Will the number of cases appearing before probate judges increase dramatically in the next several years – specifically estate and trust disputes as well as fiduciary cases?  The answer is “yes” according to Kenneth J. Peace, head of the litigation group at Braun Siler Kruzel, PC in Scottsdale, Arizona. In an article titled “A Call to Mediate,” (Trusts & Estates, July 2007), Mr. Peace makes this assertion based upon the aging of baby boomers, the rising number of millionaire households, a generation of children born from 1979 to 1994 labeled as the “Entitlement Generation,” and a plethora of new litigators eager to profit from family disputes.  Mr. Pease posits that the effect of this trend will be to overwhelm the court system, leading to even longer settlement times than currently seen and overburdened and possibly less attentive judges. An Alternative to Litigation Litigation is often long, all-consuming, divisive, and potentially very expensive.  Mr. Peace, through his article, suggests an alternative to the litigation process – mediation.  Mediation offers family members an opportunity for conflict resolution without the negatives of the litigation process. It is a process in which a neutral third party acts as a facilitator to assist in dispute resolution.  According to Ray D. Madoff, (“Mediating Probate Disputes: A Study of Court Sponsored Programs,” Real Property, Probate and Trust Journal, Winter 2004) “Attorneys and judges operating within jurisdictions in which mediation of probate disputes regularly occurs are quite enthusiastic about it.” Mediation is not the same thing as arbitration. Arbitration involves submitting a dispute to one (sometimes more) impartial persons, who then render a final binding decision, often in the form of an “award” to one side or the other.  In essence, the arbitrator takes on the role of the judge. Who Can Mediate? Mr. Peace states in

With all due respect to Ed Bruce, who wrote that song and to Willie for singing it with Waylon, the title of this message is meant as a reminder to all drivers and trucking companies that now is the time we can contest all DOT violations cited in a civil traffic or criminal complaint

As we all know, the FMCSA proposes to adopt regulations that prohibit motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers from operating commercial motor vehicles in violation of the Federal Motor Carrier Safety Regulations (FMCSRs)—including drivers’ HOS limits, CDL regulations, ill and fatigued driving, inclement weather, drug and alcohol testing and Haz-Mat regulations (HMRs).[1] But what we are already seeing – and which has vastly increased the liability exposure of motor carriers and other entities in interstate commerce – is the sudden increase in driver (and “employee”) claims of retaliation under the Surface Transportation Assistance Act of 1982. Claim filings are up about 30% in the last few years. Transportation intermediaries and motor carriers – the entire spectrum of entities involved in interstate cargo movement, such as third-party logistics firms, leasing agents, forwarders and freight brokers – are exposed to liability under the STAA – the “anti-retaliatory” provisions of the Surface Transportation Assistance Act of 1982, based on perceived or actual “control” over “employees.” Under the STAA, the definition of employee is broadly interpreted to include a driver of a commercial motor vehicle, including an independent contractor, or a mechanic, a freight handler, or an individual who is not an employer who directly affects commercial motor vehicle safety or security in the course of employment by a commercial motor carrier.  The term includes any individual formerly performing the work or an applicant for such work. Any such entity can be an employer because of the apparent degree of control the company has over the “employee.” Even the appearance that you can influence the disciplining of another company’s employee has become sufficient evidence of the requisite degree of control – think of a freight broker pushing a motor carrier’s driver to meet an appointment – and that’s enough for

The W.C.A.B. has issued its en banc decision to the defendant’s appeal in Dubon v World Restoration and substantially modified its prior en banc holding to limit the ability of the W.C.A.B. to decide medical issues only in cases where UR is untimely. In doing so the W.C.A.B. completely retracted its prior holding that UR decisions which were “procedurally deficient” were subject to W.C.A.B. jurisdiction to address medical issues. The W.C.A.B. effectively disagreed with its own rule ADR 10451.2 to the extent it made such procedural issues the subject of W.C.A.B. review. The new holding of the W.C.A.B. decided on a 4-1 vote, is set out as follows: 1. A utilization review (UR) decision is invalid and not subject to independent medical review (IMR) only if it is untimely. 2. Legal issues regarding the timeliness of a UR decision must be resolved by the Workers’ Compensation Appeals Board (WCAB), not IMR. 3. All other disputes regarding a UR decision must be resolved by IMR. 4. If a UR decision is untimely, the determination of medical necessity may be made by the WCAB based on substantial medical evidence consistent with Labor Code section 4604.5. The W.C.A.B.’s decision provides a substantial change from its former broadly worded opinion giving wide discretion to trial judges to find UR defective based on multiple defects beyond timing issues. The W.C.A.B., in removing the ability to review UR based issues other than untimeliness emphasized the language in SB 863 that medical issues should be decided in UR and IMR and not by the WCJ. The W.C.A.B., however, has also concluded that IMR is limited to resolving medical disputes and is not authorized to address timeliness issues. Only the W.C.A.B. can decide if UR is timely in the absence of some statutory authority for IMR to consider

It’s that time of year again. At malls and department stores across the country, children are lining up hoping to get a picture with the big man in the red suit, and maybe get him to lend a conspiratorial ear about the most exciting Frozen-themed toy of the moment. But just because Jolly Old Saint Nick has made his list and checked it twice, it does not mean that he’s ready for the holidays. He should quadruple check to make sure that he is covered in the event a wide-eyed child knocks her noggin on an ornament or trips over a stray elf shoe. Santa should look at picking up some entertainers liability coverage. Malls and other locations that host Kris Kringle on his world tour carry commercial general liability policies that protect the business and its employees from liability for such incidents. These CGL policies typically including a provision excluding coverage for temporary workers, which one such policy defines as those workers “furnished . . . to meet seasonal or short-term workload conditions.” In the event one of his adoring fans claims injury, this CGL exclusion can often leave Father Christmas high and dry, on the roof without a sled, or up candy cane creek without a reindeer. As a result, many malls and other private parties hiring Pere Noel for seasonal festivities now require him to have proof of insurance. An entertainers liability policy generally covers Santa’s customers and anyone visiting, but does not cover for injury to Santa himself, Mrs. Claus, or any elf helpers. The coverage limits are typically around $1 million per occurrence or incident, and $2 million general aggregate or total coverage. Santa can find this type of coverage by speaking with a local insurance broker, but he should carefully read each policy and