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E-Mails - Deleting May not be Enough
Almost everyone who has a
computer connected to the internet knows what e-mail (electronic mail)
is, and most have sent or received e-mails at work, at home, or
wherever. For reasons unknown, many e-mailers seem less inhibited when
writing an e-mail than they normally would with a regular letter.
But if the e-mail was never printed and both the sender and receiver deleted
it from their computers, no harm, right?
Maybe plenty, since deleting
the e-mail (or any other document or file from your computer usually
does not eliminate it from your personal computer. Instead, the file is
stuck into an unallocated part of the hard drive. The computer retains
the information, and a skilled computer searcher in the field of data
forensics can still find it. This is becoming an increasing problem for
businesses, especially ones that do not have written policies regarding
what the company's computers can be used (and not used) for, as well
as a policy regarding deleting files and back-ups. If the business
becomes involved in a lawsuit, this policy (or lack of it) can make or
break’ a case.
Soon after a commercial lawsuit starts, the parties
engage in discovery. This is a process to learn, or discover, facts
about the other side's claim or defense. The discovery process can
include documents in any form, including electronic. Since a lot of a
business's documents may be stored on its computers, these are fair
game.
How would a company's computer use policy have any effect on this?
Because of the possibility for an adverse inference’ instruction to the
jury. When a party in a lawsuit has some piece of evidence (documents,
e-mails, pictures, etc.) and fails to preserve it, a jury is allowed to
infer that the evidence must have been damaging to the party that allows
the evidence to be spoiled (destroyed, lost, etc.). However, if the
company has a written policy in place regarding how long electronic
documents are to be kept before being destroyed, and the employees
follow the policy, it cannot be vilified for following its procedure and
destroying the evidence. Therefore, a little planning in advance by
the IT department can save a lot of legal headaches down the road.
Source: Michigan Bar Journal.
Insurance Claims (or, Should I trust the
Adjuster and Insurance Company
Doctors?)
Many insurance companies and their claims adjusters are on the up and
up, and try to make a fair determination of what is right when a policy
holder makes a claim for insurance payments. The adjuster must
determine that the claim is legitimate and within the policy (If it is
not, the insurance company will not be in business for very long).
When
a claim such as disability is submitted to an insurance company, it is
assigned to an adjuster. The adjuster must make a determination, and when
medical issues are involved, the adjuster will often require the policy
holder to appear for an "independent medical examination." However,
aside from the seemingly endless paperwork and red tape that can be so
annoying when it comes to filing insurance claims, there can be
something more sinister lurking behind the seemingly routine processing
of your claim.
There are some insurance companies, adjusters and/or
doctors who are not interested in making a fair determination. Rather,
they see their role as denying virtually every claim, legitimate or
otherwise. If this happens to you, you are not defenseless.
The
insurance company, and any doctor that is paid by the insurance company
to examine you, is still held to reasonable standards, and must satisfy
these standards. When they do not, there can be hell to pay.
In a
recent federal court case, Western District of Michigan Judge Richard
Enslen cut right through the BS. In the case, a woman who had filed a
long term disability claim was initially being paid, but later denied
after the plan administrator decided to review her claim again and then
determined that she was not disabled. She brought suit. The judge's
opening words in his opinion is a message we should all be aware of:
"Caveat Emptor! This case attests to a promise bought and a promise
broken... [the plaintiff had multiple disabilities which prevented her
from work of any kind]... The plan and insurance language did not say,
but the world should take notice that when you buy insurance like this
you are purchasing an invitation to a legal ritual in which you will be
perfunctorily examined by expert physicians whose objective is to find
you not disabled ... Fortunately, the law... does not allow the
purveyor of such empty promises to win the day."
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Judge Enslen explained
his rationale: "First of all, the claim administration displayed was
unprincipled, bias[ed] and craven. As can be seen readily from the
claim history, this claim was not selected for review because of
questions about the Plaintiff's ability to work.... [but] because
Plaintiff had not yet qualified for social security benefits - meaning
[Defendant had to pay out more without Social Security to offset some of
the payments]. The claim administration was both grossly negligent and
driven by financial motives irrespective of the binding contract/benefit
language."
And finally: "...there was an independent medical review [in
which only one of three reviewing doctors ever met Plaintiff, and then
for only five minutes] which unreasonably disregarded the opinions of
treating physicians and lacked a rational basis for a finding other than
disability."
After these words, it was not a surprise that Judge Enslen
ruled in favor of the Plaintiff. Sometimes, the law does a great job of
serving and protecting us from injustices like this woman had to endure.
If you are facing mistreatment from an insurance company, please let
us know if we can help.
Loucks v Liberty Life Assurance Company of Boston.
CASE IN POINT: Mitigating Damages
When one party to a contract breaches
(breaks) a contract, the other party is entitled to receive damages to
the extent that the breach caused the damages. In the case of a broken
employment contract, the wrongfully terminated employee is to be fairly
compensated for the breach. In essence, this equates to the amount of
salary and benefits that the employee would have received if the
contract had not been broken.
Does that mean that the employee can just
sit on a couch until the contract was supposed to finish and eat
bon-bons?
A recent Michigan Court of Appeals case makes clear that a
wrongfully terminated employee has a duty to mitigate (soften or
alleviate) the damages, but that duty only goes so far.
Mr. Elder had
been the general manager for a Macomb County auto dealership since
1984, and had a written employment contract which provided that so long
as the dealership had gross profits of more than $150,000 each year, Elder was
entitled to 25% of the dealership's gross operating profits. In 2001,
the dealership fired him, and Elder sued the dealership for wrongful
termination of his employment contract. Elder alleged and was apparently
able to prove that the Defendant wrongfully breached his just cause’
contract (the Defendant lost the argument that the relationship was
terminable at will). The jury awarded him over $8 million dollars,
almost all of which was for lost future earnings.
The dealership
appealed, and among other issues, argued that Elder failed to mitigate
his damages. The mitigation rule obliges a wrongfully terminated
employee to make reasonable efforts to find, and if offered, to accept
employment that is substantially similar to the position from which the
plaintiff was fired. The factors used to determine "comparable
employment" include type of work, hours worked, location, compensation,
job security and working conditions. The compensation earned at another
job would offset some (or all) of the damages caused by the original
employer. Elder had been contacted by another dealership about becoming
its general manager, but turned it down because he felt the pay would
have been too low. Specifically, Elder testified that an offer of
$90,000 per year and 11% of the dealership's profits was insufficient
because the other dealership's profits were "nothing."
Accepting that
the other dealership's offer was lower than he was earning from the
Defendant, the issue was raised that the judge should have instructed
the jury on the "lowered sights" doctrine. Under this doctrine, a
wrongfully terminated employee who is unable to find comparable work
after a reasonable period of time is required to "lower his or her
sights" and consider accepting other available employment even is the
pay rate is lower. However, the Michigan Court of Appeals ruled that
the "lowered sights" doctrine is not the law in Michigan, and turned
down the appeal. The jury's verdict was affirmed.
Elder v Mike Dorian Ford.
REFERRALS
If you have been pleased with the service and professionalism
you have received from our office, it would be greatly appreciated if you
passed the good word along. Referrals are always appreciated and
encouraged, and we look forward to the opportunity of being of service
to your associates and friends. If we can not immediately service
their needs, we will be happy to refer them to the appropriate attorney
specializing in their specific area of need.
However, if you have not been pleased, contact
us directly!
David B. Forest, JD, MBA
Attorney and Counselor at Law
(586) 532-6100
www.forestlaw.com
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