Posts tagged with "damages"

Parents Vindicate Son, Win $11 Million from Drunk Driver

According to the Center for Disease Control & Prevention, almost 30 people in the US die every day in motor vehicle crashes involving alcohol-impaired drivers. That’s one death every 48 minutes. All of these deaths are tragic, no doubt. But some are downright heartbreaking – and infuriating.

A Senseless Death

On December 13, 2007, 27-year-old David Hudson of Johnson City, Tennessee, finished up work at a local sandwich shop he co-owned with a friend. He then went shopping for bicycles to give as Christmas presents to underprivileged children. An avid sportsman, he then went for a workout before meeting a friend and his brother for dinner.

After dinner, he met up with other friends at a local nightclub. Just another day in the life, right? Unfortunately, he left the club because he forgot something in his car. It was about 11 PM. He never returned to the club. Instead, as he crossed the street from the parking lot, he was hit by a car driven by 57-year-old David Wilcox.

Hudson was hit at an angle from behind on the back of his right knee. According to Albert J. harp, the attorney who was hired by Hudson’s parents, Wilcox was driving at about 60 MPH. “Hudson sustained non-fatal injuries in the initial impact,” explains Mr. Harb, but because of the impact, his “body was projected up in the air, into the windshield, over the top of the car, and 90 feet down the road.” That’s where he struck the pavement and sustained fatal head injuries.

Hudson died about 45 minutes after arriving at the hospital.

Believe it or not, Wilcox had four prior DUI convictions before hitting Hudson. Later that night, Wilcox underwent blood tests, which showed he had a blood alcohol content (BAC) of 0.15 – well above the national legal BAC limit of .08. There’s no question this was a DUI/DWI incident.

On top of that, police investigators said:

  • Wilcox’s headlights were off, which is probably why Hudson didn’t see the car and thought it was safe to cross the street
  • Wilcox didn’t hit his breaks before the collision, because if he had, the impact area would have been lower on Hudson’s leg

To add insult to injury, almost immediately after the collision, and at all times after it, Wilcox claimed Hudson “walked out in front of him,” and it was Hudson’s negligence, not Wilcox’s drunk driving, that caused Hudson’s death.

Two Juries Don’t Believe Wilcox

At the age of 61, a jury convicted Wilcox of vehicular homicide by reckless conduct in December 2010, even though he could have been charged with a DUI-related crime. Earlier this year, a judge sentenced Wilcox to five years in prison. Also, his driver’s license is suspended for 10 years, and he must repay Hudson’s parents for the costs of his funeral and burial.

Not long after Hudson’s death, his parents, Larry and Sandy Hudson filed a wrongful death suit against Wilcox to make it clear that their son was not to blame, as Wilcox claimed. According to Mr. Harb, they wanted to send a “clear message to the community that driving under the influence of an intoxicant is not and shall not be tolerated.” They sued for $2 million in punitive damages – damages meant to punish Wilcox and make him an example for others – and $1 million in compensatory damages to pay for items like Hudson’s medical costs.

A jury awarded the Hudsons over $11 million – about $6 million in compensatory damages and $5 million in punitive damages in November 2011. It only took the jury a few hours to reach a decision and place the blame for Hudson’s death squarely and solely on Wilcox’s shoulders.

A “Hollow” Win?

Like most people, Wilcox simply doesn’t have $11 million in the bank or buried in his backyard. According to him, he doesn’t own any property, has about $100 in the bank, and doesn’t have a job. In legalese, he’s judgment proof– he has a bill to pay but no way to pay it. So, the jury verdict might as well be for $0. The Hudsons probably will never get a dime from Wilcox, leaving some to say they won a hollow or meaningless victory. Even the parents admit the jury’s verdict can’t fill the void left by their son’s death.

But think of it this way. First, for at least the next 18 months (that’s when Wilcox is eligible for parole), the general public is safe from Wilcox and his habitual drunk driving. Second, like most wrongful death lawsuits, the parents’ suit was never about money. It was about clearing their son’s name – mission accomplished there! “The jury found that Wilcox was 100 percent at fault in the accident,” and that Hudson was zero percent at fault, explains Mr. Harb.

Also, the suit was about setting an example so future tragedies are avoided. Mr. Harb explains that the “Hudsons hope and pray that the pursuit of their lawsuit against David Wilcox will prevent someone else from having their child killed by a drunk driver.” Time will only tell if the Hudsons succeeded here, but we can hope against hope with them that someone decides to call a cab or sleep it off before getting behind the wheel while impaired by drugs or alcohol.

By: David Baarlaer

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 motor vehicular accident, drunk driving charges, wrongful death claim, or personal injury claim 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 

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Court Grants Combination of Equitable & Legal Relief for Breach of Non-Compete Agreement

In Party Time Deli, Inc. v. Neylan, 2001 Conn. Super. LEXIS 2411, Mr. Michael Neylan and Mr. Robert Goldkopf entered into an agreement on November 29, 1996, wherein Mr. Neylan agreed to purchase Party Time Deli, Inc. for $110,000.00 in addition to executing a promissory note on December 1, 1996, for the amount of $35,000.00 as consideration for Mr. Goldkopf consenting to a non-compete agreement.  The restrictive covenant identified Mr. Goldkopf as the party “primarily responsible for the day to day operation of the business known as Party Time Deli, Inc.” and prohibited him from directly or indirectly engaging in a delicatessen-type business within the City of Stamford for three (3) years following the date of closing for Mr. Neylan’s purchase of the company.  The $35,000.00 promissory note served as consideration for the covenant not to compete and was to be paid over a period of four (4) years.

Mr. Neylan failed to deliver the full amount of the promissory note to Mr. Goldkopf because he asserted that Mr. Goldkopf violated the terms of the non-compete agreement by operating the concession stand at the Stamford Yacht Club during the summer months of 1998.  Mr. Goldkopf contended that his actions did not violate the agreements between the parties because they did not specifically state whether the Stamford Yacht Club concession was covered by the covenant’s prohibitions.  He further argued that he was owed the balance of the promissory note, valued at $18,903.94 at the time of trial.  Mr. Goldkopf sued Mr. Neylan to recover the balance of the promissory note and Mr. Neyland submitted a counterclaim for lost profits associated with Mr. Goldkopf’s alleged breach of the non-compete agreement.

The court concluded that Mr. Goldkopf had indeed violated the terms of the covenant not to compete when he operated the Stamford Yacht Club concession stand during the summer of 1998 and that Mr. Neylan was entitled to the enforcement of the agreement’s terms.  While the court decided that Mr. Neylan was required to pay the balance of the promissory note that served as consideration for the non-compete agreement, that amount could be offset by the amount of profits from Mr. Goldkopf’s activities from the summer of 1998.  The court determined that Mr. Goldkopf’s unlawful activities resulted in a $25,000.00 lost profit suffered by Mr. Neylan, the amount that offset the balance of the promissory notes.  Based on the claim and counterclaim of the dispute, the court concluded that Mr. Goldkopf owed Mr. Neylan $6,096.06, an amount calculated by putting the $18,903.94 balance on the promissory note against the $25,000.00 lost profits associated with unlawful activities.

While the typical relief for a case involving an alleged breach of a non-compete agreement is an injunction (equitable relief), this case is an example where the court exercised its authority to grant both legal and equitable relief.  The court ordered the enforcement of the non-compete agreement’s provisions and also awarded damages due to moneys associated with the agreement’s consideration and profits generated from activities that violated the agreement’s terms.

The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment and corporate law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County.  If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

Court Awards Damages for Breach of Non-Compete Agreement

Court Awards Damages for Breach of Non-Compete Agreement
Van Dyck Printing Co. v. DiNicola, 43 Conn. Supp. 191

Mr. Anthony DiNicola worked for Van Dyck Printing Company as a sales representative from March 11, 1969 to April 1987. Mr. Leonard Drabkin, Van Dyck’s president, who had known Mr. DiNicola from Columbia Printing Company where Mr. DiNicola had worked for thirteen years, hired him. Mr. DiNicola received as wages a car allowance, $150.00 per week draw on his commissions pay, and commissions for sales such that he received at least 7% on the first $100,000 of sales and a higher percentage on sales beyond $100,000. It was not until a month into working that Van Dyck presented Mr. DiNicola with an employment agreement that the parties both signed. The employment agreement contained the finalized commission rate schedule that would apply to Mr. DiNicola’s employment with Van Dyck. The agreement also contained a covenant not to compete that prohibited him from providing services to Van Dyck’s customers while working for a company that provided services in “any way similar to the type of business conducted by Employer [Van Dyck] at the time of termination of this agreement” for a period of twelve months. The restrictive covenant further stipulated that the agreement would become enforceable by injunction for an addition twelve months (extending the total duration to twenty-four months) if there was evidence of a breach.
Mr. DiNicola voluntarily terminated his employment with Van Dyck in April 1987 and immediately began to work for Image Development, Inc., a new company he formed with a second former Van Dyck employee. He owned 50% of the shares in the company until he sold them in 1989 to his partner. Van Dyck sued Mr. DiNicola for breach of the non-compete agreement and sought damages since injunctive relief was moot due to the expiration of the time period for enforcement by injunction. Mr. DiNicola argued that the agreement was not enforceable and that Van Dyck was not entitled to any damages because the agreement lacked consideration. He further argued that Van Dyck breached the employment contract during his employment by “unilaterally changing the terms to suit itself”. The Superior Court in New Haven held that the non-compete agreement was enforceable and granted Van Dyck’s request for relief in the form of damages.
As a general contract principle, past consideration cannot be used to legitimate an agreement between an employer and employee once the employee has already commenced employment. Mr. DiNicola asserted that there was not any new form of consideration when he signed the non-compete agreement that would make its provisions binding on him. The court rejected this contention and found that there was indeed new consideration for the non-compete agreement in the form of the finalized commission rate schedule that had previously not existed. When Mr. DiNicola began with employment with Van Dyck not all of the precise employment provisions were finalized between the parties. It was the employment contract and non-compete agreement that contained the finalized employment details and resolved any existing questions or issues.
The court likewise rejected Mr. DiNicola’s claim that Van Dyck had invalidated the non-compete agreement when it unilaterally changed its provisions to overwhelmingly favor its interests over those of him. He argued that the company had repeatedly changed the method used to calculate his commission payments. The employment agreement did not specify a method to be used to calculate Mr. DiNicola’s payments under the commission rate schedule and as such, any change in method would not constitute a breach of Van Dyck’s obligations under the agreement.
The court recognized that the period allowing injunctive relief had expired but granted Van Dyck’s request for damages. Damages, according to the court, were calculated and awarded to reflect the loss suffered by the enforcing party (Van Dyck) in relation to Mr. DiNicola’s breach of the non-compete agreement. The court calculated that Van Dyck lost $169,000.69 in sales in direct connection to Mr. DiNicola’s breach and applied a 35% company profitability rate, a statistic presented during Mr. DiNicola’s testimony. This meant a total damages award of $59,151.29 for Van Dyck Printing Company.
If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com

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Court Awards Damages for Breach of Non-Compete Agreement

Court Awards Damages for Breach of Non-Compete Agreement
Van Dyck Printing Co. v. DiNicola, 43 Conn. Supp. 191

Mr. Anthony DiNicola worked for Van Dyck Printing Company as a sales representative from March 11, 1969 to April 1987. Mr. Leonard Drabkin, Van Dyck’s president, who had known Mr. DiNicola from Columbia Printing Company where Mr. DiNicola had worked for thirteen years, hired him. Mr. DiNicola received as wages a car allowance, $150.00 per week draw on his commissions pay, and commissions for sales such that he received at least 7% on the first $100,000 of sales and a higher percentage on sales beyond $100,000. It was not until a month into working that Van Dyck presented Mr. DiNicola with an employment agreement that the parties both signed. The employment agreement contained the finalized commission rate schedule that would apply to Mr. DiNicola’s employment with Van Dyck. The agreement also contained a covenant not to compete that prohibited him from providing services to Van Dyck’s customers while working for a company that provided services in “any way similar to the type of business conducted by Employer [Van Dyck] at the time of termination of this agreement” for a period of twelve months. The restrictive covenant further stipulated that the agreement would become enforceable by injunction for an addition twelve months (extending the total duration to twenty-four months) if there was evidence of a breach.
Mr. DiNicola voluntarily terminated his employment with Van Dyck in April 1987 and immediately began to work for Image Development, Inc., a new company he formed with a second former Van Dyck employee. He owned 50% of the shares in the company until he sold them in 1989 to his partner. Van Dyck sued Mr. DiNicola for breach of the non-compete agreement and sought damages since injunctive relief was moot due to the expiration of the time period for enforcement by injunction. Mr. DiNicola argued that the agreement was not enforceable and that Van Dyck was not entitled to any damages because the agreement lacked consideration. He further argued that Van Dyck breached the employment contract during his employment by “unilaterally changing the terms to suit itself”. The Superior Court in New Haven held that the non-compete agreement was enforceable and granted Van Dyck’s request for relief in the form of damages.
As a general contract principle, past consideration cannot be used to legitimate an agreement between an employer and employee once the employee has already commenced employment. Mr. DiNicola asserted that there was not any new form of consideration when he signed the non-compete agreement that would make its provisions binding on him. The court rejected this contention and found that there was indeed new consideration for the non-compete agreement in the form of the finalized commission rate schedule that had previously not existed. When Mr. DiNicola began with employment with Van Dyck not all of the precise employment provisions were finalized between the parties. It was the employment contract and non-compete agreement that contained the finalized employment details and resolved any existing questions or issues.
The court likewise rejected Mr. DiNicola’s claim that Van Dyck had invalidated the non-compete agreement when it unilaterally changed its provisions to overwhelmingly favor its interests over those of him. He argued that the company had repeatedly changed the method used to calculate his commission payments. The employment agreement did not specify a method to be used to calculate Mr. DiNicola’s payments under the commission rate schedule and as such, any change in method would not constitute a breach of Van Dyck’s obligations under the agreement.
The court recognized that the period allowing injunctive relief had expired but granted Van Dyck’s request for damages. Damages, according to the court, were calculated and awarded to reflect the loss suffered by the enforcing party (Van Dyck) in relation to Mr. DiNicola’s breach of the non-compete agreement. The court calculated that Van Dyck lost $169,000.69 in sales in direct connection to Mr. DiNicola’s breach and applied a 35% company profitability rate, a statistic presented during Mr. DiNicola’s testimony. This meant a total damages award of $59,151.29 for Van Dyck Printing Company.
If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com

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Employee Files Retaliatory Discrimination Suit Against Yale University

A Yale employee filed a retaliatory discrimination suit against Yale University last week, in which she alleged that after Yale hired her in 1999 as a “security education coordinator” to ensure the university’s compliance with Title IX, which is the federal law that prohibits sex discrimination in education, the university ignored her solutions, responded with indifference, and cut her pay.  Ultimately, Susan Burhans alleged that Yale University made it impossible to do her job, which was to “develop campus safety programs and strategies to ensure Yale’s compliance with Title IX and related laws,” according to the complaint.

Burhans stated that throughout the tenure of her employment, she brought to the attention of school administrators concerns about Yale’s “non-compliance with the Title IX and related laws.”  In April 2011, sixteen students filed a complaint alleging that the university had allowed a hostile sexual environment to persist on campus. According to Burhans’ complaint, “Yale responded to Ms. Burhans’ concerns with indifference, hostility and retaliation in many forms including job termination, initially in March 2010, despite ten years of service with excellent performance evaluations.”  Though Burhans was re-hired as a part-time, contract employee, the complaint alleges that she had no authority to oversee compliance with Title IX in this capacity, and was ultimately terminated, effective November 2012.  The action seeks at least $10 million in damages.

According to the United States Supreme Court, “retaliation against individuals because they complain of sex discrimination is ‘intentional conduct that violates the clear terms of [Title IX].’”[1] To properly allege a retaliatory discrimination case under Title IX, a plaintiff must demonstrate: (1) protected activity by the plaintiff; (2) knowledge by the defendant of the protected activity; (3) adverse school-related action; and (4) a causal connection between the protected activity and the adverse action.[2] Once a plaintiff has established those four elements, the burden shifts to the defendant “to articulate a legitimate, non-discriminatory reason for its actions.”[3]

Though Yale has yet to officially respond, a university spokesman stated in an email that the lawsuit is “baseless.”[4]

If you are faced with discrimination in the workplace, whether it be gender, sex, religious, or ethnicity based, you should consult with an employment attorney.  The attorneys at Maya Murphy, have represented employees in the Fairfield County region and are knowledgeable and experienced in the employment field.  Contact Joseph C. Maya, Esq., at 203-221-3100, or at JMaya@mayalaw.com.


[1] Papelino v. Albany College of Pharm. of Union Univ., 633 F.3d 81, 91 (2d Cir. 2011); quoting Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005).

[2] Papelino, at 91.

[3] Id.

[4] http://www.yaledailynews.com/news/2012/oct/15/former-employee-files-title-ix-retaliation-suit/

 

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The Enforceability of Liquidated Damages Provisions in Non-Compete Agreements

A non-compete clause, or restrictive covenant, is a standard feature of many employment contracts.  Employers seek to protect their trade secrets and proprietary information by ensuring that employees who leave their employ are unable to compete with them for a reasonable time and within a reasonable geographic distance.  Connecticut uses a five-prong test to determine the enforceability of a non-compete agreement, examining (i) the reasonableness of the time restriction, (ii) the reasonableness of the geographic restriction, (iii) the degree of protection afforded to the employer, (iv) whether it unnecessarily restricts the employee’s ability to pursue his career, and (v) the degree to which it interferes with the interests of the public.  The employment attorneys at Maya Murphy, P.C. have extensive experience in employment contracts and specifically, with non-compete agreements.  Before signing away your rights, you should consult with an advocate attorney who can make sure that you won’t be prevented from earning your professional livelihood.

Issues arise where a restrictive covenant contract provision provides for a fixed sum of damages, sometimes in the form of liquidated damages. Liquidated damages refers to a fixed sum of money agreed upon by the contracting parties during the formation of the contract.  Whether or not a liquidated damages provision will be enforced depends on whether any damage has actually been sustained.[1] Therefore, where a court finds that no damage has been sustained by a party, a liquidated damages clause will not be enforced.[2] Moreover, if the court determines that payment of the liquidated damages would represent a windfall provision, the clause will not be enforced.[3] In Connecticut, courts employ a three-pronged test to evaluate whether a liquidated damages provision is an unenforceable penalty, or windfall.  Such a provision will be deemed unenforceable if: (i) the damage which was to be expected as a result of a breach of the contract was uncertain in amount or difficult to prove; (ii) there was an intent on the part of the parties to liquidate damages in advance; and (iii) the amount stipulated was reasonable and not greatly disproportionate to the amount of damage caused by the loss.[4]

If you are faced with a liquidated damages provision in a non-compete agreement, look no further than the attorneys at Maya Murphy to guide you through the process and negotiate on your behalf.  Please contact the firm’s Westport office, at 202-221-3100.


[1] PRF, Inc. v. Gosselin, 1993 Conn. Super. LEXIS 3201 (Conn. Super. Ct. Dec. 1, 1993).

[2] Id.

[3] Id.

[4] Webster Fin. Corp. v. Levine, 2009 Conn. Super. LEXIS 841 (Conn. Super. Ct. Mar. 24, 2009).

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