Monday, April 28, 2014

Pedestrian Settles Case against the Driver That Struck Her and Her Own Insurance Company

It was a beautiful springlike day and my client was leaving Temple services in Washington DC. She was crossing the street in the crosswalk. Unknown to her a car was approaching and the driver was apparently blinded by the glare of the bright sunlight. He never saw her and struck her putting her on the hood and her face against the windshield. I am thankful that she was not killed or maimed but she did break her nose. She was taken to the hospital and stabilized.

Unfortunately the broken nose was sufficiently bad that it required surgery. The surgery went well but was painful. Moreover, my client began developing extreme anxiety about being in a car and around cars. Whenever she would have a close encounter, near accident experience, it would basically paralyze her from terror. She sought counseling for this.

Of course we made a claim against the driver of the vehicle. Unfortunately, the policy limits on his insurance were minimal. My client was just a pedestrian and had no insurance of her own. Or did she? My client was extremely helpful and we began researching what insurance might be available to her. We were able to determine that she was still on a policy of insurance with her parents and that policy was way beyond minimum limits.

We made a claim against her underinsured motorist coverage. Her company acknowledged that they would provide coverage but they significantly undervalued the claim. Rather than protracted and uncertain litigation I suggested that we try mediation. Her insurance company suggested several mediators. I did not counter with my own mediators because I wanted this to work out. My reasoning was that they would more likely listen to the advice of a neutral mediator that they selected over one but I selected. We were able to agree on the mediator and went forward.

My client had medical expenses of approximately $19,000, obviously some initial pain and suffering from the injuries, mental stress from the accident and potential long-term problems such as increased risk of sinus infection. The mediator was very able and persuasive to both sides. The mediator painted a real picture of the benefits and risks of not resolving the case. The defendant clearly ran down my client in the crosswalk. My client, from outward appearances, looked just fine. The driver did not intend to run down my client. My client was a very sympathetic and well spoken person whom I believe a jury would like very much.

We were able to resolve the case to the satisfaction of my client.

Even though we were done with the mediation I was not done with the case. There is the matter of the competing releases. A release is a contract wherein you forever give up your right to make a claim against the released party. In this case there were two released parties and two releases. The driver of the car sent a release basically stating that once my client signed that release it would prevent her from making claims against anybody in the world. Her insurance company sent a release basically stating that once she signed that release it would release them and everybody else in the world from any claims. Clearly these releases contradicted the mediation agreement. Rather than have my client simply sign the releases I added language making it very clear that she was settling with both parties simultaneously. Further, there was still the matter of reimbursing her health insurance. Most health insurance contracts will have a subrogation clause. In other words, if the health insurance pays out benefits and a third party is involved that caused the injury and pays money through judgment or settlement, the health insurance company gets their money back. In this particular case I was able to negotiate a substantial reduction from the claimed health insurance which put more money into my clients pocket.

When you are involved in an accident remember to consider additional insurance possibilities.  Considering the mediator is critical. I have been practicing in the Rockville area since 1986 and I knew the mediators that the insurance company provided. I picked the mediator that I believe would be most beneficial to my client and I believe that the results speak for themselves.

Section 8 Housing Tenant Defense

A tenant came by recently asking me to defend her from the landlord who claimed that she was a tenant in breach of lease. The tenant was a very nice woman. She was a mother of several children. She was disabled. She was living in a Housing and Urban Development subsidized rent program. She had been in this home for over five years. This is basically a program sponsored by the federal government wherein in exchange for subsidized rent the lease has certain unusual but powerful restrictions. Basically, a tenancy can be terminated could be for the following reasons:

Drug-related criminal activity engaged in work on or near the premises, by any tenant, household member, or guest, and any such activity engaged in or on the premises by any other person under the tenant's control;

Determination made by the landlord that a household member is illegally using a drug;

Determination made by the landlord that a pattern of illegal use of a drug interferes with the health, safety, or right to peaceful enjoyment of the premises by the residence;

Criminal activity by tenant, any member of the tenant' s household, a guest or another person under the tenant's control;

(a) that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including property management staff residing on the premises); or

(b) that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises;

If the tenant is fleeing to avoid prosecution, or custody or confinement after conviction, for crime, or attempt to commit a crime, that is a felony under the laws of the place from which the individual fleas, or that in the case of the state of New Jersey, is a high misdemeanor;

If the tenant is violating a condition of probation or parole under federal or state law;

Determination made by the landlord that household members abuse or pattern of abuse of alcohol threatens the health, safety, or right to peaceful enjoyment of the premises by other residents;

If the landlord determines that the tenant, any member of the tenants household, a guest or another person under the tenant's control as engaged in the criminal activity, regardless of whether the tenant, any member of the tenants household, a guest or another person under the tenant's control has been arrested or convicted for such activity.

This is in a model lease drafted by the HUD program. If you look at it you will see that virtually any criminal activity is grounds for eviction. This is not an area of law where I specialize but I did a little research and there is the Supreme Court case of HUD versus Rucker which I summarize below:

535 U.S. 125


No. 00-1770.

Supreme Court of the United States.

Argued February 19, 2002.

Decided March 26, 2002.*

        Title 42 U. S. C. § 1437d(l)(6) provides that each "public housing agency shall utilize leases ... provid[ing] that ... any drug-related criminal activity on or off [federally assisted low-income housing] premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy." Respondents are four such tenants of the Oakland Housing Authority (OHA). Paragraph 9(m) of their leases obligates them to "assure that the tenant, any member of the household, a guest, or another person under the tenant's control, shall not engage in ... any drug-related criminal activity on or near the premises." Pursuant to United States Department of Housing and Urban Development (HUD) regulations authorizing local public housing authorities to evict for drug-related activity even if the tenant did not know, could not foresee, or could not control behavior by other occupants, OHA instituted state-court eviction proceedings against respondents, alleging violations of lease paragraph 9(m) by a member of each tenant's household or a guest. Respondents filed federal actions against HUD, OHA, and OHA's director, arguing that § 1437d(l)(6) does not require lease terms authorizing the eviction of so-called "innocent" tenants, and, in the alternative, that if it does, the statute is unconstitutional. The District Court's issuance of a preliminary injunction against OHA was affirmed by the en banc Ninth Circuit, which held that HUD's interpretation permitting the eviction of so-called "innocent" tenants is inconsistent with congressional intent and must be rejected under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843.

        Held: Section 1437d(l)(6)'s plain language unambiguously requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of the drug-related activity. Congress' decision

Page 126

not to impose any qualification in the statute, combined with its use of the term "any" to modify "drug-related criminal activity," precludes any knowledge requirement. See United States v. Monsanto, 491 U. S. 600, 609. Because "any" has an expansive meaning — i. e., "one or some indiscriminately of whatever kind," United States v. Gonzales, 520 U. S. 1, 5 — any drug-related activity engaged in by the specified persons is grounds for termination, not just drug-related activity that the tenant knew, or should have known, about. The Ninth Circuit's ruling that "under the tenant's control" modifies not just "other person," but also "member of the tenant's household" and "guest," runs counter to basic grammar rules and would result in a nonsensical reading. Rather, HUD offers a convincing explanation for the grammatical imperative that "under the tenant's control" modifies only "other person": By "control," the statute means control in the sense that the tenant has permitted access to the premises. Implicit in the terms "household member" or "guest" is that access to the premises has been granted by the tenant. Section 1437d(l)(6)'s unambiguous text is reinforced by comparing it to 21 U. S. C. § 881(a)(7), which subjects all leasehold interests to civil forfeiture when used to commit drug-related criminal activities, but expressly exempts tenants who had no knowledge of the activity, thereby demonstrating that Congress knows exactly how to provide an "innocent owner" defense. It did not provide one in § 1437d(l)(6). Given that Congress has directly spoken to the precise question at issue, Chevron, supra, at 842, other considerations with which the Ninth Circuit attempted to bolster its holding are unavailing, including the legislative history, the erroneous conclusion that the plain reading of the statute leads to absurd results, the canon of constitutional avoidance, and reliance on inapposite decisions of this Court to cast doubt on § 1437d(l)(6)'s constitutionality under the Due Process Clause. Pp. 130-136.

        237 F. 3d 1113, reversed and remanded.

In the above case apparently the tenants may have been completely innocent, unknowing of the problems brought on by drug users on their premises and the tenants may have been completely disabled to boot. Regardless, the Supreme Court held that the language was proper and the right of the landlord to have this type of extreme authority was necessary to promote the peace and proper enjoyment of the property.

In my case the allegations were that one of the tenants was charged with serious allegations including illegal possession of a handgun, possession with intent to distribute many pounds of marijuana. The allegations were that the police stopped a vehicle wherein the tenant's child was a passenger. The driver admitted to having some drugs upon him. The police searched the trunk and there were several pounds of marijuana. The police searched the glove box and there was a handgun. The passenger was charged with the serious crimes but upon review the prosecution decided they did not have sufficient evidence to prove that this passenger knew about any of these seriously illegal items. The cases were either dropped or prosecution was diverted. Regardless, the landlord found out about the charges and as you can see above a conviction is not necessary.

The landlord brought a suit to evict the tenant. I defended the claim arguing that the landlord was unable to prove that the plantlike substance that was found was marijuana. Landlord did not bring the chemist who had analyzed the plantlike substance and concluded it was marijuana. That probably did not carry the day. What did carry the day ultimately was the technical argument that prior to initiating eviction proceedings the landlord is required to notify the tenant and advised the tenant that a meeting is required between the tenant and landlord to further discuss the eviction at the tenant's option. In this case the landlord did notify the tenant and the tenant requested such a meeting in writing immediately. The landlord never complied with this request and the judge ultimately dismissed the case for failure to comply with the procedural requirements of a lease termination.

I would like to think that the landlord cannot come back on the same claim because in my mind we had a full hearing on the merits and a decision was made. We will see what happens.

Meanwhile, I advised my client to make certain that anybody on her premises or uses her home stay away from any form of crime anywhere. The way I read the lease, if somebody lives in her home and is smoking marijuana in Oklahoma, that would be grounds for eviction in the state of Maryland. Bottom line, if you are in section 8 housing, not only do you need to scrupulously obey criminal laws but anybody else who associates with your home must also.