What is Bankruptcy?

What is Bankruptcy?

Bankruptcy allows individuals, couples, and businesses that cannot meet their financial obligations to be excused from repaying some or all of their debt. Bankruptcy has been in existence since ancient times. In the United States, the rules and procedures for filing bankruptcy are governed by federal law. States are prohibited from legislating in this area of the law.

Generally speaking, there are two types of bankruptcy. In a liquidation bankruptcy, debtors must surrender their property, which is sold, and the proceeds distributed to creditors. In return, all debts are permanently discharged. In a reorganization bankruptcy, debtors are allowed to keep their property. But the debtors must agree to an installment plan to repay creditors a portion of the amount they owe.

Filing for bankruptcy involves submitting a petition and fee to the bankruptcy court. The fee is close to $300 for most personal bankruptcies. The petition will contain sworn statements by the debtors concerning the amount of money they owe, their income and expenses, as well as a complete list of all of their assets. After filing, a court hearing is held to review the information in the petition.

Chapter 7 bankruptcies are by far the most common. These are liquidation bankruptcies in which the debtors must turn over all “non-exempt” property to a supervising officer known as the bankruptcy trustee. Property is exempt if it falls within specific categories of assets that debtors are allowed to keep, such as a certain amount of clothing, household items, tools for work, and in some instances, vehicles and the family home.

The Chapter 7 trustee will take the debtor’s non-exempt property (if there is any), and sell it. The money will be paid to the debtor’s creditors. This may result in creditors receiving a small fraction of their claims. The balance of the debtor’s loans and obligations are forgiven and can never be collected. Creditors who attempt to collect debts that have been discharged face severe penalties under federal law.

Keep Your Property

The fact that a liquidation bankruptcy wipes out debt completely is obviously attractive to anyone who cannot afford to pay their bills. But what about people who have non-exempt property that they do not want to give up? Chapter 13 is a reorganization bankruptcy. It allows debtors to keep their property by agreeing to make monthly payments toward their debt over the course of three to five years.

Chapter 13 bankruptcies offer a number of benefits besides allowing debtors to keep their property. For example, certain types of secured debt, like a car loan, can be restructured by reducing principal to the market value of the collateral, and lowering payments by extending the repayment period to 60 months. Other obligations, like mortgages, student loans, and tax liabilities can be modified as well. Creditors are given no choice in the matter.

Bankruptcy is not available to everyone. Those who have had their debts discharged in a Chapter 7 within the past eight years cannot re-file. For Chapter 13, the waiting period is six years. Too much disposable income is also a problem. Congress has established a “means test” for this purpose. Debtors who make enough money to repay their creditors will be barred from filing a liquidation bankruptcy, though reorganization may be an option.

Businesses that have become insolvent but want to stay in business may be able to file a Chapter 11 bankruptcy. Like a personal reorganization, Chapter 11 allows businesses to obtain protection from their creditors while they put together a repayment plan. Liabilities can be reduced and restructured to give the business another chance at achieving profitability.

Whether a debtor is considering filing under Chapter 7, 11, or 13, they must comply with a vast number of federal laws and regulations. An error at any step of the process can result in the court refusing to discharge the debtor’s liabilities. When the bankruptcy process ends this way, the consequences are disastrous. With so much at stake, hiring a licensed bankruptcy attorney at the outset is wise investment.

What is Industrial Law?

What is Industrial Law?

Industrial Law relates to the laws governing industrial enterprises. These can include a wide range of legal topics, from employment laws to environmental concerns, contracts, industrial relations, and worker safety regulations. Industries vary widely and the policies for each is as unique as the business to which it relates.

Employment and Labor Issues

Employment and labor laws are relevant to any commercial enterprise, and industry is no exception. Indeed, industrialization led not only to the modern conveniences of our technological age, but also the rise of organized labor unions. Employment and labor issues in industrial enterprises are particularly important, given the often hazardous nature of the work.

Industrial Accidents

Another major area of concern to industrial laws is accidents. Industrial workplaces vary widely depending on industry and purpose, from the clean rooms of high-tech manufacturing, to the often dangerous and noisy welding floors of heavy industry. Factories, warehouses, chemical plants, refineries, and many other facilities may also be considered industrial workplaces. Common industrial accidents include forklift accidents, falling objects, slips, trips, and falls, machinery or equipment injuries, explosions or blast injuries, and chemical burns or inhalation. Industrial accident injuries can often be more severe than other workplace injuries given the nature of the work. Indeed, according to the Bureau of Labor Statistics, it is estimated that two out of every 1,000 industrial workers will lose their life from a workplace accident. As a result, personal injury laws are a major area of practice related to industrial laws.

OSHA Regulations

The Occupational Safety and Health Administration (OSHA) monitors workplace safety conditions, including in the industrial sector. According to OSHA, many of the top violations resulting in citations are given to industrial workplaces. Common problems include communication hazards, lack of respiratory protection, poor electrical design, inadequate or disabled machine guards, and improper or unlicensed use of powered industrial trucks.

Other Areas of Industrial Law

As with any business, there are numerous other areas of legal concern for those in the Industrial sector. These can include contracts, real estate questions, shipping and distribution, environmental concerns, and many others.

If you have questions about Industrial Law, feel free to review the materials below on this page. Additionally, for further assistance, you can contact an attorney by visiting our Law Firms page and finding a lawyer in your area.

Copyright HG.org

Industrial Injuries Law

Industrial Injuries Law is most closely related to Workers’ Compensation Law, although, in some instances it can overlap with the practice areas of Personal Injury and Wrongful Death. This area of law originated in an effort to compensate workers who had been injured while performing their job duties. However, in the 1970’s, with the passage of the Occupational Safety and Health Act, the focus started to concentrate more on the prevention of these injuries and on the study of occupational hazards and their long-term effects. This led to the advent of widespread industrial safety programs, which have become a necessary consideration for all types of businesses.

Most industrial injuries generally fall into three categories. Currently, the type becoming most common is repetitive injuries, resulting from ergonomic hazards, and caused by stress due to performing repetitive tasks over a prolonged period of time, as well as improper lifting. The other two categories are characterized by chemical hazards and physical hazards.

Compensation for the majority of industrial injuries is obtained through the filing of workers’ compensation claims. However, in situations where there is proven neglect or other blatant legal violations committed by the employer, the injured worker may be able to seek damages through a personal injury lawsuit instead. And when severe violations result in the death of the worker, it might be possible for the worker’s family to file suit for wrongful death. This area of law, deciding if a worker may sue for damages rather than pursue a workers’ compensation claim, can be murky and is best addressed with the assistance of an experienced Personal Injury or Workers’ Compensation Attorney. Copyright HG.org

Construction Injury Law

Construction Injury Law deals primarily with workers’ compensation claims resulting from construction accidents, as well as the safety laws, regulations and standards governing the construction industry. The Occupational Safety and Health Administration (OSHA) is the governing regulatory body for construction site safety. Most states have also adopted some form of safety regulations.

Many construction workers are only able to avail themselves of workers’ compensation when they have a work injury, although there are some exceptions. Workers’ compensation benefits include wage replacement, medical coverage, vocational rehabilitation, and other assistance.

Because construction workers who have been injured on the job may have a workers’ compensation claim, a personal injury claim, and sometimes both, it is advisable to consult with an attorney knowledgeable in construction accident and injury law to determine your rights. Copyright HG.org

What is Catastrophic Injury Law

Catastrophic Injuries - Catastrophic injury means “consequences of an injury that permanently prevent an individual from performing any gainful work.” A catastrophic injury or illness usually occurs suddenly and without warning and can leave a person suffering from permanent disabilities for the rest of his/her life. Catastrophic injuries are any injuries that have serious, long-term effects on the victim. Catastrophic injuries can often put serious stress on the victim's family because they may need constant supervision or assistance for the rest of their lives, as well as a lifetime of rehabilitation and medical bills.

Catastrophic injuries can be caused by any number of different circumstances, and are considered catastrophic, due to the enormous impact they have on the lives of the individuals who experience them. A catastrophic injury or illness very often causes severe disruption to the central nervous system, such as spinal cord injuries or severe burn injuries, which in turn affects many other systems of the body. Some of the most common catastrophic injuries include: serious head trauma; accidental amputation; multiple bone fracture; eye injury; shoulder injury; foot injury; back injury; neck injury; brain injury; severe burns; organ damage; spinal cord and neurological disorders, which can result in paralysis; paraplegia; and quadriplegia. Catastrophic injury settlements seek to compensate victims for these lifelong disabilities.

What is Catastrophic Injury Law? If a catastrophic injury was caused by the negligent or intentional act of another, or by a dangerous or defective product, a personal injury claim by the victim will be an integral factor in determining his/her future quality of life, including the quality of the medical care and other support he/she will receive. Because of the huge financial implications a catastrophic injury has, one of the most important aspects of bringing a personal injury claim is the determination of the value of such a claim.

Legislatures throughout the country have imposed caps on "non-economic" damages, which can be quite low. A catastrophic injury lawyer can help recover compensation for the damages that the victim or his/her loved one has experienced, including: lost wages; loss of enjoyment of life; mental anguish; pain and suffering; lost future wages; permanent disability; and medical bills.

What is Brain Injury Law

What is Brain Injury Law? This type of injury is generally categorized as a catastrophic injury in tort law and involves the representation of people who have been injured as the result of the wrongful conduct or negligence of someone else, or the representation of the individual(s) being sued for the alleged negligence that caused the brain injury.

Because brain injuries are so diverse and complicated, is can be a complex legal issue. In addition to negligence and tort law, these injuries can also touch on administrative law, such as workers’ compensation or social security and disability. There’s also a great deal of legislation being proposed in an effort to decrease incidences of recreational and sports-related head injuries, and motor vehicle related brain injuries, and, more specifically, concussions.

If you or a loved one has suffered a brain injury as the result of another party’s negligence, an attorney knowledgeable in this area of law, can assist you in recovering compensation for the injury, suffering, medical and hospital care, current and future wage loss and the cost of future care and rehabilitation.

What is Birth Injury Law

What is Birth Injury Law? This is a subset of medical malpractice law and includes personal injury cases stemming from a failure to adequately respond to the following circumstances: maternal or fetal bleeding; fetal distress or anoxia (lack of oxygen); umbilical cord complications; the need for a cesarean section; infections; the anticipation of a large baby and related complications; and other maternal health complications. Injury can also result from incompetent or improper use of forceps or a vacuum extractor.

Negligent prenatal care can also result in harm to the baby and/or mother. This can include the failure to diagnose the mother’s medical condition; failure to identify birth defects; failure to identify an ectopic pregnancy; or failure to diagnose a disease that could be contagious to the baby.

Birth injury cases are generally classified by two types: brain injury, or anoxic brain injury, where the physician or the medical staff failed to properly monitor the birth process with fetal monitoring and the failure to order a caesarean section in a timely fashion; and dystocia, which is caused by the failure to properly help the baby down the vaginal canal during a vaginal delivery and can result in various types of palsy and other complications.

Birth injury lawsuits seek to provide the families of the injured baby with financial compensation for the child’s injury.

Asbestos and Mesothelioma Law

What is Asbestos and Mesothelioma Law?

Asbestos and mesothelioma law covers personal injury litigation brought by victims of a rare cancer, whose condition resulted from exposure to a toxic mineral previously used in the construction and manufacturing industries. These tort actions seek compensation for the medical expenses and suffering of victims. Or, if the victim has passed away, the goal is to compensate family members for the loss of their loved one. In either case, the basis of the suit is the gross negligence of the defendant, for exposing the victim to a substance known to cause disease.

History and Scope of Asbestos Exposure

Asbestos is the name used to describe several natural minerals with physical characteristics making them ideal for all sorts of commercial applications. These minerals are strong, heat resistant, and cheap to produce. Asbestos fibers can be mixed with cement or woven into cloth. Until several decades ago, the material was commonly used to make home ceiling insulation, floor tiles, vehicle brake pads, firefighting suits, and more. The maritime industry also made extensive use of asbestos in the manufacture of civilian and military vessels.

Concerns over the health related impacts of asbestos began during the industrial revolution and continued well into the 20th century. Early cases of illness involved asbestos workers who suffered respiratory problems from breathing the airborne fibers. The first case of mesothelioma traced to asbestos exposure was reported in 1964, and widespread use of asbestos finally ceased in the late 1970s and early 1980s.

Evidence suggests that during the time asbestos health concerns were on the rise, so too was the use of the material, as companies made the strategic decision to increase production and use profits to pay future legal claims. This was possible due to the lengthy amount of time (20 to 50 years) that typically elapses between exposure and the onset of mesothelioma. The reprehensible conduct of asbestos producers, and the devastation mesothelioma inflicts on its victims, have led to mass tort litigation in recent years.

Legal Recourse for Mesothelioma Patients

Financial compensation is available for those diagnosed with mesothelioma. But legal action must be taken quickly, as a number of factors can make obtaining compensation difficult or impossible for victims who delay. For example, all states have enacted “statutes of limitation” that impose time limits for bringing an asbestos-related lawsuit. Statutes of limitation generally run from the time of diagnoses. In a few states, including California, the deadline for filing suit is as short as one year.

Sadly, patients who wait to pursue legal action will also find themselves up against the reality of the short lifespan associated with mesothelioma. Money awarded in these cases is meant to provide an opportunity to seek the best medical treatment possible, and alleviate financial concerns so the victim can concentrate on fighting the disease. If a legal claim is not brought immediately, the proceeds may come too late to directly benefit the victim (although the money can be a means for the victim to provide for the financial security of surviving family members).

Hiring an Attorney and Filing Suit

Once a victim meets with an attorney, the attorney’s law firm will step in and handle nearly all aspects of the case, so the client can concentrate on medical and personal matters. The responsible parties will be identified, as well as any additional sources of funding, such as victim trust accounts set up by asbestos companies that have closed down or gone bankrupt. Suit will be brought either in the state where the client lives, or in another state if doing so will increase the odds of obtaining a large damage award.

The attorneys for both sides of the case will then conduct “discovery.” Discovery is the process of exchanging records and other evidence. During discovery, the client may need to appear and give testimony at a deposition, which will be held nearby for the convenience of a client who is sick and suffering. Representatives for the defendant will also be deposed. This is the opportunity for victim’s lawyer to question the defendant about the case, on the record and under oath.

When discovery is complete, the parties will have the evidence they need to evaluate the value of the plaintiff’s claim. Settlement discussions will then be held, and if a dollar amount can be agreed on, the money will be paid to the plaintiff and the case will be dismissed. If an agreement cannot be reached, the case will go to trial. Often, mesothelioma victims will opt to resolve the matter through settlement, although those who go to trial are routinely rewarded with large, multimillion dollar jury verdicts.

Mesothelioma Lawyers are Standing By

If you or a family member has been diagnosed with mesothelioma as a result of asbestos exposure, you do not need to worry about the cost of seeking justice. Attorneys who specialize in these cases are available to meet with you for free, and to pursue your claim on a contingency basis. Contact a lawyer now to find out more.

What is Personal Injury Law?

What is Personal Injury Law?

Personal injury law refers to the legal remedies and defenses involved in civil lawsuits brought as a result of wrongful conduct. In fact, the word “tort” comes from a Latin term meaning twist, wrong, or harm. In contrast to criminal law, a tort action does not involve the government prosecuting the wrongdoer. Rather, these cases involve a private plaintiff seeking compensation (usually money) for the harm caused by the defendant’s actions.

Most personal injury cases are based on the doctrine of negligence. In essence, negligence requires every member of society to act responsibly and avoid putting others at risk. That is not to say that negligence will result each time someone gets hurt. The doctrine recognizes that some accidents are unavoidable. To establish liability, the plaintiff must show that a reasonably prudent person in the defendant’s position would have acted differently under the circumstances.

Examples of negligence include car accidents caused by drunk drivers, medical complications resulting from a physician’s carelessness, and dog bites that occur when vicious animals are permitted to roam free. In each instance, the responsible party ignored the risk posed to others, and as a result, the plaintiff was injured.

Once negligence has been established in a personal injury case, the defendant must pay the plaintiff for all injuries caused by the defendant’s actions. Certain types of damages are easy to calculate, such as property damage and medical bills. For other types, such as emotional distress and loss of earning capacity, expert testimony may be required. Punitive damages, meant to punish and deter particularly egregious conduct, may also be available.

When initiating a tort action, identifying the proper defendants can be difficult. This is because the “tortfeasor” who directly harmed the plaintiff – be it a delivery driver, nurse, grocery store clerk, or other individual – may not have the financial resources to pay a large judgment. An experienced injury attorney can identify and sue additional parties who are liable based on their relationship to the tortfeasor, such as a landlord or employer.

Common Torts and Defenses

Personal injury law encompasses a number of causes of action besides negligence. Many of these fall under the umbrella of intentional torts. As the name suggests, in these situations the defendant acts purposefully to harm the plaintiff. Examples include assault, battery, false imprisonment, trespass, theft, and infliction of emotional distress.

On the opposite end of the tort spectrum, there are scenarios in which defendants will be liable even though they did everything possible to avoid causing the harm. This is referred to as strict liability. The law will hold a defendant strictly liable if someone is hurt while the defendant is engaging in a highly dangerous activity, even if the activity is legal and all precautions are taken. Building demolition and transporting hazardous materials fall into this category.

Another common tort involves injuries caused by defective products. Liability in these cases can be imposed based on a theory that the manufacturer acted negligently by designing and selling an unsafe product. Or, if certain elements are met, plaintiffs hurt by a defective product may be able to sue under a strict liability theory. Either way, product liability cases have the potential to become large class action lawsuits, involving many plaintiffs and enormous money judgments.

To defend against personal injury liability, defendants tend to rely on a few common defense theories. In negligence cases, the defendant may argue that the plaintiff did not use due care, and is partially or wholly responsible for his or her own injury. The defendant may also claim that the plaintiff “assumed the risk” by voluntarily participating in a dangerous sport or activity, or that the plaintiff impliedly gave the defendant permission to take the action that ended up harming the plaintiff.

Plaintiffs who want to avoid losing a tort case based on such arguments should hire legal counsel. Retaining an attorney will also help avoid the unfortunate circumstance of violating a statute of limitations (that is, missing the deadline for filing the lawsuit), which is always a concern in personal injury cases.

what is Personal Injury

 

what is Personal Injury

Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property.In Anglo-American jurisdictions the term is most commonly used to refer to a type of tort lawsuit alleging that the plaintiff's injury has been caused by the negligence of another, but also arises in defamation torts. Damages include bodily injury, intentional infliction of emotional distress (IIED), and negligent infliction of emotional distress (NIED).

The most common types of personal injury claims are road traffic accidents, accidents at work, tripping accidents, assault claims, accidents in the home, on a cruise ship, product defect accidents (product liability) and holiday accidents. The term personal injury also incorporates medical and dental accidents (which lead to numerous medical negligence claims every year) and conditions that are often classified as industrial disease cases, including asbestosis and peritoneal mesothelioma, chest diseases (e.g., emphysema, pneumoconiosis, silicosis, chronic bronchitis, asthma, chronic obstructive pulmonary disease, and chronic obstructive airways disease), vibration white finger, occupational deafness, occupational stress, contact dermatitis, and repetitive strain injury cases.

Depending upon the intent or negligence of a responsible party, the injured party may be entitled to monetary compensation from that party through a settlement or a judgment. In the United States, this system is complex and controversial, with critics calling for various forms of tort reform. Attorneys often represent clients on a "contingent fee basis" in which the attorney's fee is a percentage of the plaintiff's eventual compensation, payable when the case is resolved, with no payment necessary if the case is unsuccessful. Typically, a Plaintiff attorney charges 1/3 of the proceeds recovered if a case is settled out of court or 40 percent if the matter proceeds to trial. These sums are negotiable before hiring an attorney. Legal aid from the government may not be available; for example it was largely abolished in England in the late 1990s and replaced with arrangements whereby the client would be charged no fee if her or his case was unsuccessful.^[2]

Damages

Main article: Damages

Damages are categorized as either special or general. In torts, special damages are measurable costs which can be itemized such as medical expenses, lost earnings, and property damages whereas general damages include less measurable costs such as pain and suffering, loss of consortium, the effects of defamation, and emotional distress. Personal injury torts result in both special and general damages.

Four things must be proven in order to hold a party or parties legally liable for injuries so damages can be awarded:^[3]

1. The party had a duty to act reasonably according to the circumstances.
2. The party breached the duty.
3. The party’s breach of the duty caused you to be harmed.
4. You suffered monetary damages due to the harm you suffered when the party breached its duty of care.

The amount of compensation for a personal injury will primarily depend on the severity of the injury. Serious injuries (such as broken bones, severed limbs, brain damage) that cause intense physical pain and suffering receive the highest injury settlements.

Aside from compensation for injuries, the injured person may get compensated for the lifetime effect of the injuries. An example, a keen cricketer suffers a wrist injury which prevents him from playing cricket during the cricket season. This is called loss of enjoyment of life and is compensable. Additionally, lost earning capacity (Future ability to learn) and future reasonably necessary medical expenses are recoverable.

In some cases, the injured might run his or her own businesses. The quantum assessment of the loss of profits (dividing into pre-trial and post-trial) requires forensic accounting expertise because the forensic accountant would consider various scenarios and adopt the best estimate based on the available objective data.^[4]

Time limitation

In England and Wales, under the limitation rules, where an individual is bringing a claim for compensation, court proceedings must be commenced within 3 years of the date of the accident, failing which the claimant will lose the right to bring his or her claim. However, injured parties who were under the age of 18 at the time of their accidents have until the day prior to their 21st birthdays to commence proceedings. A court has the discretion to extend or waive the limitation period if it is considered equitable to do so.^[5] Another exception is if the accident caused an injury, as an example industrial deafness, then the three-year period will start from when injured party knew or ought to have known that he or she had a claim.^[6]

In the United States, each state has different statutes of limitations - laws that determine how much time you have to file a claim. Different types of injuries may have different statutes of limitations as well. Rape claims, for example, often have a much longer statute of limitation than other injuries. In some states such as Colorado, the statute of limitations starts to run once the injury is discovered. For example, if you were in a car accident and then 6 months later started having severe back problems, the statute would start when you noticed the injury.

In India, in case of motor vehicle accidents there is no time limitation for bringing a claim for compensation.^{[citation needed]}

Lawsuit and payment

Payments will be through a settlement agreement or a judgment as a result of a trial. Settlements can be either lump-sum or as a structured settlement in which the payments are made over a period of time.

Insurance

Main article: Liability insurance

In insurance in the United States, personal injury in the sense of "bodily injury" to others is often covered by liability insurance such as auto insurance. Therefore, an insurance company will provide a legal defense to the defendant and may settle with the plaintiff (victim).

Additional damages for mental injury without a physical injury are less clearly covered, as the insurance policy typically states that it covers only bodily injury. For example, in general liability as of 2001 a minority of courts included emotional distress within the definition bodily injury.^[7][8]

In insurance "personal injury" as typically defined does not include bodily injury damages and instead refers to mental injury damages, particularly as a result of defamation, false arrest or imprisonment, or malicious prosecution; for example, the Insurance Services Office standard general liability form has a section providing this coverage.^[9] Similarly, some home insurance policies include personal injury coverage.^[10]

Despite the general distinction between bodily injury and personal injury in insurance contracts, auto insurance known as personal injury protection (PIP) does cover medical expenses from bodily injury.

Taxation of personal injury settlements

In the United States, typically, the money awarded in a personal injury settlement is not taxable. The official statement from the IRS regarding the tax-ability of personal injury settlements is as follows: "If you receive a settlement for personal physical injuries or physical sickness and did not take an itemized deduction for medical expenses related to the injury or sickness in prior years, the full amount is non-taxable. Do not include the settlement proceeds in your income." However, there are exceptions. If a portion of the settlement draft is specifically allocated to wage loss, the settlement then becomes taxable. Similarly, if you itemize deductions, and you claimed medical expenses in previous years as an itemized deduction that were later reimbursed by the settlement, then that amount would be taxable.^[11]