Select the area of the law you would like more information: ACCIDENTS INVOLVING UNDERINSURED DRIVERS ACCIDENTS INVOLVING UNINSURED DRIVERS AUTO INSURANCE REFORM BAD FAITH LITIGATION BANKRUPTCY BUYING A HOME CHILD SAFETY DIVORCE EXPERT WITNESSES FRIVOLOUS CLAIMS JURY DUTY POWER OF ATTORNEY WILLS WORKERS' COMPENSATION Please let us know if there are other topics you are interested in reading about. Call us to arrange an appointment today. 22 North Shore Road Absecon, NJ 08201 TEL:  (609) 646-2123 FAX: (609) 646-4077 Established 1982 Email: MutchkoLaw@comcast.net ACCIDENTS INVOLVING UNDERINSURED DRIVERS Automobile insurance policies provide underinsured motorist coverage. What this means is that if the defendant's policy is insufficient your policy will supply the difference. For example, assume that the defendant's insurance has a $15,000 limit and your insurance contains a $50,000 limit. Further assume your injuries total $35,000. In that event you would receive the $15,000 from the defendant and then your insurance would pay $20,000. We will promptly notify your insurance company that your injuries exceed the limits of the defendant's policy. When the defendant offers the insurance policy we will further notify your insurance carrier. In order to receive the funds from the defendant you must sign a release and the above notice permits your insurance company to protect its right to recover from the defendant. If you are unsure as to the amounts of uninsured or underinsured motorist coverage you have, we recommend that make an appointment with us to review your declaration page. Top of Page ACCIDENTS INVOLVING UNINSURED DRIVERS What happens when you are injured as a result of an accident with an uninsured driver? Can you still recover for your injuries? In many instances, the answer is yes. If you were involved in a motor vehicle accident and you were insured at the time of the accident but the other driver was not you can file an uninsured motorist claim. This is a mandatory provision in your automobile insurance policy. The minimum coverage is $15,000.00 per individual with a total of $30,000.00 for multiple claims. However many policies contain higher coverage. If you can demonstrate that the other vehicle was uninsured at the time of the accident you must put your insurance company on notice. Your insurance company is then obliged to handle the claim as if they were representing the uninsured driver. That is, the same defenses that may be available to the uninsured driver are also available to your insurance company. If you cannot settle the claim with your insurance company then the claim goes to arbitration or in some instances depending on the language in your policy to Superior Court. We will serve the insurance company with a demand for arbitration and advise the carrier of the identity of the arbitrator he has selected. Your insurance company will select an arbitrator of its own and the two arbitrators will then select a third, neutral arbitrator. We will present evidence to the three arbitrators and a decision will be made as to your award. There is also a state fund established to address injuries stemming from uninsured motor vehicle accidents known as the Unsatisfied Claim and Judgment Fund. Top of Page AUTO INSURANCE REFORM There have been a variety measures enacted by the New Jersey Legislature over the years to reduce the cost of automobile insurance. The law currently provides limitations when suing for personal injuries. In addition to demonstrating that the accident was caused by the fault of another, the injuries stemming from the accident must also be examined. Plaintiffs will fall into two categories: (1) those having a zero or no threshold option and (2) individuals subjected to the lawsuit or verbal threshold. In most instances, you select your threshold when you purchase your insurance policy. Your insurance premium will be more if you select the no threshold option. An injured motorist who is subjected to the verbal threshold will have to prove one or more of types of injuries outlined in the statute. We can provide you with more information concerning these injuries. The verbal threshold has been in existence in New Jersey since January 1, 1989. Since that time, there have been numerous cases interpreting the parameters of this legislation. Some would argue that it has been interpreted to permit too many cases to go to trial, while others have argued that injured victims are denied justice by a too narrow interpretation. Automobile insurance reform is often in the news. New Jersey still has among the highest insurance premiums in the country. Many feel that this is an inevitable result of our population density and absent denying injured individuals access to our courts our insurance premiums will remain higher than less populated areas. Top of Page BAD FAITH LITIGATION The term "bad faith" is used to describe certain disputes between an insurance company and its policyholder. Not every disagreement, however, can or should result in a lawsuit. The courts have declared that an insurance company must deal fairly with its insured. In New Jersey the courts have held where an insurance company does not settle a claim and it results in a judgment in excess of the policy limits, the company may be responsible for the entire amount. The term bad faith is also applied to transactions between the insurance company and its policyholder. There are regulations that set forth the duty of an insurance company to its policyholder. In recent litigation stemming from an insurance company's unreasonable delays in resolving a claim the court held that damages could be awarded and under certain circumstances punitive damages as well. Punitive damages are damages that exceed the actual loss suffered by the litigant and are designed to punish. If an individual believes that an insurance company has treated him or her unfairly, then it would be advisable to contact us. We are willing to handle the claim for a percentage of the amount recovered and in certain instances the courts are allowed to award a fee which the insurance company is required to pay. Top of Page BANKRUPTCY The Bankruptcy Code is designed to give debtors a "fresh start." An assortment of problems can cause a person to seek bankruptcy protection, e.g. marital difficulties, disability, loss of job, etc. Consumer debtors can generally avail themselves to a Chapter 7 or Chapter 13 bankruptcy petition. Under Chapter 7 the debtor is permitted to avoid paying unsecured debt, for example credit cards, in exchange for liquidating non-exempt assets. This is referred to as a discharge of debt. Some debts cannot be discharged or are limited and they include child support obligations, taxes, student loans, fines and fraudulent transactions. Secured creditors must be paid or the collateral surrendered, for instance car loans and real estate mortgages. Certain assets are exempt. This means the Bankruptcy Code permits a debtor to keep these assets, for example a portion of the equity in the home or automobile. In certain instances the debtor may want to pay his creditors, but because of cash flow problems he is unable to do so in a timely manner. Chapter 13 will afford him the opportunity to pay some or all of his debt to creditors over 36, 48 or 60 months. We can stop creditors from calling at home or at the work place, stop the seizure or repossession of automobiles or other assets, stop wage attachments, or stop a foreclosure. This can be done immediately because the Bankruptcy Code provides an automatic stay, which stops the creditors from taking further measures against the debtor without seeking the permission of the Court. If you have determined that your obligations exceed your ability to pay or you simply need a more orderly payment arrangement, contact us to discuss the options available to you. Top of Page BUYING A HOME You have found your new dream home. The sellers have accepted your offer and you are prepared to leave the world of renting. The real estate broker hands you the contract to sign. If the above sounds familiar to you, you may be wondering what happens next. This will be an exciting time for you. Carefully review the information contained in the contract before signing. Check for the accuracy of the purchase price, mortgage provisions, closing date, exceptions to title, condition of the property, personal items included in the sale, etc. Be aware that if a real estate agent is involved your contract will contain a clause entitled "Attorney Review." This clause allows you three (3) days to have your attorney review the contract. If we disapprove the contract may be cancelled. You will next be visiting a bank or mortgage broker to obtain a loan for the purchase. Your contract will contain and you should carefully review a clause entitled "Mortgage Contingency." Failure to abide by the terms of this clause may result in a breach of contract. When you obtain your mortgage commitment it will then be time to order title insurance, survey and termite inspections. All of the information received from these requests should be carefully reviewed. The title report may contain easements or encumbrances, which may restrict your use and enjoyment of the property. Additionally, the survey should be examined for an accurate description and encroachments. Finally, the exterminator will advise if any visible evidence of infestation was observed. After the above you will proceed to closing which will take place at a title company or our office. You will review a settlement statement, which will set forth your obligations and manner of payment. Finally you will receive your deed. Enjoy your new home! Top of Page CHILD SAFETY We are frequently asked questions concerning bicycle helmets and the use of seat belts for children. The law states that a person under fourteen years shall not operate or be a passenger on a bicycle without wearing an approved, fitted and fastened bicycle helmet. This law also applies to children riding in a child seat. A child who violates this act shall receive a warning. The parent may be fined a maximum of $25.00 for the first offense and then a $100.00 for subsequent offenses. The fine may be waived if it is proven that the child owned a helmet or has purchased a helmet. Fines collected under this act are deposited into a fund for educational programs devoted to bicycle safety and to assist low-income families in purchasing helmets. With regard to seat belts for children, the law requires that every person operating a motor vehicle be responsible for the protection of children under five by properly using a child passenger restraint car seat. If the child is eighteen months or more but under five years then the child may use a seat belt in the rear seat. There has been controversy concerning the location of children in vehicles containing air bags. Parents should contact the manufacturer for new developments concerning this product. On December 1, 2001, the child seat law was changed requiring that all children age 8 and younger must be in a car seat or a booster seat unless they weigh more than 80 pounds. For more information about the new child safety seats and new law, visit www.njsaferoads.com . Top of Page DIVORCE Under New Jersey law to obtain a divorce you must prove your case by one of nine methods. If you can satisfy the Court that the relationship falls under one of the categories provided you may be released from the bonds of matrimony. As of 2007 the most common method is informally referred to as irreconcilable differences. This provides the parties with the means of obtaining a divorce without accusing a spouse of wrongdoing. This method recognizes that there is usually some blame and some virtue with each party and acts to dissolve the marriage without further acrimony. There is also an eighteen month no fault divorce. To qualify, husband and wife must live separate and apart in different households for a period of at least eighteen consecutive months and also show that there is no reasonable prospect of reconciliation. The plaintiff may also receive a divorce where the defendant has deserted the spouse for twelve months and they have ceased to cohabit as man and wife. New Jersey also permits a divorce where there is evidence of extreme cruelty. Extreme cruelty includes both physical and mental cruelty, which endangers the safety or health of the plaintiff and makes it unreasonable to expect the plaintiff to cohabit with the defendant. This ground for divorce requires that the complaining party wait three months. The legislature affords couples a ground for divorce based on adultery. The party need not prove that the act was actually committed but rather present evidence that demonstrates inclination and opportunity to commit adultery. The remaining grounds for divorce are drug addiction, mental illness, imprisonment and deviate sexual conduct. In the course of a divorce proceeding a variety of other issues may be addressed. These may include child custody and visitation, support, alimony, division of assets and responsibility for marital obligations. Top of Page EXPERT WITNESSES To persuade a jury a trial attorney will often call upon expert witnesses to testify. Generally, witnesses are required to avoid stating opinions and must only testify with regard to facts obtained through the use of their senses. Experts, however, are permitted to voice their opinion and form conclusions if they are deemed by the Court to be properly qualified. Additionally a trial judge will only permit an expert to render an opinion if it will help the jury in understanding other evidence or in deciding a fact. There are unlimited experts available to help litigants prove their case. For instance in personal injury cases doctors are called upon to provide expert medical evidence to prove the extent of an injury and that the injury was caused by the negligence. Additionally a vocational expert may be needed to prove lost wages and a liability expert to demonstrate a defect, negligent act or omission. Most people are familiar with forensic experts who testify in criminal trials on a variety of topics including fingerprints, blood samples and other crime scene evidence. Handwriting experts are called on to identify the author of a specific writing. Real Estate appraisers assist in resolving valuation questions. In some cases expert testimony is mandatory. In a medical malpractice case, for example, a plaintiff must obtain an affidavit of merit from an expert before a lawsuit can be filed. After the lawsuit is commenced the plaintiff is required to provide expert testimony that the medical provider deviated from an acceptable standard of care and the deviation resulted in injuries. Top of Page FRIVOLOUS CLAIMS In England an unsuccessful litigant is responsible for his own attorney fees and that of his adversary. In New Jersey we follow the "American Rule" which provides that attorney fees are not awardable to the winning party unless statutorily or contractually authorized. We do have, however, a statute which litigants can avail themselves if it is determined that a claim asserted against them was frivolous. N.J.S.A. 2A: 15-59.1. Note this statute not only applies to complaints but also a defense which is found to be without merit. In order to take advantage of this statute the Judge must find that the party acted in bad faith, solely for the purpose of harassment, delay or malicious injury. The non-prevailing party can also be held responsible under this Act if he knew, or should have known, that the claim or defense was without any reasonable basis in law and could not be supported by a good faith argument or an extension, modification or reversal of existing law. If it is determined by the court that the claim or defense falls under the description above, then the court can award attorney's fees and other costs. Arguments have been made supporting this type of legislation and criticizing it. Supporters state that too many lawsuits are filed for "nuisance" purposes, or to compel a defendant to settle a case and avoid the uncertainties and costs of litigation. Critics argue that the law must evolve with society and these types of sanctions put a chill on attempt expand the known parameters of the law. Top of Page JURY DUTY In a democracy, which respects civil liberties, trial by jury protection is one of the most fundamental rights. In Atlantic County, jurors are asked to serve at the Court House in Mays Landing or in Atlantic City. Criminal cases are handled in Mays Landing. Other matters, referred to as civil cases, are heard in Atlantic City. Civil cases include accident claims, contracts, etc. It has been our experience that jurors accept their responsibility seriously. Accordingly they are often nervous about their ability fulfill their duty. The Court personnel do an exemplary job familiarizing jurors with the legal process. After arriving at the Court House jurors receive an orientation by the jury staff and view an orientation film. There is a one-week term of service. If selected for a trial, however, the juror must serve for the entire time it takes to complete that trial. In criminal cases twelve jurors will be asked to decide the guilt or innocence of the defendant. The standard in these types of cases is guilt beyond a reasonable doubt. In civil matters where a jury is demanded there will be six persons, and only 5/6ths of the jurors need to agree on an issue. The burden of proof in civil cases is a preponderance of the credible evidence. During jury selection, lawyers will often ask that jurors be excused. This request may be because the lawyer does not believe the juror can make a fair decision. A lawyer may also exercise what is known as a peremptory challenge. This challenge permits a lawyer to excuse a juror without stating a reason. Top of Page POWER OF ATTORNEY A Power of Attorney is a legal document authorizing another to act as one's agent. The individual who gives the Power of Attorney is known as the principal. The person who acts on behalf of the principal is known as the agent. A Power of Attorney is used in a variety of situations. The principal may wish to have limited or special transactions conducted on his behalf. For instance, he may wish to provide his agent with authority to sign all documents in connection with a real estate purchase. This may be required due to geographical separation or merely for convenience. A general Power of Attorney is often prepared that permits the agent to conduct business on behalf of the principal. This type of document permits the agent to perform all matters, including but not limited to banking transactions, transfer of real estate and stock, borrowing, encumbering collateral, etc. In other words, the agent is permitted to do every act that the principal might do if personally present. A Power of Attorney may be revoked at any time by the principal or upon the death of the principal. A Power of Attorney may also provide that the document remains effective even if the principal becomes disabled, either mentally or physically. Top of Page WILLS When a person dies without a will his estate is controlled by an intestate statute. An administrator is appointed who serves in essentially the same capacity as an executor. In New Jersey, the intestate statute provides for how the decedent's assets will be divided by heirs. If it is determined that you need a will then a decision should be made as to the appointment of an executor. If there is a minor involved then the appointment of a trustee and/or guardian will be necessary. Some assets are not included as a probate asset. For instance if a home is owned jointly with rights of survivorship then upon death the decedent's ownership rights will transfer by operation of law. Usually life insurance policies are not included in the estate, and are paid to designated beneficiaries. In preparing to meet with your lawyer if possible know in advance what assets and liabilities will become part of the estate and have those facts ready. Also give consideration as to the appointment of individuals who will serve as executor, trustee, and/or guardian. Top of Page WORKERS' COMPENSATION A worker who sustains an injury is generally entitled to three items of relief. Firstly, there are payments for lost wages. Secondly, authorized medical treatment is to be paid by the employer. Lastly, the worker, or the petitioner as he is known in a workers compensation claim, is entitled to a lump sum payment for any permanent disability. There are advantages and disadvantages to the workers compensation system. One advantage is that a petitioner does not need to prove negligence in order to present a claim. The worker must merely demonstrate that he was injured in the course of his employment, that is doing his job on company time. Attorney fees are contingent and are much lower than a negligence claim. The Judge approves all fees and they generally are 20% of the amount recovered. The petitioner is only responsible for a portion of that amount. There are significant disadvantages to workers compensation claims compared with negligence claims. Your workers compensation claim is usually the only remedy you have against your employer, even if your employer was negligent and caused your injuries. There is no compensation for pain and suffering in the workers compensation claim. Further, the employer is only responsible for curative treatment, not palliative treatment, treatment to alleviate pain but not correcting the injury causing the pain. You are awarded compensation by the Judge based on the degree of permanent disability. Each year charts are published setting forth the amounts of compensation. If you believe you are entitled to compensation for work related injuries, contact us. Top of Page ~ Written by Gregory J. Mutchko, Esquire. Please let us know if there are other topics you are interested in reading about. Call us to arrange an appointment today. 22 North Shore Road Absecon, NJ 08201 (609) 646-2123 fax (609) 646-4077 Established 1982 Email: MutchkoLaw@comcast.net This web site is designed for general information only.  The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.