Establishing the “fault” part of a case requires a time sensitive investigation concerning
what happened.

The complexity of the investigation varies from case to case, but all cases require at least some investigation about what happened. For example, you may think that if you are stopped at a red light and whacked from behind by another car, no investigation is required, but that is not so. There are appellate court cases that consistently say the trial judge is correct in refusing to allow a jury to consider the damages part of the case, because the injured person has not proven that the person who hit him from behind legally was at fault in doing so.

In an automobile collision case, the investigation of the fault part of the case may involve interviewing witnesses to the collision, interviewing the police officer who investigated the collision, taking pictures of the scene, and the damage to the vehicles involved, and hiring an accident reconstruction expert.

If you have been injured because you slipped or tripped and fell, the investigation almost always will include hiring an engineer to examine and report about the area where you were injured, and may also include hiring a meteorologist to report concerning weather and temperature conditions at the time you were injured and a relevant period of time prior to that.

If you have been injured by a product that failed to work as expected, the investigation almost always will require one or more engineers, physicists, chemists, or other scientists to examine and report concerning the product that caused your injury. In these cases, it is not unusual for the investigation to require input from several scientists in different fields of study.

If you have been injured while a resident in a long term care facility, the investigation will require a thorough review of the relevant medical records by a nurse with expertise in standards of care applicable to residents of long term care facilities, and, as well, by a physician or nursing home administrator with the same type of expertise.

However your injury occurred, an early, informed, and thorough investigation of what happened to cause your injury is essential.

Establishing the “damages” part of the case requires a time sensitive investigation concerning what happened to you!

The investigation always requires a detailed review and analysis of the medical records and bills concerning the treatment of the injuries you sustained. Obtaining and understanding medical records, bills, and billing codes require skill and experience. We have both. We have read, reviewed, and analyzed thousands of medical records and billing summaries. Our personal injury paralegal is a nurse.

The investigation almost always requires a detailed review and analysis of your medical records concerning treatment for prior injuries or similar conditions.

The investigation often requires a professional photographer to photograph visible injuries, bruises, or medical appliances used during convalescence.

The investigation always requires a detailed review of the time you have missed from work, of your prior work history, of your educational background, and of your earnings from your work during a relevant prior period of time.

The investigation requires a detailed review of the insurance you have that is available to pay for the treatment you are receiving for your injuries, the cost of that insurance, and the likely sources of payment for medical expenses that may continue for years into the future.

The investigation will require communicating with your treating physician(s) to determine if the injuries you sustained are likely to impair permanently your ability to function as you had before you were injured.

The investigation always requires that we get to know you, that we learn about your family, that we learn about your hobbies and interests, and that we learn about all of the little ways your life has been changed from the life you enjoyed before you were injured. An important part of what makes each of us special is the little routine things we like to do, are used to doing, and count on being able to do without thinking twice about it. No one else may do these things, but you do, and that is a part of why you are you. When one loses the ability to do some of those things or knows that they can be done only with pain, a part of the self has been taken away. The ability to communicate that loss to the other driver’s insurance company and its representatives, a judge, and a jury is a critically important part of establishing what happened to you.

What You Can Expect From Us:

We will meet with you as often as we need to or you want to.

We will investigate the fault part of the case to determine what happened, in a time sensitive, thorough, and skilled manner.

We will investigate the damages part of the case to determine what happened to you, in a time sensitive, thorough, and skilled manner.

We will be persistent and diligent in obtaining your relevant medical records and bills.

We will be diligent in communicating your injuries, damages, and losses to the responsible person’s insurance company or representatives.

We will keep you informed consistently about what we are doing by letters to you, phone calls to you, and email communications to you.

If we are not here when you call or email, we will answer your phone calls and email communications the same day.

We will assure that you feel comfortable and at ease when you call the office; you will not be made to feel that it is a burden for us to speak to you.

When we communicate with you, we will do so clearly, and will not use legal double talk.

We will evaluate your case honestly and will not make false promises or create unrealistic expectations.

We will aggressively, but not obnoxiously, fight to obtain the maximum monetary recovery realistically attainable.

We will not back down or be intimidated by the responsible person’s insurance company or representatives.

If the offer made by the responsible person’s insurance company is not reasonable, we will tell you that, we will not pressure you to accept it, we will recommend that you put the case into suit, and, if you authorize us to do so, we will commence that lawsuit immediately!

At about the same time the Listing Agreement is signed, the Seller also will sign a Residential Disclosure Report. This report asks a number of questions about the condition of the home, the repair history of the home, and whether the seller has knowledge of problems with particular parts of the home. State law requires that this report be completed and signed by the Seller and furnished to the Buyer in a timely manner.

When a Buyer has been found who is willing to purchase the home on terms acceptable to the Seller, a Real Estate Purchase and Sales Contract is signed by both parties. Among other provisions, the Contract will state the purchase price, the amount of the deposit, the amount of the mortgage, the closing date, the items of personal property included as part of the sales price, and any rights of way, easements or other encumbrances on title that run with the land.

Most Contracts contain an inspection contingency, and a financing contingency. In general, these contingencies allow the Buyer to cancel the contract if either contingency is not satisfied, and the Buyer notifies the Seller of this within time periods specified in the Contract. On occasion there also is a contingency that allows the prospective Buyer to cancel the Contract if the Buyer is unable to sell his/her existing home by a specified date.

One would think that the legal issues associated with buying or selling a home are simple, leading one to ask “why do I even need a lawyer” or “why do I need a lawyer anywhere except at the closing.” Although most residential real estate transactions eventually do close, it is not unusual to see disputes arise along the way, sometimes at the last minute, and sometimes even after the closing.

Here are some examples of disputes that sometimes arise along the way: areas of the home requiring replacement or repair not readily apparent from a visual or even closer inspection; delays in obtaining financing; problems with the title to the property; driveway or other neighbor encroachment issues; an inability to sell an existing home in order to fund the purchase of a new home; delays in construction; a request to take possession prior to the closing; an inability or simple unwillingness to close on the date for closing set forth in the contract; water, drainage or sewage problems discovered for the first time after closing.

The resolution of all such disputes is governed by the language of the Contract, the content of the Residential Disclosure Report, Connecticut statutory and case law, and the terms of all of the other written documents generated between the date of the Contract and the date of the closing. For those reasons, from the beginning, advice by an attorney and careful review of all documents you sign is of the utmost importance!

What You Can Expect From Us:

Whether you are the Buyer or the Seller, if you contact us before you have signed the Contract, we will review the Contract before you sign it. We will assure that the language in the Contract protects your interests.

We will monitor closely all contingencies described in the Contract. If you are the Buyer and need more time to satisfy a contingency, we will make that request. If you are the Seller, and a contingency has not been satisfied within the time specified, we will take action to protect your interests.

Whether you are the Buyer or the Seller, we will review any issues raised by the home inspection report and help negotiate a resolution of those issues.

We will review the title search report in a timely manner, discuss any irregularities that appear in the report, and, if you are the Seller, take steps to obtain releases of any encumbrances disclosed in the report.

If you are the Buyer, we will review the mortgage commitment letter you receive from your lender, answer any questions you have about the loan and mortgage or about the charges disclosed in the commitment letter, and be in regular contact with your lender to assure that the mortgage documents are delivered in a timely manner.

Whether you are the Buyer or the Seller, we will assure that the closing is scheduled in a timely manner.

Whether you are the Buyer or the Seller, we will review the closing statement with you in advance of the closing, explain all charges and adjustments in clear language, and answer any questions you have about the charges and adjustments disclosed on the closing statement.

Whether you are the Buyer or the Seller, we will prepare all of the documents you will be required to sign in order to close, we will attend the closing with you, we will explain, in clear language, the content of all documents you are required to sign, we will protect your interests in the negotiation of any disputes that arise at the closing, and we will assure that you receive a copy of each document you signed at the closing.

If you are the Buyer, we will assure that the Warranty Deed, Mortgage Deed, Releases, and any other documents that must be recorded on the Land Records are recorded in a timely manner.

We will meet with you as often as necessary to answer any questions you have. You will be encouraged to call us or email us with any questions that may arise at any time. When you call, you will not be made to feel like you are pestering or annoying us by calling; rather, you will be made to feel welcomed and at ease. We will answer your questions fully and clearly.

Is there a Will? Where is the Will? What if there is no Will? How do we pay the funeral home? What will happen to the house? Will the Probate Court tie things up for years? Will probate costs and legal fees eat up the entire estate?

In Connecticut, the Probate Court is the court of original jurisdiction over a variety of matters, including, for example, conservatorship proceedings, guardianship proceedings, and adoption proceedings. It also is the court of original jurisdiction in matters relating to the administration of a decedent’s estate.

The Probate Court has two separate roles in the administration of a decedent’s estate. The first role is to transfer title to assets that appear in the decedent’s sole name to the beneficiaries named in the Will or the heirs at law, if there is no Will.

Assets that appear in the decedent’s sole name are referred to as probate assets. Probate assets can not be passed on to the beneficiaries named in the Will or the heirs at law without intervention by the Probate Court.

An asset that is jointly owned is an example of what is referred to as a non-probate asset. It is called a non-probate asset because it passes, by operation of law, to the surviving joint owner without any intervention by the Probate Court. Other examples of non-probate assets are retirement benefits, life insurance policies, and annuities. They are non-probate assets because they pass to the designated beneficiary, by operation of law, without any intervention by the Probate Court.

The second role of the Probate Court is to receive the Connecticut estate tax return. A Connecticut estate tax return is required to be filed for all decedents who died after January 1, 2005, even if there are only non-probate assets. The Connecticut estate tax exempts from tax unlimited amounts of assets passing to a spouse, and $2,000,000.00 in value of assets passing to anyone other than a spouse. For that reason, in most instances, no Connecticut estate tax will be required to be paid. Nonetheless, a return is required to be filed for all decedents.

The number of documents that are required to be filed with the Probate Court will depend upon whether the decedent died as the owner of probate assets, and the value of the probate assets.

If the probate assets have a date of death value less than $20,000.00, there is an expedited estate administration process that can be followed.

If the probate assets have a date of death value in excess of $20,000.00 these are the documents typically that must be filed with the Probate Court: an Application for Administration; an Inventory; an Application for Permission to Sell Real Estate (only if there is no Will); a Return of Claims; a Connecticut estate tax return; a Final Administration Account; and, an Affidavit of Closing.

Is home care an option? Who provides it? How much does it cost? Can we get any help with the costs?

If home care is not an option, how does the family choose a nursing home? How much does it cost? Does Medicaid or other insurance cover the cost? If not, how does the family pay for it?

The legal issues involved in Medicaid eligibility planning are complex and multi–dimensional. They require an analysis of both state and federal law. In addition to familiarity with the United States Code, the Connecticut General Statutes, the Code of Federal Regulations and the Department of Social Services’ Uniform Policy Manual, Medicaid eligibility planning requires attention to gift tax issues, income tax issues, common law contract issues, probate administration issues, and statutory and common law transferee liability issues.

State and federal Medicaid eligibility planning differs depending on whether the potential applicant is a single person, on the one hand, or a person with a spouse still living in the community, on the other hand. That is because the Medicaid eligibility rules for a single person are different from the Medicaid eligibility rules for a married couple.

If the potential applicant is a single person, assets owned by the potential applicant must be “spent down” to $1,600.00 before eligibility for Medicaid can be established. There are a variety of ways to “spend down” in a manner that directly or indirectly benefits the family of the applicant. The specific strategies employed in each instance are unique and individualized. They always depend upon the wishes of the potential applicant, the dynamics of the family, and the nature, type, and extent of the assets and income of the potential applicant.

If the potential applicant is married and has a spouse still living in the community, the family home is an excluded asset. Literally, this means that ownership of the home does not affect eligibility for Medicaid. The same is true for one motor vehicle. It, too, is considered an excluded asset.

In addition to excluded assets which can be owned by the community spouse, a portion of the couple’s non–excluded assets also are protected for the community spouse. The technical term for the amount of non–excluded assets that is protected for the community spouse is the Community Spouse Resource Allowance. The acronym “CSRA” often is used. The CSRA is ½ of the couples’ non-excluded assets, but subject to a maximum of $101,640.00. and a minimum of $20,328.00. The maximum and minimum increase every January 1.

Medicaid eligibility planning sometimes involves making one or more transfers of assets, as gifts, to children of the potential applicant. In most instances a transfer of this nature creates a period of Medicaid ineligibility, called a penalty period. Special rules, however, allow for the penalty free transfer of the family home in several circumstances.

Medicaid eligibility planning requires a careful analysis of the elder generation parents’ sources and amounts of income, and, as well, of the nature, value, and method of ownership of all of their assets. At the same time, Medicaid eligibility planning requires a patient, careful, skillful, and sensitive listening to the wishes of the elder generation parents for each other, their wishes for their children, and their assessment of their children’s ability to work together and carry out those wishes.

What You Can Expect From Us:

We will have an initial meeting that will last between one and two hours. We will talk about your health, about your family, about your past work, about your interests and activities, about your income, and about your assets.

We will review your existing Wills, Power of Attorney Instruments and Health Care Instructions, if you have executed these documents. We likely also will need to review the deed to your home, a copy of any annuity contracts you may have, beneficiary designation statements for any retirement accounts and life insurance policies you may have, and long term care insurance contracts, if you have any. As we talk at our initial meeting, there may be other documents we will need to review.

You may have some of these documents with you when we have our initial meeting. If you do, we may be able to review them at that time. If not, we will give you a written list of any documents we need to review that you did not have at the initial meeting.

Within one week of the initial meeting, you will receive a detailed planning letter from us. The letter will outline what we discussed, will describe the relevant Medicaid eligibility rules, will outline the planning options you have, and will contain a list of specific steps to take to implement the options. The planning letter will be clearly expressed, easy to follow, and easy to understand.

We will review any residence agreements you have been asked to sign by any long term care facility.

We will assist you with the preparation and filing of the Medicaid Application and the Assessment of Spousal Assets Form. Even if you prefer to complete and file those documents on your own, we will give you a list of the documents you likely will need to assemble to file with the Application. We will give this list to you either at our initial meeting or with the initial planning letter.

We will meet with you as often as needed to facilitate the implementation of the plan. You will be encouraged to call us or email us with any questions that arise at any time. When you call, you will not feel like you are annoying us by calling; rather, you will feel welcomed and at ease. We will answer your questions fully and clearly. If we tell you we cannot answer a particular question it is because we need to do some research so as to be sure our answer is correct and complete.

Legal questions often arise as you operate your business. Does the proposed new lease protect me? What is the best type of financing for my proposed expansion? What if one of my employees makes a mistake on a job? How do I protect my customer list and other confidential information? Should I merge with another company in the industry? We get along well with each other as competitors and we each bring different strengths to the table, but, what if things don’t work out?

When you are ready to retire from your business, become less active in it, or sell it completely, what is the best way to do so?

What You Can Expect From Us:

Whether the legal issue arises as you prepare to start a business, while you are operating it, or when you are ready to leave it, ease away from it, or sell it, we will ask you questions and listen carefully to what you tell us. It is important that we understand how your business operates and what your goals and objectives are. We will meet with you as often as necessary in order to allow us to assist you in meeting your goals and objectives.

We will meet with your accountant or other business advisors to assure that you have counsel and advice from all necessary parties.

We will prepare the written documents needed to meet your objectives or review and comment on documents prepared by others.

You will be encouraged to call us or email us with any questions that arise at any time. When you call, you will not feel like you are annoying us by calling; rather, you will feel welcomed and at ease. We will answer your questions fully and clearly. If we tell you we cannot answer a particular question it is because we need to do some research so as to be sure our answer is correct and complete.

Personal Injury Cases: New law effective as of October 1, 2009. If you have been involved in an automobile accident that is not your fault, an important practical question is whether the at-fault driver has insurance, and, if so, how much? The minimum amount of liability insurance required in Connecticut is only $20,000.00 per person and $40,000.00 per incident. Often, that is insufficient to cover damages sustained in a collision. A new law in Connecticut requires the at-fault driver’s insurance company to tell you exactly how much insurance the driver has. Prior to the passage of this law, many insurance companies refused to do so. This new law is important because it fosters prompt settlement of claims, often without the need to initiate a lawsuit. The new law applies to accidents occurring after October 1, 2009.
If you have been involved in an automobile accident, contact us immediately. We stay current on all changes in personal injury law and know what to do to protect your interests.

Medicaid planning: Can you complete the Medicaid application without professional help? If a family member needs Medicaid (Title XIX) to pay for care in a nursing home or at home, a Medicaid application will be required to initiate the process. The Medicaid application is filed with the Department of Social Services (“DSS”) where it is reviewed by an intake worker. The Medicaid application process can be quite daunting. As an example, in most cases, the application requires the production of all of the applicant’s bank statements for the prior four years. A review of the bank statements by the intake worker often results in follow-up questions concerning specific transactions. The job of the intake worker is to scrutinize the applicant’s past transactions (potentially as far back as five years) and verify that nothing has occurred that affects eligibility. A family member may have difficulty assembling the required documents or knowing how to respond to inquiries about past transactions.
Please contact our office if you need help with a Medicaid application. We can help you get through the potential mine field of issues that may be raised by an intake worker.

Estate planning: What is the current status of the Connecticut and federal estate tax?
The 2009 session of the Connecticut Legislature increased the Connecticut estate tax exemption for property passing to non-spouse beneficiaries from $2,000,000.00 to $3,500,000.00, effective as of January 1, 2010. On the federal level, there is no federal estate tax applicable to the estate of anyone dying in 2010, but in 2011 the federal exemption for property passing to non-spouse beneficiaries returns to $1,000,000.00. Everyone expects the federal law to be changed by Congress, but when and how is anyone’s guess. Both the Connecticut and federal estate tax have unlimited exemptions for property passing to a surviving citizen spouse.
If you have questions regarding how the Connecticut or federal estate tax may apply to you, please contact us.

Real estate transactions: Change in federal law will affect residential real estate closing process. For many years, federal law has required the Buyer and Seller of residential real estate to sign what is referred to as a “HUD-1” closing statement. The purpose of the HUD-1 is to disclose all costs associated with the transaction and all adjustments between the Buyer and Seller. It has not been uncommon for the figures on the HUD-1 to change, often at the last minute. The change in federal law requires a mortgage lender to give the Buyer/Borrower a Good Faith Estimate of all closing costs at least 10 days prior to the closing. In most cases, the closing costs disclosed on the Good Faith Estimate cannot be changed at the closing. This change in federal law puts a premium on accurately determining all closing costs much earlier in the process.
Whether you are a Buyer or a Seller, we will explain the HUD-1 and Good Faith Estimate and assure that your interests are protected by the terms of the Purchase and Sale Agreement and at the closing.

Business entities: Seller/Owner financing. When a business is sold, it increasingly is common for the Seller to take back what is referred to as “Seller/Owner financing”. This means that part of the purchase price for the business will not be paid in cash at the closing; rather, it will be paid by the Buyer to the Seller over time. In today’s economic climate it often is difficult for a potential Buyer to obtain the amount of Bank financing needed to permit the purchase of the business for the contract price. In those circumstances, there is a strong incentive for the Seller to finance the short fall. If this occurs, it is critically important that the Purchase and Sale Agreement spell out the terms of the financing, the security for the financing, and the remedies in the event of a default.
Whether you are selling a business or buying a business, we have the experience needed to assure that your interests are protected by the terms of the Purchase and Sale Agreement and at the closing.

We hope you have found this newsletter informative and helpful. Please call us if you, a family member, friend, or colleague requires legal services in any of the practice areas covered in our office. As always, we are here to serve our past and present clients, and we welcome new referrals.

Very truly yours,

STEVEN P. FLOMAN ALLISON M. DEPAOLA BERNARD J. KITO, III.

• A. non–payment of medical bills that should be covered by your health insurance policy;
• B. non–payment of long term disability benefits that should be covered by your disability insurance policy;
• C. non–payment of costs to fix a home that has been damaged in a fire or by water or wind and that should be covered by your homeowner’s insurance policy;
• D. non–payment of the proceeds of a life insurance policy;
• E. non–payment of the cost of nursing home care that should be covered by the terms of a long term care insurance policy;
• F. non–payment of uninsured or underinsured motorist’s benefits that should be covered by your auto policy.

An insurance policy is a contract governed by the same rules of law that govern contracts, in general. One such rule of law is that each party to the contract has a duty of good faith and fair dealing. That requirement of good faith and fair dealing applies to the insurance company.

In addition to that, Connecticut has special rules that govern the form and content of insurance contracts, and, as well, the manner in which a claim must be adjusted by the insurance company. Part of the statutory framework includes the Connecticut Unfair Insurance Practices Act, commonly referred to as “CUIPA.” CUIPA contains a specific enumeration of prohibited conduct and practices, including unfair settlement practices. Multiple violations of CUIPA by the same insurance company may be the foundation for a separate claim against the insurance company based upon violation of the Connecticut Unfair Trade Practices Act.

At about the same time the Listing Agreement is signed, the Seller also will sign a Residential Disclosure Report. This report asks a number of questions about the condition of the home, the repair history of the home, and whether the seller has knowledge of problems with particular parts of the home. State law requires that this report be completed and signed by the Seller and furnished to the Buyer in a timely manner.

When a Buyer has been found who is willing to purchase the home on terms acceptable to the Seller, a Real Estate Purchase and Sales Contract is signed by both parties. Among other provisions, the Contract will state the purchase price, the amount of the deposit, the amount of the mortgage, the closing date, the items of personal property included as part of the sales price, and any rights of way, easements or other encumbrances on title that run with the land.

Most Contracts contain an inspection contingency, and a financing contingency. In general, these contingencies allow the Buyer to cancel the contract if either contingency is not satisfied, and the Buyer notifies the Seller of this within time periods specified in the Contract. On occasion there also is a contingency that allows the prospective Buyer to cancel the Contract if the Buyer is unable to sell his/her existing home by a specified date.

One would think that the legal issues associated with buying or selling a home are simple, leading one to ask “why do I even need a lawyer” or “why do I need a lawyer anywhere except at the closing.” Although most residential real estate transactions eventually do close, it is not unusual to see disputes arise along the way, sometimes at the last minute, and sometimes even after the closing.

Here are some examples of disputes that sometimes arise along the way: areas of the home requiring replacement or repair not readily apparent from a visual or even closer inspection; delays in obtaining financing; problems with the title to the property; driveway or other neighbor encroachment issues; an inability to sell an existing home in order to fund the purchase of a new home; delays in construction; a request to take possession prior to the closing; an inability or simple unwillingness to close on the date for closing set forth in the contract; water, drainage or sewage problems discovered for the first time after closing.

The resolution of all such disputes is governed by the language of the Contract, the content of the Residential Disclosure Report, Connecticut statutory and case law, and the terms of all of the other written documents generated between the date of the Contract and the date of the closing. For those reasons, from the beginning, advice by an attorney and careful review of all documents you sign is of the utmost importance!

Legal questions often arise as you operate your business. Does the proposed new lease protect me? What is the best type of financing for my proposed expansion? What if one of my employees makes a mistake on a job? How do I protect my customer list and other confidential information? Should I merge with another company in the industry? We get along well with each other as competitors and we each bring different strengths to the table, but, what if things don’t work out?

When you are ready to retire from your business, become less active in it, or sell it completely, what is the best way to do so?