Personal Injury FAQ
Q. I was seriously injured in an accident. Who will pay my bills?
A. Massachusetts is a no-fault state. This means that, if you were injured in an automobile accident, you are entitled to medical benefits of up to $2,000 if you are covered by a private health insurance plan and up to $8,000 if you are not. The $8,000 benefit limits also covers any lost wages caused by the accident. Under the Massachusetts no-fault law, your rights to recover against the person who or entity which caused your injuries are somewhat limited by statute, MGL c. 231, § 6D, which is designed to prevent individuals with relatively minor injuries from making claims. You may be able to sue the responsible person if your medical expenses exceed $2,000 or if you suffer, in whole or in part, loss of a body member, permanent and serious disfigurement, loss of sight or hearing, a fracture or if a loved one dies as a result of the accident. If you were injured on the premises owned by another, your medical expenses may be covered by the MedPay coverage insuring the property if your injuries were caused by the negligence of the owner or person in control of the property.
Q. I was not aware of my injury right away, but some time has passed and now I think I might be suffering from an injury related to an accident, encounter with a defective product, medical procedure. What should I do?
A. Accident-related injuries are sometimes not immediately noticeable. Massachusetts law recognizes that not all injuries are immediately apparent and the law generally provides that you have up to three (3) years after an accident, encounter with a defective product or medical procedure to file a personal injury lawsuit, subject to some exceptions and limitations. If you are feeling discomfort after an accident or medical procedure or if you feel that you have been injured by a defective product, seek medical treatment immediately and document the nature of your injury. You should notify your health insurer and, if your accident resulted from a motor vehicle accident, you should notify your car insurer.
Q. I was injured as a result of a defect in a product. Can I recover for my injuries?
A. A manufacturer or vendor of goods is liable for an injury caused by defective merchandise that it has provided for sale.
When individuals are harmed by an unsafe product, they may have a claim against the person or entity that designed, manufactured, sold, or furnished that product. In Massachusetts, an injured party’s cause of action may be based on a theory of negligence or breach of warranty. In either case, it is incumbent upon the injured party to establish that the product was dangerous as a result of a design or manufacturing defect. Accordingly, if you feel that you were injured as a result of a defective product, please preserve and do not reuse the product until you have contacted an attorney.
Q. How long do I have to file a lawsuit?
A. In Massachusetts, the a statute of limitations for filing a claim for negligence or breach of warranty is three (3) years from the date on which the cause of action accrues. There are various exceptions, however, including claims against the Massachusetts Bay Transportation Authority [two (2) years] claims; claims alleging a violation of MGL c, 93A [four (4) years]; and other statutorily-based claims. A claim against a municipality must comply with various statutes that require notification as a prerequisite to suit.
It is advisable that an injured person seek legal representation as soon as possible in order to ensure that his/her rights to recover resulting damages are protected.
Q. I was seriously injured in an accident. What should I do?
A. When you are in a serious accident it can be hard to focus on anything other than the physical and emotional after-effects. However, it is important to obtain as much information as possible for evidence in any later lawsuit or to ensure an adequate insurance settlement. If you have suffered injuries due to a car, truck, or motorcycle accident, move your vehicle out of the road to prevent further accidents if it is safe to do so. If you are able, you should collect:
Names and contact information of possible witnesses
- Contact information and insurance information of all participants, including license plate number for other drivers and vehicle owners
- Details about the accident scene, such as the position of the vehicles, weather and road conditions, traffic signs and speed limits
- Photographs of the accident scene and vehicles involved, if possible
In product liability cases, preserve the product or ensure that the product is not altered until you have contacted one of our Boston product liability lawyers.
In addition, it is important to protect yourself. Report any automobile accident to the police, especially if you believe it was caused by another driver's negligence or wrongful act. You should also notify your insurer. If you have been injured, seek medical attention, and be aware that although many injuries will not present symptoms until later, a good physician may discover them early on. If you do not feel injuries directly after the accident but do feel symptoms later, notify your insurance company and seek medical attention as soon as possible.
Business Formation FAQ
Q. What are some of the more important issues that people face when going into business for themselves?
A. Successfully operating your own business requires an understanding of the risks involved, so it is important to consult a business lawyer in Boston. Most small businesses do not succeed in the long run. Some of the reasons for failure include:
- Lack of a business plan that thoroughly addresses all of the "what if's"
- Taking on partners when you don't really need to do so
- Not understanding the business or the business marketplace
- Lack of capitalization and underestimating the costs of doing business
- Failing to take into account tax liabilities
- Trying to cut corners by trying to do everything yourself
- Not relying on or taking advantage of professional advice
- Underestimating the competition
- Inability to effectively manage the business
- Not thinking through your long term goals and an exit strategy
From a legal perspective, the problems that most often arise include:
- A failure to comply with licensing requirements or other regulations
- Lax internal procedures and accounting standards
- Not staying on top of payables and receivables
- Labor and employment issues, including sexual harassment or discrimination claims
- Underestimating and failing to pay tax liabilities, which notably include payroll taxes
- Getting sued, with the risks of being buried in costs of litigation as well as being liable for any judgment that may be entered against you or the business
- Possible criminal liability exposure for violating the laws regulating your business
A failing business may create significant personal exposure to the business person as follows:
- Personal guarantees on bank loans and other obligations of the business
- Unpaid taxes assessed against the business, including interest and penalties
- Other continuing or long term obligations of the company, which notably include office and equipment leases
- Pending lawsuits in which you are named personally as a plaintiff or defendant
- Investigations by governmental agencies
All of these risks underscore the need for proper planning before you go into business. This planning should include using the right business entity to shield you from the potential liabilities of operating a business.
Q. Under what different forms may I operate my business?
A. Sole Proprietorship: One way to start up a business is as a sole proprietorship, in which you conduct business in your individual capacity rather than through a legal entity. You may operate the business in your own name or you may operate under a fictitious name, known as a "dba." Before legally doing business under a fictitious name, you are required to file a DBA certificate in the municipality or county where your business is located. Under this form, the business person is personally exposed to liability. Insurance policies can be purchased to provide protection, but there may be instances of uninsured claims or excess liability that may put the business person’s personal assets at risk.
Corporation: A corporation is a legal entity that the law treats as a "person" in the sense that the organization has its own corporate identity and existence. As a separate legal entity, a corporation serves as a shield between the owners and third parties doing business with the organization. So long as corporate formalities are observed, the corporate shield makes it difficult for third parties to "pierce the corporate veil" to go after the owners. Instead, creditors and other third parties can be limited to going after the assets of the corporation. A corporation also has its' own name and identity separate from the owners. It pays taxes and has the ability to contract. It can own property. A corporation can sue and be sued. In some instances, a corporation can be charged with and convicted of crimes. Corporations must be registered with the state in which their office is located and with any other state where it conducts business.
Partnership: A partnership is an arrangement involving two or more people undertaking a business venture as co-owners, with the intent to make a profit. The simplest type of partnership entity is known as a general partnership. Forming a general partnership is the easiest way to go into business with another person. But the simplicity of a partnership can be a problem, so careful planning is important. One of the principal drawbacks of a general partnership is that a general partner can be held responsible for all debts and liabilities of the partnership. Thus, a general partner with only a one percent interest in a business could still be held liable for 100% of the debts and liabilities of the partnership. From a tax standpoint, it's sometimes better to invest in a partnership rather than incorporating like a sole proprietorship, a partnership leaves each partner personally exposed to claims arising out of the business operations.
Limited Partnership: A limited partnership must have at least one general partner, but all of the other investors can be limited partners whose potential liability exposure can usually be limited to the extent of that partner's investment. So, for example, if a limited partner invests $10,000 in a business venture organized as a limited partnership, his or her potential liability would be limited to the $10,000 invested rather than the rest of the limited partner's personal assets. One of the resulting tradeoffs, though, is that an investor must take a passive role in the operation of the business in order to maintain the status of a limited partner. In many ways, a limited partner is comparable to a shareholder in a corporation.
Limited Liability Partnerships: A limited liability partnership is similar to a limited partnership, except that each member of the limited liability partnership has vote in managing the operation of the business. In addition, it also protects the members from personal liability from another member’s debts.
Limited Liability Company: A limited liability company is perhaps best described as a hybrid of a corporation and a general partnership. It's treated as a corporation for limited liability purposes but as a general partnership for tax purposes. The owners are called "members." Unlike a shareholder or a limited partner, they don't have to take a passive role in the business
Q. What is an "S" corporation?
A. Corporations are generally subject to federal taxation under Subchapter C of the Internal Revenue Code ("C Corp"). In certain instances, however, a corporation can make an election to be treated under Subchapter S of the Internal Revenue Code. Under Subchapter S, a corporation is generally treated as a partnership for tax purposes. What this means is that income and expenses of the corporation pass straight through to the shareholders, which helps to minimize concerns about double taxation. In consideration of such special treatment, however, the shareholders of an S corporation must generally be individuals, and there can't be more than 75 in a corporation. There are a number of other tricky rules, including when you can decide to form an S corporation.
Q. What is a franchise?
A. A franchise is not a type of business entity. Instead, it refers to an arrangement where someone (called the "franchisor") has developed a business idea and methodology that is packaged up in a plan that is sold to other individuals (called "franchisees") who want to go into business for themselves. Under a franchise agreement, the franchisee is authorized to use and market goods or services under the franchisor's trademarks, service marks and trade names for a specific length of time, usually in exchange for payment of a fee to the franchisor. A typical arrangement will require some payment up front and then a percentage of sales.
Many new business owners choose to purchase a franchise business because of the assistance they can get from a company in setting up and running the business. If you purchase a franchise from a reputable franchise company, the risks of opening a business may be significantly less than starting a new business "from the ground up."
The franchisor typically has strict rules and standards as to how business is conducted, the goods and services to be sold and the design and construction of the business location.
Each state has strict rules and regulations on franchises. Generally, franchisors must comply with strict disclosure requirements, so that people are fully aware of what they are getting into before they sign up to buy a franchise business. If you're looking at buying a franchise, you should be very careful to fully educate yourself about all aspects of the franchise relationship.
Q. Why do I need a lawyer to set up a business entity?
A. Although you can create and register your own business entity with the Secretary of State’s Office, additional documents may be needed to properly set up and organize your business entity. Corporate resolutions, incorporators’ agreements, by-laws, operating agreements, stock purchase agreements, and other documents may be needed to establish the relationship of relevant owners and management personnel to the business. Additionally, third parties may require specific documents prior to entering into business with you, consummating leases or other contracts, lending money, opening bank accounts, etc.
Real Estate FAQ
Q. Why do I need a lawyer when I buy or sell a house?
A. A lawyer can help you avoid some common problems with the purchase of a single family home or a condominium. As Massachusetts recognizes the binding nature of an accepted offer to purchase, it is important that an attorney be involved as soon as an offer is contemplated. An attorney will review and make changes to the offer to purchase and purchase and sale agreement to protect the interest of his client. If you are purchasing a condominium, your attorney can review all of the condominium documents and explain them to a buyer. Your attorney will help to address any title issues or any issues regarding nonconformity with municipal regulations or codes. Your attorney will review the documents of conveyance; other legal documents; and the settlement statement (often referred to as the “HUD�?) and address any issues that arise at the time of closing. Your attorney will also provide advice relating to the issues of the form of ownership, whether to file a Homestead, whether to purchase title insurance and other matters that any come up during the process.
The purchase of a home is likely the largest investment that most people make in their lifetimes. It is therefore important to hire a professional to guide you through the process.
Q. What is a purchase and sale agreement?
A. A purchase and sale agreement is a legal document executed by the buyer and seller that sets forth the terms and conditions of the sale of property. There are many issues that may need to be addressed in a purchase and sale agreement for real estate. Below are just some examples:
What are the legal consequences if the closing does not take place and what happens with the down payment?
How will the down payment be treated prior to the closing and who shall be responsible for its proper application?
Is the transaction conditioned upon inspections, financing, sale of a prior residence or other factors?
What happens if there is a title issue that delays the closing and the buyer loses its rate on his/her mortgage commitment?
What additional concerns exist when I am buying commercial or business property?
Devine Barrows. LLP has been representing buyers, sellers and lenders or over 20 years and has the experience to spot and remedy potential problems before they spoil the transaction or turn into costly litigation.
Q. What happens during a closing?
A. All required, legal documentation necessary to consummate the transaction and secure any financing are signed by the parties. A settlement statement is prepared by the lender’s attorney prior to the closing which itemizes the debits and credits applies to the sales price and allocates them between the buyer and seller. The deed and mortgage are signed and recorded in the appropriate Registry of Deeds. Upon signing and delivering the deed to the buyer, title to the real estate passes from the seller to buyer.
Q. Why do I need title insurance if my lender is getting it?
A. There are two types of Title Insurance: A Lender's Policy and an Owner's Policy.
Your lender will require that you purchase a Lender's Policy. This policy only insures that the financial institution has a valid, enforceable lien on the property. Most lenders require this type of insurance, and typically require the borrower to pay for it. An Owner's Policy, on the other hand, is designed to protect you from title defects that existed prior to the issue date of your policy. Title troubles, such as improper estate proceedings or pending legal action, could put your equity at serious risk. If a valid claim is filed, in addition to financial loss up to the face amount of the policy, your owner's title policy covers the full cost of any legal defense of your title. The lenders title insurance provides no protection to the buyer in the event of a title problem.
Q. Whom does the closing attorney represent?
A. If the buyer is using a mortgage loan to finance all or part of the purchase, the closing attorney represents the lender. Although the interests of the lender and the buyer are similar in many respects, in some respects these interests are conflicting and the buyer should not rely upon the lender's attorney for legal advice.
Q. What is business litigation?
A. Business litigation is the area of law that addresses the resolution of disputes in business and commercial settings. These cases involve determining the rights and responsibilities of parties to professional and commercial relationships. This can include the application and interpretation of various documents including contracts, licenses, leases, deeds, easements and other documents that define the relationship of the parties to each other.
Q. What are some common types of commercial litigation?
A. Commercial litigation includes, but is not limited to, the following matters:
- Banking and creditor/debtor issues, including lender liability
- Antitrust, unfair practices and trade regulation
Q. What is a breach of contract and what damages can I recover in the event of a breach of contract?
A. A breach of contract exists where a party to a binding agreement fails to perform or interferes with the performance of the contract by the other party(ies)
The types of damages that may be recovered in a breach of contract action include:
- Compensatory Damages - money to reimburse you for costs to compensate for your loss.
- Consequential and Incidental Damages - money for losses caused by the breach that were foreseeable.
- Attorney fees and costs - only recoverable if expressly provided for in the contract and by statute.
- Liquidated Damages - these are damages agreed upon in the contract that would be payable in the event of breach.
- Specific Performance - a court order requiring performance as specified in the contract.
- Punitive Damages - these damages are awarded to punish a person who acted in an offensive manner in an effort to deter the person and others from repeated occurrences of the wrongdoing. In Massachusetts, punitive damages are typically not available in Massachusetts unless specifically authorized by statute.
- Rescission - the contract is canceled and both sides are excused from further performance and any money advanced is returned.
- Reformation - the terms of the contract are changed to reflect what the parties actually intended.
Q. What should I do if I am involved in a commercial litigation dispute?
A. Collect and retain all paperwork relating to the dispute. This includes contracts, correspondence, memos, emails, invoices and all other documents that may be even be only remotely relevant to the business relationship and dispute. Contact an experienced business litigation lawyer at Devine Barrows, LLP. We may be able to advise you so that litigation can be avoided or set the stage in the event that litigation is required.
Q. Do shareholders have any legal responsibility to one another?
A. In the majority of situations, shareholders have no special responsibilities to one another. In closely held businesses, however, majority shareholders hold a fiduciary duty (duty of utmost loyalty) to each other. Contact Devine Barrows, LLP to discuss your shareholder responsibilities.
Real Estate Litigation FAQ
Q. I am in a dispute with a contractor because he has failed to complete a renovation project, and I withheld his final payment. I received a letter from the contractor’s attorney advising me that he recorded a mechanics lien against my property at the Registry of Deeds. How can I dissolve the mechanics lien?
A. A mechanic’s lien creates an encumbrance on the property. The mechanic’s lien can secure payment for services that relate to the proposed or actual erection, alteration, repair or removal of a building or improvement to real property only under a written contract. After filing the mechanic’s lien, the lien holder can then file suit. If the contractor established that money is, in fact owed, he can obtain the right to foreclose on the property and force a sale to collect the professional service fees due under the contract. If the mechanic’s lien is technically improper or if the contractor does not file suit, the mechanic’s lien law provides a procedure in the Superior Court or District Court to discharge a lien. You always have the right to sue your contractor if you feel that he owes you money or services or if you feel that he filed the lien notice improperly.
Q. I received a letter from my neighbor telling me that my fence is on his property and requesting me to move it. Do I have to move it?
A. A boundary dispute can arise when a fence, wall or building encroaches onto a neighbor’s property. Given the high cost and low supply of land in Massachusetts, these types of disputes often end up in litigation. These cases require factual investigation including a land survey, title research, and possibly the need for experts. An attorney can assist in attempting to resolve the matter without protracted litigation or in protecting your interests in the event litigation is inevitable.
Q. I am in a dispute regarding my interest in title to real estate. Is there any way I can prevent the property from being sold or mortgaged until the dispute is settled?
A. Massachusetts law allows various remedies such as an attachment, lis pendens or injunction to maintain the status quo of the title and to prevent the real estate from being sold or re-financed until the final disposition of a claim has been rendered by a Court. These remedies require that certain factual and legal elements are met to the Court’s satisfaction. Contact an experienced real estate litigation attorney at Devine Barrows, LLP, our civil litigation law firm in Boston. We may be able to advise you so that litigation can be avoided or be prepared in the event that litigation is required.
Q. Can I withhold my condominium fees during a dispute I am having with a Massachusetts Condominium Association?
A. You are not allowed to withhold condominium fees for any reason, even if you deposit the condominium fees in an escrow account. Pursuant to M.G.L. chapter 183A, Condominium fees in Massachusetts take priority above all other liens, including your mortgage. Non-payment of your condominium fees is a breach of your mortgage. Your lender could foreclose on your property even if you are paying your mortgage in a timely fashion. Massachusetts law allows the condominium association to put a lien on your condominium, take you to court and even force the sale of the unit if you do not pay.