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My Insurance Company cancelled…what are my rights?

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My Insurance Company cancelled me but I never got notice…what are my rights?

Getting into an automobile accident is terrifying enough. Am I ok? Is the other driver ok? How long will it take to fix my vehicle? What are the costs going to be? Am I going to be sued? Just imagine having these thoughts in your mind only to find out that your insurance company cancelled your coverage days earlier and you had no idea. The good news is that there is protocol here.

In order for your insurance company to cancel your coverage they have to follow certain rules. First, written notice of such cancellation must be actually delivered or mailed to the insured or to his representative in charge of the subject of the insurance not less than 30 days prior to the effective date of the cancellation except when termination of coverage is for non-payment of premium (See LSA R.S. §22:636).

So what happens if you fail to pay your premium or something with your auto draft goes haywire and the bill does not get paid? The insurance company by mailing or delivering to the insured written notice stating when, not less than ten days thereafter, such cancellation shall be effective. The insurance company only has to show that it sent notice to your last known address.

So the insurance company sends the notice to your last known address but you have since moved or for whatever reason you never receive the notice. The good news here is that while the insurance company is granted a presumption that you received the notice and chose not to renew, that presumption is rebuttable, and upon affirmative proof to the contrary you can actually win the fight against your insurance company. Now that will require legwork and time and money but in an expensive case with lots of exposure it could be well worth your time and money. So don’t lose hope if you never received your notice – it just means you have work to do.

I got this expunged and its still showing up.

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When you seek employment and the employer performs a background check, the Consumer Reporting Agency (CRA), must follow the regulations of the Fair Credit Reporting Act (FCRA). IF there are errors in the report that caused the loss of employment, you are owed damages and the atorney is owed fees.

Under FCRA, the CRA (this is the group that performed your background check for the employer) must follow reasonable procedures to assure the maximum possible accuracy of the information about you. If the CRA fails to do so they may be liable for damages.

Pursuant to 15 U.S.C. 1681(k) when a consumer reporting agency provides a consumer report for employment purposes that includes public record information that is likley to have an adverse affect upon a consumer’s ability to obtain employment, the consumer reporting agency must either:

  • Notify the consumer that the public reord information is being reported, together with the name and address of the person to whom the information is being reported, or
  • Maintain strict procedures to insure that the information it reports is complete and up to date.

Louisiana Code of Criminal Procedure was amended in 2014 to include this liability:

“A private third-party entity that publicly disseminates criminal history information in violation of this Article after having received notice as provided for in Paragraph B of this Article, may be liable for any actual damages, court costs, and attorney fees that are incurred by the person whose criminal history was disseminated.” La. Code Crim. Pro. Art. 974(c).

So you have both federal and state law remedies.

Also, the Equal Employment Opportunity Commission (EEOC) has released guidelines on how employers use criminal records in making employment decisions. To view these guidelines visit your nearest EEOC field ofice or go online to www.eeoc.gov.

Part of being protected is simply knowing your rights, be aware that you have this protection and that you have this potential remedy. Once you aware of this right you can take steps to prevent it or to vindicate it should you feel you have had your history wrongly reported.

PART I: Can I get this expunged?

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One of the most common questions I get asked is in reference to expungements. In this hyper competitive and global economy an employer can know everything they want to know about you by looking at three things: your credit score, standardized test scores, and your criminal record. Its a somewhat concerning truth that we as human beings and all of our fascinating intricacies and personalities can be boiled down so simply but it is a harsh truth that must be faced.

Your criminal record can haunt you for a much longer time than you may realize. Whether it was a mistake we made when we were young or a recent temporary lapse in judgment, the anchors we drop in the criminal justice system can have very long ropes. Those ropes can hold us back from promising careers, educational opportunities, and rewarding lives. So what can you do to untie yourself from that anchor? In Louisiana, you may have the option to get your conviction expunged. First, it is important to note what an expungement is and what it does.

An expungement is a judicial order that hides or erases a criminal conviction/charge/or arrest in very specific circumstances. What makes an expungement so difficult is the many agencies that have to be coordinated in order to achieve the goal. As an example, lets say that someone is arrested, charged, and convicted of a crime. That person will have several numbers in the criminal justice system that they will be trying to get erased, and they are:

  • AAID – the arresting agency will have an arrest ID number
  • Book In Number – the local parish sheriff will have a book in number
  • DA Number – assuming charges are accepted the DA will have an internal number assigned to your case
  • Docket Number – the clerk of court will assign a docket number to your case
  • Louisiana State Police – compiles all arrests made in the state for reporting to the FBI
  • FBI – will input your arrest and conviction into a national database known as “NCIC”

So what is eligible for expungement? First, if you are merely arrested for a crime and not charged you can have the arrest expunged. Second, if you are arrested and charged but those charges are later dismissed you can have the arrest and charging documents expunged. Third, lets say that you are arrested, charged, and finally convicted. In regards to a conviction, you can get these expunged in a specific set of circumstances and for the purposes of Part 1, I will focus solely on misdemeanor convictions.

First, if you were convicted of a misdemeanor but that conviction was deferred under La Code of Crim. Pro. Art. 894, then you are eligible for an expungement just as soon as you successfully complete your probation. What if your sentence was not deferred under Article 894? Your attorney can motion the Court to re-sentence you under Article 894 so as to make you eligible for an expungement as soon as you complete your probation. (See Article 881.1(a)(2)).

How do I know if I am eligible for an 894? A quick way to know is that you can only have one 894 every 5 years. So if you have used one in the past 5 years, this new charge will not be able to be deferred under Article 894.

NOTABLE CAVEAT: you can have only one 894 every 10 years if it is for the offense of Driving While Intoxicated “DWI”.

So then, what do you do if you are not eligible for an 894? The good news is that as it relates to misdemeanors, any misdemeanor is eligible for an expungement after 5 years have elapsed. Now, this 5 year period is calculated after probation ends and you must have no felony charges during that time period or any felony charges pending.

The million-dollar question: Who can see my record? Assuming that you are eligible for an expungement and that the expungement is granted, do you have to still “check the box” when asked if you have been convicted of a crime? I hate to tell you this but…it depends. It varies on a case-by-case basis, however for most people the expungement will help them to no longer have to check that box. However, most state agencies can see all felonies, even if they are expunged and there are several specific agencies that can request a full criminal record (regardless of expungement) and they are:

  1. Any law enforcement agency;
  2. Criminal justice agency;
  3. The Louisiana State Board of Medical Examiners;
  4. The Louisiana State Board of Nursing;
  5. The Louisiana State Board of Dentistry;
  6. The Louisiana State Board of Examiners of Psychologists;
  7. The Louisiana State Board of Social Work Examiners;
  8. The Emergency Medical Services Certification Commission;
  9. Louisiana Attorney Disciplinary Board;
  10. Office of Disciplinary Counsel;
  11. The Louisiana Supreme Court Committee on Bar Admissions;
  12. Any person requesting a record pursuant to R.S. §15:587.1 (which deals with the protection of children).

In short, expungements can be of life altering benefit but unfortunately they are intricate and complicated. No blog can substitute for qualified legal counsel to guide you through the process. Stay tuned for Part II dealing with felonies.

What are My Rights in the Workplace? Continuing Series….

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Part of my practice involves workplace discrimination and employment law. The area is vast and the rights are many. However, what I have come to find is that many pepople are unaware of their rights and so I view part of my job here as educational and part as advocate. Commonly known as Title VII, the majority of anti-discrimination law finds its basis in this area of federal law. Many states have enacted statutory regimes that supplement and/or mirror the federal law. Louisiana is no exception in this area. Louisiana has adopted what is commonly referred to as the Louisiana Employment Discrimination Law (LEDL), which mirrors Title VII in many ways and has some key differences.

First, it is important for people to note that in employment discrimination cases there are very different and complicated requirements for employees who wish to file suit. Therefore, consulting an experienced employment attorney in this area of law is crucial. For example, Title VII requires plaintiff’s to both exhaust their remedies administratively first before filing suit and do so on a very different timeline than what is normally considered the standard “file suit before one year lapses.”

Second, there are many forms of discrimination and many different protected classes. I would do a great disservice if I simply mentioned “discrimination” and moved to a different topic. In the area of employment law and discrimination within the workplace there are quite literally dozens of different statutory schemes that help to enforce different rights. Therefore, for the purpose of this entry I will focus on discrimination by disability.

Disability discrimination was prevented in the workplace and in society at large for the first time on a comprehensive scale when Congress passed the Americans with Disabilities Act of 1990. Louisiana has its own version within the LEDL. A key component of any disability discrimination case is that if a person has a qualifying disability the employer must reasonably accommodate that disability. The ley word here and the source of much litigation is “reasonable”. Just what is a reasonable accommodation? As a small example, if someone has a visual impairment the company should expect to pay for visual enhancers such as large monitors, back lit screens, etc…However, the company might not be responsible for experimental and cutting edge technology. The cost and burden to the employer are key factors when assessing “reasonableness.”

NOTE: this law only applies to employers of over 15 people

One thing employees need to be on the look out for is retaliation. Employers often do not like hearing the news of an employees disability and an employee can find themselves very quickly being subject to either subvert or overt attempts at retaliation, isolation, or punishment. All of these actions are prohibited and employees are protected from employers acting in such a way. However, those claims are for another post!

In Louisiana, you can file suit both under state law and federal law for disability discrimination. It is ultimately a litigation strategy to discuss with your counsel. In Louisiana you do still have administrative requirements to meet before filing suit, however, it is irrelevant whether you are filing with the Equal Employment Opportunity Commission or the Louisiana Human Rights Commission as both agencies reciprocate filings so that “filing with one as if filing with both”. Therefore, by filing one administrative complaint, provided it is timely, should satisfy your administrative requirement.

Does Louisiana have a lemon law?

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Most if not all states have a “lemon law”, and Louisiana is no exception,  however, in Louisiana we are lucky in that we have a stronger law as well that protects consumers known as Redhibition. Many people know that Louisiana adopts much law from our french heritage and roots (in fact people mistakenly say all the time that Louisiana has a “Napoleonic Code”). While we do have a lot of french influence in our law, and we do have a civil code, we do not have a napoleonic Code.

Redhibition is a legal term of French root origin which cimply means, “avoidance of a sale on account of hidden defects.” If you buy something with a defect and that not so apparent or “hidden” defect renders the product so useless or inconvenient that you never would have purchased the item had you known of the defect, then you are entitled to sue to rescind or undo the sale. If the defect is not so severe as to warrant a recission of the sale the court may still award you a reduction in price.

So what are your obligations as a consumer? The law requires you to give the seller notice and a reasonable opportunity to repair the defective item. However, after you have given the seller the opportunity to repair the defect and the problem persists you have the right to sue. A consumer is not required to “deal with” a defective product so do not fall prey to the claim by sellers that it is simply the “best I can do” or “there is nothing else to do.” If that is the case then you have the potential for a redhibition suit.

Under the redhibition laws, you must merely prove that the item failed to operate in the intended manner during normal use and that you have given the seller and manufacturer notice and reasonable repair attempts. Its quite simple as there are no minimum number of repairs required or minimum days out of service.

Finding The Right Lawyer For You

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Anytime you find yourself facing a legal dilemma, one of the first things to do is find the right lawyer for you and your needs. As daunting of a task as it may be, finding a lawyer is not hard–just drive down the busiest street in your city and you’ll see an influx of billboards advertising the local firms around you; however, finding the right lawyer could be a bit more difficult.

One of the many things we hear from our clients is that they resort to searching the Internet to pinpoint them in the right direction. After a quick search through Google or Yahoo, clients will often times find themselves overwhelmed by the number of choices that they find with sites such as Avvo and Lawyers.com. As great and helpful as those sites are to potential clients and attorneys who advertise with them, it doesn’t make it any easier to sift through each lawyers information and decide which one best fits you.

Some of the things you, as a potential client, need to consider and ask while you’re searching are:

  • “What type of attorney am I looking for?”
    • If you believe you were wrongfully terminated at your previous job, you want to contact a lawyer who dedicates the majority of his or her time to working in employment law. Additionally, it’s always important to ensure that the lawyer you’re potentially going to hire is licensed to practice law in your area. Lawyers are licensed on a state-to-state basis. Simply put, if you live in Texas, but you’re DWI occurred in Louisiana, you’d need to find an attorney in Louisiana to help you. Further, even if licensed in your state, it’s usually preferably to hire an attorney who often works in the specific court your case may be heard in. They will likely be familiar with the judges, prosecutors, and opposing attorneys you will encounter.
  • “How much money am I willing to spend on this case?”
    • This is always a touchy subject with clients when they come into meet any potential law firm. Money is always going to be important to everyone involved and, often times, clients try to “get the most bang for their buck.” However, one of the biggest red flags to look for when hiring an attorney is to be careful of attorneys who promise to resolve your legal matters at a fraction of the cost of the other attorneys in their local market. It is often said that you get what you pay for, and we believe that to be especially true in the legal world. That said, the cost involved in any legal matter will vary on a case-to-case basis. For example:
    • If you are faced with a divorce that with child custody and/or community property implications, and the other party doesn’t appear to want to meet you halfway, things could get expensive (this is what many would refer to as a “contentious” divorce). On the other hand, if you and your soon-to-be ex-spouse are seeking a divorce and don’t have children and have prematurely agreed on how your belongings would be split, this case could potentially be significantly cheaper than a contentious divorce case. In the criminal realm, if you have been charged with a misdemeanor crime,, the price for an attorney will typically be cheaper than if you were charged with a felony. The more severe the alleged crime, the more lawyers in your area will charge.
  • “What’s this lawyer’s reputation look like?”
    • When hiring an attorney, you want to consider your agreement with your attorney as an investment in yourself, and one of the main things to do when investing is to ensure that the company you are investing in is both credible and honest. The same goes for a lawyer. The best way to verify that the lawyer you’re about to sign an engagement letter with is credible and honest is to research their background on any local Attorney Disciplinary Board (for example, in Louisiana, we have the Louisiana Attorney Disciplinary Board https://www.ladb.org to turn to as a helpful resource).
  • “Does this attorney even care about me?”
    • Because attorneys are professionals who often specialize in niche areas, their services tend to be more expensive than your average business professional; however, that does not–and should not–allow them to slack off when it comes to their work product. It’s always important to feel welcomed by the firm or attorney you retain. If the attorney or their staff do not appear as though they care about your needs, it’s easy to grow weary and unsettled about whether or not they are working diligently towards the betterment of your case.

Though searching and hiring an attorney to assist you during times of need can be exhausting and overwhelming, it’s important to ensure that the attorney you choose has your best interest at heart and is willing to invest as much time and effort into you as you have with them.