Quote of the Day - Homeowners insurance excludes losses to automobiles.
Homeowner Who Hires Next-door Neighbor Becomes An Employer, Liable For Injuries
Homeowners beware: if you hire an unlicensed worker to perform work that requires a license (take for example, roofing or virtually any other type of construction trade), then you better be prepared for the consequences.
Those consequences require you to purchase worker's compensation insurance and that worker is automatically transmuted into your employee. Without even considering the tax consequences (payroll withholding and taxes), those are some pretty steep consequences. Here's how today's case gets set up:
A homeowner hires his next-door neighbor to reroof his house. The neighbor apparently had done some roofing before, but was not licensed to do so by the State of California. The homeowner had a handyman who ensured the neighbor was doing the right work on the job, while the neighbor went out and hired other workers to assist in the reroofing efforts. After working four or five hours, the neighbor fell from the roof and was injured.
You guessed it. The neighbor sued the homeowner because perhaps not surprisingly, the homeowner didn't have worker's compensation insurance. The neighbor claimed he was an employee of the homeowner.
He's right. The California Supreme Court has made it clear if you hire someone who should hold a license to do the work you hired that someone to do, then you become that someone's employer.
The appellate court in Mendoza v. Brodeur had no trouble dispatching the homeowner's claims that he wasn't the neighbor's employer. The consequences of not having work comp for the homeowner are now that he has to face a lawsuit for personal liability.
The lesson here? Check out your neighbor's Contractor's license status on the Contractor State License Board's website, or buy work comp insurance if you want to be fully protected. Otherwise, you become the insurance company.
LA Sludge May Move From Bakersfield To Arizona
Kern County voters are upset with Los Angeles' crap. Literally on both counts. The residents voted to ban Los Angeles from shipping its sewage sludge to Kern County for use on farm fields.
Not to be dissuaded, LA did what any law-abiding City would do. It sued.
That's right, and to ensure victory, LA filed here in Los Angeles. You can bet the first motion Kern County files will be for a change of venue to move the case to Kern County. The home-court advantage part of the lawsuit will likely be the most contested aspect of the litigation. LA claims that it spent $16 million to upgrade its sewage system to make the sludge acceptable to spread on farms in Kern County, one of which is owned by the City of LA and named Green Acres, of all things.
MIPTC predicts the lawsuit will fail. Judges don't like to overturn voter referendums unless there's been some type of misrepresentation made to the voters, which is unlikely in this case. After all, how hard is it to vote to ban LA from shipping its _ _ _ _ (fill in your own appropriate, four-letter word here) to Kern County. I can't imagine any misrepresentations in that voter pamphlet. I guess you could refer to it as the "bull _ _ _ _" test.
Now, though, LA is prepared to ship its _ _ _ _ (yep, just go right ahead and use that same, four-letter word again here) to Arizona. At least there it will dry out faster.
Mayberry's Town Drunk Gets Competition From Lincoln, Nebraska
Not to pick on Nebraska, but do you really want to be known as the state that holds the record for criminals with the most arrests? According to this AP article, Lincoln, Nebraska's Kevin Holder was arrested for the 226th time last Sunday, on suspicion of possessing burglary tools, a felony. Believe it or not, that's not the record for arrests in Nebraska. The article notes that Edward Rooks has been arrested 652 times. It likely would have been more, but Rooks died in 2004.
It could be worse, though. According to the Guinness Book of World Records, the country with the most murders is India, with 37,170 between 1998 and 2000 - the entire population of Woburn, Massachusetts. Not a record to be proud of. If you're looking for more information, you can check the United States' Bureau of Justice Statistics. Or, you could just go to Vegas, where things happen, but don't apparently stay there.
Perhaps the only other character who has been arrested more times is Mayberry's town drunk, the fictional Otis Campbell.
Coast to Coast Internet Radio Explores Asia
Is Asia the next frontier for American lawyers? Will it be boom or bust? Join me and my fellow Law.com blogger Bob Ambrogi as we explore the American lawyer in Asia.
Gold And Platinum Bars Lie At The End Of The Rainbow, While AOL Struggles
In its fight against spam, AOL sued spammer Davis Wolfgang Hawke, formerly known as Andrew Britt Greenbaum and possibly now as Bo Decker or Bo Dekker. Hawke, we'll call him, unleashed hundreds of thousands of spam emails to AOL subscribers, and allegedly earned as much as $600,000 per month. AOL sought $12.8 million in damages from Hawke, who failed to show up in Court. AOL obtained a default judgment, and now it wants to collect the money.
According to his former girlfriend, Patricia Lingenfelter, he buried cash in his mother's garden at the home in Medfield, Massachusetts. Hawke's mother, Peggy Greenbaum, and her husband, Hyman Greenbaum, deny any money is out back in a Mason jar, or otherwise.
AOL doesn't believe them. The company produced to the Court receipts for gold and platinum bars purchased by Hawke, and want to use bulldozers to dig through the two and one-half acre Greenbaum estate. The company applied for and received an order from the Court to dig up the Greenbaum's yard.
It seems to MIPTC that the better place to seek money for spam would be from the companies who paid for the spam to be sent, not the spammers who figured out how to send it. But that's just me.
Worker's Compensation Appeals Board 25% Penalty Ruled Out-of-Line
It's hard enough to have a business here in California without the State making it more difficult. I know, I'm an employer, too. In our case-of-the-day, New United Motors Manufacturing, a joint venture between GM and Toyota, settled a work comp claim with an employee, agreeing to pay out just over $30K over time.
After NUMMI had made several payments, it transferred the payment responsibility to a third-party administrator, and somewhere along the line, the employee's file was mistakenly marked that all payments had been made, even though only about half had. Upon discovery of the mistake, NUMMI sent the balance of the money owed, along with a self-imposed 10% penalty, as allowed by California Labor Code section 5814(b).
The employee took the matter back to the Worker's Compensation Appeals Board and sought a 25% penalty for the 47-day delay in the payments, plus his attorneys fees for doing so. Labor Code section 5814(a) allows a 25% penalty or a $10,000 penalty, whichever is less, but places discretion with the WCAB to issue a penalty.
The court took just nine pages to dispatch the WCAB's finding for the employee's claim of 25% penalty plus attorneys fees, ruling that where the employer discovered the error, corrected it and self-imposed a 10% penalty, the WCAB couldn't impose the higher penalty. In the court's words, "the WCAB reads into section 5814(b) limitations not provided for by the statute’s plain and unambiguous language. The law forbids that ..."
That's called an "enough is enough" ruling.
Who Owns Baseball Statistics?
Earlier this year, MIPTC reported that CBC Marketing & Distribution sued Major League Baseball over the ownership of fantasy baseball statistics. At the time of my post, MIPTC cried foul and predicted MLB would lose. You can read the Complaint here. CBC wanted to use the statistics in its fantasy baseball leagues, and MLB wanted royalties for the use of those statistics. Not surprisingly, CBC didn't want to pay, and sued to determine whether it had to.
Final score? CBC 1, MLB 0. That's right, Major League Baseball lost the ability to control the statistics its players generate while playing real games. The court ruled that the statistics are part of the public domain and not the property of MLB. Spokespersons for MLB vowed an appeal, so the game isn't quite over yet. We're sure to get into extra innings on this one. US District Court Magistrate Judge Mary Medler issued a 49-page opinion, granting summary judgment for CBC in the case, fully entitled: C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, LP, Case no. 4:05CV00252MLM (ED MO August 8, 2006).
Infamy or Praise likewise predicted the win, but wants royalties for the prediction. In his Trademark Blog, Marty Schwimmer noted that the opinion also cited CBC's First Amendment rights as a reason for the win.
MIPTC reads the score this way: strike two for baseball, with the third to follow shortly after the appeal.
Alligator Tears, Rabbit Feet And Tiger Claws Don't Support Claim Against NYPD
A three- to four- pound rabbit is missing from his New York apartment, but that's the least of Antoine Yates' worries. Two years ago, he was mauled by "Ming," a 10-foot long "pet" Siberian tiger he kept in his apartment, and was taken to a Philadelphia hospital for treatment of his severe lacerations, which included exposed bone. A friend of mine who is a curator at the Los Angeles Zoo described the relationship of tiger claws and human skin to be roughly the same as human fingernails to onion paper. What may be playful to a full-grown, 450-pound wild cat with leather-thick skin can be deadly to you and me.
Until that fateful day, Mr. Yates apparently didn't appreciate that possibility. He had raised Ming from a cub, along with a hatchling now named "Al," which has turned into a six-foot long alligator. Yates also kept a small rabbit. After his recovery, Mr. Yates was sentenced to five months in jail for reckless endangerment. He also brought suit against the City of New York for the NYPD's alleged violation of his constitutional rights based on his allegation that the police unlawfully searched his apartment and seized the animals.
Last time I checked, the Constitution didn't contain either a tiger- or alligator-search clause.
Ming and Al now reside in a animal shelter in Ohio, but there's been no word about the rabbit. U.S. District Court Judge Sidney Stein, who dismissed Yates' claims, noted, "The whereabouts of the rabbit have not been ascertained, but there is no indication in the record that Al the alligator was questioned in that regard. The court suggests he may be more knowledgeable on this issue than he disgorged to date."