this case, the Superior Court granted the defendant’s motion to suppress.

Written by Lindsay E. Raber, Esq.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.