How Jackson v. NC Department of Commerce Redefined Advocacy in North Carolina Unemployment Hearings

When a person loses his or her job, that person may or may not qualify for unemployment insurance benefits under North Carolina law.  One of the primary issues looked at by the Division of Employment Security is whether the person losing their job either quit without good cause attributable to the employer or was discharged due to misconduct connected with the work.  If someone quits a job, that person is presumed to not be qualified for benefits unless he or she can meet his or her burden of showing that it was a good enough reason under the law to quit and it was a reason that is attributable to the employer.  When a claimant is terminated from his or her job, the presumption is that he or she is qualified for benefits unless the employer can show that the claimant was terminated for what amounts to misconduct connected with the work.

When this is seen as an issue by the DES, the person making that determination is called an Adjudicator.  When a determination is issued, the employer or the employee can appeal the determination, and a hearing is scheduled before an Appeals Referee for a de novo review of the facts leading up to the separation to determine this issue.  The parties present evidence in the form of sworn testimony of witnesses, documents, etc., that are considered by the referee in making a decision.

Parties to an Appeals Hearing are allowed counsel, and the attorney would be responsible for the presentation of evidence.  In general though, this is meant to be a relatively informal setting, where claimants and employers can make appearances without counsel and still have a fair consideration of the issues presented, and the appeals referee is responsible for developing the record.  Objections, in the past, were not made necessarily to preserve the record, but merely to call attention to the lack of weight a particular piece of evidence ought to be given, with, of course, some exceptions.  Other states tend to adopt this level of informality in varying degrees.  For example, in Texas, the Appeal Hearing Officer Handbook states:

When attorneys are appearing before the Hearing Officer they may wish to offer objection to testimony. At that time the Hearing Officer should explain the end result of the hearing is to obtain facts. The attorney should also be assured that the decision of the Appeal Tribunal must be supported by admissible, valid, and legal evidence and that for this reason we rarely exclude from the hearing of the Hearing Officer any evidence which is offered. In the event they insist on making the objection, the attorneys will usually be satisfied through the use of a phrase such as, “Objection is overruled and you may have your exception noted in the record.”

However, Jackson v. N.C. DOC, 775 S.E.2d 687 (N.C. Ct. App. 2015) seems to have made a radical departure from the informal nature of these proceedings.  In that case, Employer offered a written statement of a nurse not present at the hearing into evidence and Claimant failed to object to the entry of that document.  While the statement contained in the document was likely hearsay, the NC Court of Appeals held that Claimant waived her objection to the use of that document to make findings of fact because Claimant did not object at the appeals hearing.

This case has set a precedent of causing the Claimant and Employer to need to be constantly vigilant about protecting the appeals hearing record by making objections.  The impact of this could involve lengthier hearings, which are scheduled for one hour by default.  Hearings that go over the scheduled length of time are sometimes adjourned for a new date some weeks later.  The hearings themselves will likely have a higher level of formality, insofar as the hearings will likely contain more objections designed to preserve the record and argument in support and against such objections.  Authentication of documents, additional corroborating witnesses, and establishing foundation could all be necessary additions to the presentation of a case whereas before such formalities were not usually necessary.

 

Chris Wilms practices with Hopler & Wilms, LLP in Durham, NC and is a member of NCAJ’s Employment Law Section.  Mr. Wilms represents Employers and Claimants in all stages of the Unemployment Claims and Appeals process in North Carolina.

 

 

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When Making an Insurance Claim for Property Damages Don’t Forget to Include the Diminished Value of Anything Repaired but Not Replaced

When we make an insurance claim for damage to our vehicle or other property, if the insurer chooses to repair rather than replace the damaged vehicle or other item, we are entitled to be compensated for the loss in future resale value that repaired property brings compared to that which was never damaged.  You are not going to be reimbursed for your hassle, wasted time, and emotional upset, but you can and should demand payment for the economic losses that even a well-repaired collision almost certainly brings.

Technically, “Diminished Value” is the loss in “market value” that occurs when a vehicle is wrecked and repaired.  It is easy to overlook this loss because you were not, at the time of your accident and repair, thinking about selling your car and we do not usually think about our car’s “value” as a financial asset.  If the vehicle is quickly and properly repaired, it is easy to think that’s the end of it, because that is the end of it, at least until you try to sell or trade it, maybe years later.  This loss in future resale value is a virtual certainty because a reasonable consumer will not pay the same price for a wrecked, then repaired vehicle, as he or she will for a vehicle with no accident history.   Even if the repairs were done well, a vehicle will still lose value, and sometimes a lot of value.

This loss in value is particularly significant when a vehicle was seriously damaged to the point where disclosure of the wreck is required.  In North Carolina, if a vehicle sustains 25% or more in damage the seller, by law, is required to disclose the damage by checking in a field on the vehicle’s title. This obviously reduces the vehicle’s resale value since few buyers will pay the same amount for a wrecked vehicle as they would a similar undamaged model.  Even if the wreck is less substantial the individual will have significant legal exposure if the individual re-sells the vehicle and does not disclose the prior damage to the new vehicle owner, if the new owner asks about previous damage.

The concept of diminished value is recognized in our law; North Carolina courts have stated that vehicles involved in an accident suffer an inherent reduction in value, and that efficient repairs cannot return said vehicle to its pre-accident condition or value. The law simply reflects what we know:  that most car shoppers will not be interested in acquiring a wrecked and repaired vehicle and the few that are demand a hefty discount. Buyers tend to be afraid of the long-term implications of a collision as well as the negative impact on the vehicle history report.

Unfortunately, many consumers do not know their rights and are unaware that they are entitled to a check for “diminished value” in addition to the repairs on their vehicle.  Some insurance adjusters will not mention that you are entitled to this payment if you don’t remember to ask for it; some other adjusters refuse to pay it in cases in which the repairs are worth less than 25% of the car’s value.  Do not settle for this nonsense!  Even if the amount is small, you are entitled to receive it, and the insurance company cannot just argue that you should hide the fact of the repair from the next owner.

The value of your diminished value claim is equal to the difference between the “fair market value” of your property immediately before it was damaged and its fair market value immediately after it was damaged.  “Fair market value” is defined as the amount which would be agreed upon as a fair price by you when you wish to sell, but are not compelled to do so, and a buyer who wishes to buy, but is not compelled to do so.  You can determine  the fair market value through a professional appraisal; more simply, you can arm yourself for negotiating with the insurance adjuster by researching the market — get quotes from dealers, list your car on craigslist.com for sale, and easiest of all through internet searches of book values (nada.com, edmunds.com, kbb.com, etc.).  Get as many values as you can, and get them in writing.

At the end of the day, always remember that you need to watch out for your own interests, and insurance company representatives are not going to tell you everything that you may be entitled to.  Be an educated consumer and stand up for your rights.

 

Anthony D. Taibi is a partner at Taibi Kornbluth Law Group in Durham.  After graduating with Highest Honors from Duke Law, clerking, teaching law, and a stint as a transactional securities and finance lawyer, Tony decided to return to Triangle and focus his career on fighting for the rights of ordinary people through civil litigation.  For more than fifteen years, he has been a North Carolina litigation attorney; his firm concentrates in the areas of personal injury, business litigation, employment law and discrimination, workers’ compensation, unfair trade practice, and real estate and investment fraud.  Tony served as Coordinating Editor for the December 2007 Consumer Law issue of Trial Briefs, in which he also published Constructive Fraud for the Consumer Lawyer.

I don’t see my child, so why do I have to pay child support?

This has to be the number one question I get in child support enforcement court.  “I haven’t even seen this child in years, she didn’t tell me she was pregnant! Why do I have to pay support for years when I didn’t even know she existed?”

I can see why this doesn’t make sense.  How can you owe a debt based on a child that you didn’t even know existed?

Well, legally, you can.  As I often say, you might not agree with it, you might not think it’s right, but it is still the law.

First, a parent has the legal duty to financially support his or her child.  This is the starting point for every child support case.

Second, our courts have looked at the question of whether this financial support hinges upon whether you get visitation or custody.  The answer? No. Check out  Appert v. Appert, 80 N.C.App. 27, 341 S.E.2d 342 (1986); Sowers v. Toliver, 150 N.C.App. 114, 562 S.E.2d 593 (2002).

Now you have found out you have this child, let’s say she is five years old, and the child support enforcement agent is telling you that you owe thousands of dollars in arrears – back child support.  This is the second most common area of confusion for my clients.

You owe child support back from when the child was born!  Why? Because our legislature said so, that’s why.  If the monies are owed only to the custodial parent, that custodial parent can agree to have the arrearages (back child support) modified.

Sometimes the monies owed are actually owed to the government.  This is because if your child received any sort of government assistance, that creates a debt that you must repay to the state.  Generally, these arrearages are not modifiable, although there are limited exceptions.

Keep in mind these are general rules.  There are exceptions.  Child support amounts must be based upon the parent’s ability to pay, and if the amount is not reasonable, you might not be liable for nonpayment of child support.  If you are behind in your child support, you might be able to modify your obligation or add additional payments to make up for your arrears.  And if you are facing contempt charges for failure to pay child support, hire an attorney to keep you out of jail!

 

Blog post author Sarah Jessica Farber is a solo practitioner in Sanford, North Carolina, with a statewide criminal defense practice in criminal trials, appeals, and post-conviction litigation in our state and federal courts.  She was named a Rising Star by Super Lawyers in 2016, serves on the Executive Committee of the North Carolina Advocates for Justice, and also serves as Chair of the NCAJ New Lawyers Division.  For more on the Farber Law Firm, visit  http://sjfarberlaw.com/.

Please Don’t Apologize For Calling a Lawyer

If I had a dollar for every time I heard the phrase, “I’m not the kind of person who likes to sue people,” or something close to that, I could pay off my mortgage sooner than scheduled.  The context in which I typically hear this phrase is during a phone call from someone who is calling our office for the first time.  For whatever reason, the caller feels the need to distinguish himself from the mythical group of people that are thought to be litigious or looking to “scam the system.”  The effort to establish the legitimacy of the reason that lead the caller to pick up the phone and call a lawyer ends up sounding like an apology, or at least it does to me.  I find this to be a curious phenomenon because, in my experience and generally speaking, people call a lawyer for one of three reasons: 1) they need information about a particular situation; 2) the situation is more complex than they can handle on their own; or 3) they are being treated unfairly.  Each of these reasons is legitimate.  So, please don’t apologize for calling a lawyer.

Our system of laws bestows upon everyone – and I mean everyone – certain legal rights.  These rights arise in a wide variety of situations and typically involve interactions between people (for example, as in the case of divorce), between people and businesses (for instance, a person injured on the job), or between people and the government (perhaps a person seeking social security disability compensation).  For the vast majority of people these circumstances are something that they have never experienced before.  Because of that, people find themselves involved in a process that is completely foreign to them and governed by rules that are often complex and difficult to discover.  By analogy, it would be like placing me on an ice rink to play a game of hockey; since I do not know the rules of the game or the function of various team members, I will probably not be successful.  I might be able to learn as I go, but the beginning is going to be extremely tough and I will probably miss some important plays.  The better thing for me to do is to learn the rules of the game or, better still, let someone who knows the rules and how to play the game play for me.

Lawyers are trained to be well-versed in the rules that apply to their area of specialty.  For this reason it makes perfect sense that when confronted with a situation that is completely foreign or overwhelming that you should call the person who can explain it to you, provide guidance, or represent you.  Personally, I view part of my role as a lawyer to be that of a teacher.  I want my clients and the members of the public with whom I come into contact to understand the issues involved with their situation so that they can make informed decisions that are in their best interest.  I do not know of a lawyer who disagrees with this position.  So, it is my hope that you never have to call me or another lawyer.  But I also understand that in the course of human affairs it is sometimes necessary to do so.  So, if you find yourself in a situation where you need to a lawyer, pick up the phone and call a lawyer to get the information or advice that need.  And when you do, please don’t apologize.

 

Blog Author Ann Ochsner practices law at the Whitley Law Firm. When you have been injured, there are laws that protect your rights and interests. The Whitley Law Firm in North Carolina has a great respect and concern for the law, for the concepts of fairness and justice, and for their seriously injured clients.  They have offices in Charlotte, Raleigh, New Bern, Jacksonville, Kinston, and Greenville and represent clients throughout the entire state in all types of civil matters, including personal injury cases (auto accidents, slip and fall injuries, motorcycle accidents, dog bites), workers’ compensation matters (workplace accidents and injuries) and social security cases. For more information, visit http://www.whitleylawfirm.com/ or call 1-800-598-0456.

 

 

Liability Claims for Defective Products – What you Need to Know

In North Carolina, claims for injuries arising out of defective products are governed by statute.  Generally,  a product manufacturer can face liability for defective design, negligent manufacture, or inadequate warning or instruction.

A “defective design” claim extends to all identical products within a given product line.  To prevail on such a claim, an injured party must prove that the manufacturer unreasonably failed to adopt a safer, practical, technically feasible and reasonable alternative design that would have prevented or significantly reduced the risk of harm while retaining the overall usefulness of the product.  This analysis involves a balancing test requiring several factors be weighed to determine potential liability of a manufacturer.  Engineering analysis is routinely required.  Alternatively, an injured victim can seek to prove that when control of the product left the manufacturer, its design was so unreasonable that had a consumer known of its dangers, the consumer would not have used the product.  The manufacturer is protected from liability if the products liability claim is based upon an inherent feature of the product which cannot be eliminated without rendering the product useless, and which is commonly known as a feature of the product.  Additionally, the manufacturer of a prescription drug cannot be held liable if a feature of the drug cannot reasonably be made safe, and adequate warning and instruction has been provided.

A “negligent manufacture” claim extends only to a given product or set of products within a product line.  Such a claim recognizes that there is no defect in the design of the product, but due to some manufacturing or production error, the product was not produced in accordance with its design.  A claim based on “negligent manufacture” is premised on the production error resulting in some hazard associated with the product that would not be foreseen by the ultimate consumer.  A manufacturer may not be held liable under this theory if the product is used contrary to express and adequate instructions or warnings accompanying the product, or if the consumer was aware of the hazard associated with the product and still elected to use the product in a manner that would expose the consumer to the hazard.  Additionally, a manufacturer will generally not be liable if the product was altered or modified by someone else, and such alteration created the hazard.

An “inadequate warning or instruction” claim must show that the product presented an unreasonably dangerous condition the manufacturer knew would exist without adequate warnings or instructions for use of the product.  Additionally, a manufacturer may be held liable if the manufacturer becomes aware that uses of the product create unreasonable risks of harm even after the product leaves the control of the manufacturer.  In such circumstances, the manufacturer may have a duty to recall the product or provide instructions to those who are already consumers of the product.  The manufacturer will not be liable for an open and obvious risk that is common knowledge.  Special rules also apply to drug manufacturers.

 

Based in Charlotte, North Carolina, Brown, Moore & Associates, PLLC, represents personal injury and medical malpractice victims throughout North and South Carolina. The firm’s attorneys have in-depth experience in motor vehicle accident and workers’ compensation litigation, and are known as strong advocates for their clients’ interests. To identify all available legal options, call 800-948-0577 or use this convenient online contact form.

Constitutional Claims in the Wake of Montgomery v. Louisiana

Earlier this week, Eric Zogry blogged about the United States Supreme Court decision in Montgomery v. Louisiana, 577 U.S. ___ (2016), which made the holding of Miller v. Alabama, 567 U.S. ___ (2012) retroactive. The upshot of the decision is that approximately 79 inmates in North Carolina need to be re-sentenced. But how should those sentencing hearings work? Just after the United State Supreme Court issued its decision in Miller, the North Carolina General Assembly passed “An Act to Amend the State Sentencing Laws to Comply with the United States Supreme Court Decision in Miller v. Alabama.” By its terms, the Act applies to “any sentencing hearings held on or after” July 12, 2012. So it would appear to apply to sentencing hearings for defendants entitled to relief under Montgomery v. Louisiana. The Act also permits defendants to present mitigating circumstances to the court including, among other things, the defendant’s age at the time of the murder, immaturity, and exposure to familial or peer pressure. The Act then directs the sentencing court to consider the mitigating circumstances and determine whether, “based upon all the circumstances of the offense and the particular circumstances of the defendant, the defendant should be sentenced to life imprisonment with parole instead of life imprisonment without parole.”

Defense attorneys rightfully view the decision in Montgomery v. Louisiana as a victory for defendants who were sentenced to life without parole for first-degree murder convictions that arose when the defendants were juveniles. But the case for these defendants is not that simple. Look carefully at the Act and you’ll see at least two arguments that defendants who are entitled to sentencing hearings after Montgomery v. Louisiana should make before they are sentenced under the Act. These two arguments, which are described below, are also the subject of an appeal that is currently pending in the North Carolina Court of Appeals.

 I. Cruel and Unusual Punishment

The first argument to consider is an Eighth Amendment claim that the Act contains a presumption favoring sentences of life without parole. According to the Act, the sentencing judge must determine whether the juvenile should be sentenced to life in prison with parole “instead of” life in prison without parole. The use of the phrase “instead of” indicates that the default sentence under the Act is a sentence of life without parole. Further, the Act puts the burden on the defendant to demonstrate circumstances that would reduce the sentence. In other words, there is no burden on the State to present aggravating factors that would support the more severe sentence of life without parole – a sentence that the United States Supreme Court has stated should be “uncommon.”

 II. Due Process

The second argument to consider is a claim that the Act violates Due Process because it fails to provide meaningful guidance to sentencing judges on how to choose a sentence. The Act does not indicate how the sentencing judge should weigh the mitigating circumstances before deciding on a sentence. Instead, the judge must simply “consider” the mitigating circumstances in determining the sentence. Additionally, there is a risk that the sentencing judge could use mitigating circumstances to justify a sentence of life without parole. For example, although the juvenile might present evidence of good grades to show the potential for rehabilitation, the sentencing judge might rely on that evidence to support a sentence of life without parole on the ground that the juvenile had the ability to appreciate the risks and consequences of his conduct.

Conclusion

It is imperative that defense attorneys assigned to represent defendants at sentencing hearings under Montgomery v. Louisiana carefully consider these and other constitutional arguments before the hearings are scheduled. Appellate courts routinely state that constitutional issues that are not raised in superior court “will not be considered for the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86-87 (2001). If these constitutional arguments are not made in superior court and the sentencing judge imposes a sentence of life without parole, appellate courts will not consider these arguments on appeal.

 

David Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services. OAD staff attorneys represent indigent criminal defendants on their appeals to the North Carolina Court of Appeals and the North Carolina Supreme Court. He can be reached by email at David.W.Andrews@nccourts.org.

 

Montgomery v. Louisiana: Retroactivity and Reinforcement

On January 26, 2016 the United States Supreme Court determined in Montgomery v. Louisiana 577 U.S. ___ (2016) that the decision of Miller v. Alabama, 567 U.S. ___ (2012) applies retroactively to juveniles who are currently serving life without parole sentences. Miller held that, even for convictions of first-degree murder, mandatory sentences of life without the possibility of parole are unconstitutional for juveniles (i.e., defendants who were under the age of 18 at the time of the offense). The result of this decision was that many states, including North Carolina,1 changed their statutes to create an opportunity for parole for juveniles serving life sentences. When Miller was first handed down, it was unclear from the Court’s decision whether the holding could be applied retroactively to defendants currently serving sentences of life without the possibility of parole. Montgomery clarified that the Miller decision can be applied retroactively and may lead to the review of sentences for former juveniles currently incarcerated under life sentences in North Carolina and around the country.

Beyond the direct impact of Montgomery, attorneys should take note of the Supreme Court’s consistent theme of adolescent development and criminal culpability. The decision in Montgomery marks the fifth time in ten years the Court has declared “kids are different.”2 Specifically in Montgomery Justice Kennedy contrasts “transient immaturity” to “irreparable corruption,” reinforcing the idea that criminal responsibility for the accused under 18 should be considered on an individual basis.

While Montgomery, Miller, Graham and Roper focus on punishment, the same analysis can be applied further in juvenile and criminal proceedings. Both juvenile and adult defenders should make this contrast a go-to strategy in their playbook. For any clients under the age of 18, defenders should consider how developmental advocacy strengthens their case. For example, does your client’s age and/or development impact capacity to proceed in the case? Is there a specific intent element to the charge that is vitiated due to a lack of ability to form the intent? How is incarceration really “getting the intention” of the youth, while imprinting permanent, negative physical and emotional experiences?

For more information on Montgomery and its potential impact, please see the following link.

1 N.C.G.S. 15A-1340.19A, -1340.19B, -1340.19C
2 Roper v. Simmons, 543 U.S. 551 (2005) (eliminating the death penalty for juveniles), Graham v. Florida, 560 U.S. ___ (2010) (eliminating life without parole for non-homicides for juveniles), J.D.B. v. North Carolina, 564 U.S. ___ (2011) (age is a factor in determining whether a juvenile is “in custody” under Miranda), Miller v. Alabama, 567 U.S. ___ (2012)

 

Eric Zogry is the ‎Juvenile Defender at Office of the Juvenile Defender, Office of Indigent Defense Services in Raleigh. To contact Eric Zogry and learn more about the Office of the Juvenile Defender visit https://ncjuveniledefender.wordpress.com/.