Changes in PTO Legislation

Effective August 1, 2013, employees of employers with 21 or more employees working in at least one location may use sick leave benefits for absences due to illness of or injury to the employee’s child, adult child, spouse, sibling, parent, grandparent or stepparent for reasonable periods of time that the employee’s absence may be necessary, in accordance with the same terms upon which the employee is able to use sick leave benefits for the employee’s own illness or injury. A “child” includes a stepchild and a biological, adopted or foster child.

This blog entry is written by Bill Sjoholm, a shareholder at Thomsen Nybeck. Bill is a senior trial lawyer in the litigation section of Thomsen & Nybeck and the head of the firm’s Litigation Practice group. He concentrates his practice in the areas of employment law, commercial law, plaintiffs’ personal injury, community association law, and general civil litigation. In addition to practicing before the state and federal courts, Bill has been active in pro bono activities, including serving on the Minnesota State Bar Association Civil Litigation Governing Council, the Board of Directors for Central Minnesota Legal Services, the Lawyer Referral Oversight Committee and the Volunteer Lawyer’s Network.

One Car. Two Sisters. Both Arrested for DWI. Wait, what?!

Two sisters in Florida were recently arrested for DWI. At the same time. While driving the same car. Yes, you read that correctly. So, how did these sisters manage to pull this off? Well, the youngest one – 18 years old – was allegedly zig-zagging down a highway, which attracted the attention of a local police officer. When the officer pulled up behind the vehicle, he turned on his lights and siren. Abruptly, the vehicle stopped in the middle of the road. Then, the sisters changed seats by hopping over one another inside the vehicle. Needless to say, the officer had no trouble noticing the switcheroo occurred. The consequence is that the older sister – 24 years old – was now behind the wheel. And even though she didn’t drive the vehicle anywhere, she was in control of the vehicle while under the influence of alcohol. Thus, both sisters were arrested and charged with DWIs – coincidentally enough, they both blew .12.

The key fact leading to the arrest and charge of the older sister is that she was in physical control of the vehicle. In Minnesota, physical control is defined as:

Being in a position to exercise dominion or control over the vehicle. Thus, a person is in physical control of a vehicle if he has the means to initiate any movement of that vehicle and he is in close proximity to the operating controls of the vehicle, and this is true whether the vehicle can be driven on the highway at that point or not.

Minnesota courts have extended this definition to include vehicles that are parked and even when a person is outside the vehicle. In these extenuating circumstances, courts will look to the surrounding facts to determine whether the defendant was in physical control, such as whether the keys are in the ignition, whether the car is running, and if other individuals are in or outside the vehicle.

As in previous years, you can expect local law officials will be doing DWI patrol this Fourth of July weekend. So, if part of your celebration over this holiday weekend involves enjoying a few adult beverages, keep in mind that the switcheroo does not work! Have a safe, enjoyable, and responsible Fourth of July!

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This blog entry is written by James Gempeler, an associate at Thomsen Nybeck. James practices in the litigation area of the firm with a focus on criminal defense, general civil litigation, construction litigation, and is a prosecutor for the Metropolitan Airports Commission.

Right to Remain Silent – And That Silence Will Be Used Against You

The right to remain silent is not an absolute right. It’s a misperception held by many that the right to remain silent – and for that silence not to be used against you – is always the case, no matter the setting. But, the United States Supreme Court forcefully reminded us that this is not the case in the Salinas v. Texas decision it issued earlier this week.

In Salinas, the defendant agreed to accompany the officers to the police station, where he was subject to questioning for an hour. Key to the case is that the defendant was never in custody – i.e. he was free to leave at any time – and, as a result, he was never given the Miranda warning we are all familiar with (you have the right to remain silent, etc…). The defendant answered most of the officers’ questions during the hour. But when they asked him whether his shotgun would match the shell casings removed at the scene, he fell silent, looked down, and shuffled his feet. After a few moments of silence, the officers asked different questions, which he again then answered. The defendant was ultimately convicted based, in part, on this silence. His silence was, in fact, used against him.

The Supreme Court was faced with the following issue: whether the prosecution may use evidence that a defendant asserted the privilege against self-incrimination during a police interview when the defendant was not in custody.

In holding that the prosecution may rely upon the defendant’s silence as an inference of his guilt, the Supreme Court held that a defendant must explicitly invoke his Fifth Amendment privilege against self-incrimination. Because the defendant was free to leave and was not even read the Miranda warning, “simply standing mute” is not enough to invoke the Fifth Amendment privilege against self-incrimination. It is not self-executing and can only be recognized in this setting when the defendant explicitly invokes it.

All is not lost, though, because the Court recognized that this rule does not apply – even in the same circumstances – when government coerces the forfeiture of the Fifth Amendment privilege. The Court’s few examples of when this might occur are not clear; but, the overriding principle is that coercion occurs when the government action denies the defendants free choice to admit, deny, or to refuse to answer.

So what does this case mean going forward? The most obvious implication is that the prosecution will use all available evidence (and inferences from the same) to obtain a conviction. But, you’d expect that out of them – otherwise, they aren’t doing their job.

Instead, it shows that defendants need to be careful about what they say and do not say during the police investigation. Most defense attorneys advise defendants to politely decline answering police questions during the investigation stages – i.e. before they are placed into custody. After all, what’s being said is most often only aiding the state’s case against you. But, now, a savvy prosecutor could attempt to use that silence against you if you were not in-custody, unless you explicitly invoke your Fifth Amendment privilege against self-incrimination. This means that must say the magic words – something along the lines of: “I’m invoking my Fifth Amendment privilege against self-incrimination.” To best protect yourself, identify Fifth Amendment by name, not just your privilege against self-incrimination.

Salinas has paved the way for prosecutors to get creative with what is said and not said by the defendant before being placed into custody. It’s important to make sure you have defense counsel to help combat this.  

This blog entry is written by James Gempeler, an associate at Thomsen Nybeck. James practices in the litigation area of the firm with a focus on general civil litigation, construction litigation, criminal defense, and is a prosecutor for the Metropolitan Airports Commission.

Matt Drewes Quoted in Recent Article at HOALeader.com: Does Your Architectural Committee Have the Right or Responsibility to Enforce Local Laws?

Matt Drewes recently contributed quotes for the following articles published at www.hoaleader.com, a national web-based publication focused on homeowners association and condominium board members and association management professionals:

• “Does Your HOA’s ARC Have to Enforce Local Laws? Discussion Forum Follow-up”; published April, 2013 at HOALeader.com
  • Publisher: Plain-English Media, LLC (quoting Matthew A. Drewes); Read it now.

Matt is a Shareholder with Thomsen Nybeck.  He is the head of the firm’s eight-member Community Association Representation Group and the firm’s Creditors’ Remedies Group, and practices in the areas of business and real estate litigation and transactions, employment law, construction litigation, community association law, debtor/creditor law and insurance. He has been included in the annual list of Minnesota’s Rising Stars for several years, and has been quoted in the Minneapolis StarTribune, Minnesota Lawyer, Habitat Magazine, and on various websites including Yahoo!Finance.com, Bankrate.com, MSN.com, and elsewhere on issues involving construction litigation, community associations and real property issues. He can be reached at mdrewes@tn-law.com or by phone at 952.835.7000.

Supreme Court Quickly Reins in Court of Appeals on Expungements

Well, that didn’t last long. Just over a year ago, the Minnesota Court of Appeals departed from case precedent to grant an expungement that encompassed not only the sealing of judicial records, but also the sealing of executive records. The Minnesota Supreme Court quickly and decisively held otherwise.

Many have thought that expungements do not grant a meaningful remedy because records held by the executive branch – such as the Bureau of Criminal Apprehension (“BCA”) – are not sealed and, thus, still available for review by prospective employers or landlords. Understanding the unfairness caused by the BCA still making records available to the public – and likely abiding by the adage “the ends justifies the means” – the Court of Appeals opined that, because the executive branch records originate from court records, the judiciary’s inherent authority in granting an expungement extended to records created by the judicial branch, but maintained by the executive branch. In turn, an expungement under the Court of Appeals logic had a meaningful impact in sealing both the court records and also records held in the BCA. Arguably logical, this conclusion is unsupported by law and policy – at least according to the Supreme Court.

The Supreme Court’s analysis begins with its pronouncement that the judicial branch’s inherent authority is limited to what is necessary to the performance of a judicial function. And to the Supreme Court, the unfairness argument the Court of Appeals relied upon exceeds the court’s inherent authority: “[b]ut the authority the judiciary has to control its own records does not give the judiciary inherent authority to reach into the executive branch to control what the executive branch does with records held in that branch, even when those records were created in the judiciary.”

Further explaining this is the Supreme Court’s continued reliance on the “separation of powers” doctrine. To the Court, the extent of the relief sought via an expungement is limited by what it claims are clear “legislative expressions of policy.” First, under the expungement chapter (Minn. Ch. 609A), the legislature provides for the expungement of all records, including those maintained by the executive branch, for certain limited criminal records. Second, the Minnesota Government Data Practices Act (“MDPA”) establishes a presumption that records are public. Specifically, “data created, collected, or maintained by the BCA” relating to the crime, conviction, and sentence are public data for 15 years. Through these actions, the legislature, according to the Supreme Court, decided against extending the expungement remedy to include records held by the executive branch, such as the BCA.

So, is an expungement truly an “illusory remedy” as the dissent claims? Yes and no. It certainly does not have the teeth it would have if a district court could seal both the court records and BCA records. But, an expungement is still a viable option for those looking to clear their criminal history if doing so is important for job and/or housing considerations. Additionally, as the Supreme Court pointed out, there are certain criminal records wherein an expungement order can include sealing records maintained by the executive branch.

If you are considering an expungement, you should retain counsel to ensure that you are maximizing the remedy available and not simply getting an “illusory remedy.”

This blog entry is written by James Gempeler, an associate at Thomsen Nybeck. James practices in the litigation area of the firm with a focus on general civil litigation, construction litigation, criminal defense, and is a prosecutor for the Metropolitan Airports Commission.

Matt Drewes Quoted in Several Articles at HOALeader.com: Dealing with renters; Associations issuing speeding tickets?; Getting an inactive association back on track

Matt Drewes recently contributed quotes for the following articles published at www.hoaleader.com, a national web-based publication focused on homeowners association and condominium board members and association management professionals:

• “Smart HOAs Get Tenants on Their Side”; published March 8, 2013 at HOALeader.com
  • Publisher: Plain-English Media, LLC (quoting Matthew A. Drewes); Read it now

 

•  “Restarting Your HOA? Where to Begin”; published March 2013 at HOALeader.com
  • Publisher: Plain-English Media, LLC (quoting Matthew A. Drewes); Read it now

• “Court Says HOA Can Issue Speeding Tickets; What’s next, Undercover Ops?”; published March 2013 at HOALeader.com
  • Publisher: Plain-English Media, LLC (quoting Matthew A. Drewes); Read it now

• “Getting Tenants Invested in Your HOA”; published March 2013 at HOALeader.com
  • Publisher: Plain-English Media, LLC (quoting Matthew A. Drewes); Read it now

Matt is a Shareholder with Thomsen Nybeck.  He is the head of the firm’s eight-member Community Association Representation Group and the firm’s Creditors’ Remedies Group, and practices in the areas of business and real estate litigation and transactions, employment law, construction litigation, community association law, debtor/creditor law and insurance. He has been included in the annual list of Minnesota’s Rising Stars for several years, and has been quoted in the Minneapolis StarTribune, Minnesota Lawyer, Habitat Magazine, Yahoo!Finance.com, Bankrate.com, MSN.com, HOALeader.com, and elsewhere on issues involving construction litigation, community associations and real property issues. He can be reached at mdrewes@tn-law.com or by phone at 952.835.7000.

Repose Revised: A change in the statute establishing limitations and repose periods for construction defect cases

A significant amendment to Minnesota’s statute establishing time limitations applicable to construction defect lawsuits will take effect on August 1, 2013. The statute, Minn. Stat. § 541.051, governs not only how long a person may have to sue for many claims “arising out of the defective and unsafe condition of an improvement to real property” once an injury is discovered, but also has contained a “repose” provision that provides no such cause of action shall accrue more than 10 years after substantial completion. There have been a couple of exceptions to this repose period, however, one of which was for the benefit of parties who may have been sued already and who want to add new parties to the case.

The bill, which Governor Dayton approved on April 24, 2013, does not change the limitations of time within which a person may bring an action once the injury is discovered (two years) or the original plaintiff’s repose period (10 years). Rather, it clarifies what has been a source of some confusion and concern among the parties who may be sued in such cases.

Frequently, when a person commences a construction defect lawsuit, that person sues the primary contractor or builder with whom the person may have signed a contract and with whom that person may have dealt during the construction process. Even where the current property owner or manager didn’t deal with the prime contractor or builder, that party is usually easier to find than the various subcontractors or materials suppliers who may have contributed to the project. Once the contractor or builder is sued, it may argue that one or more of the parties to whom it delegated a portion of its work (i.e., a subcontractor) is fully or partially responsible for the alleged defect(s). To ensure proper allocation of the plaintiff’s damages to the parties truly responsible for the defect(s), the prime contractor or builder usually will add these subcontractors (and sometimes suppliers) to the case under the theories of contribution and indemnity.

For some additional insight into the current development, it’s useful to mention that this same statute was amended in 2007. Before the 2007 amendment, it used to be that a contractor or builder that was sued had a somewhat indeterminate amount of time within which to add other parties under its claim for contribution or indemnity. Pursuant to the statute a cause of action for contribution or indemnity historically did not arise until the party seeking contribution or indemnification had paid on a final judgment, arbitration award, or settlement. Thus, if the builder was sued in year 10 after substantial completion, and the case for some reason didn’t go to trial or settle until year 15, and payment wasn’t made until year 16 its subcontractors would still be on the hook 18 years after the work was complete. In that time, memories fade, witnesses disappear, and records may be destroyed. The 2007 amendment then provided that the cause of action for contribution or indemnity arises upon the earlier of such a payment on the original settlement or judgment, or when the party seeking contribution or indemnity is sued. This meant a prime contractor or builder that was sued couldn’t delay in adding any other parties it may believe were responsible for the defect(s).

But the 2007 amendment appeared to leave a loophole that there was no end date for claims against subcontractors that may not have been placed into suit against the prime contractor or builder, and instead were settled out of court. This is what happened in connection with the 35W bridge collapse case. The contractor involved in performing the work was threatened with suit, but instead settled out of court; its claim for contribution or indemnity was only triggered by its settlement payment, meaning it then had a legitimate argument that the designer of the bridge that completed its work decades earlier could still be sued for contribution or indemnity, even though none of the people injured by the collapse could have asserted their own claims directly against that same designer.

This new amendment to 541.051  now provides that even claims for contribution or indemnity may be barred from accruing. These claims must now be discovered within 14 years of substantial completion of the improvement or they will be deemed not to have accrued, and will be barred. This now gives certainty to all parties involved in construction projects that may go bad. Subcontractors and contractors alike will benefit from the certainty, and while the 35W bridge collapse was an exception, in most cases this new limitation will not affect the people claiming to be injured by a defective or unsafe condition arising out of an improvement to real property.

Matt Drewes contributed this post.  Matt is a Shareholder with Thomsen Nybeck.  He is the head of the firm’s eight-member Community Association Representation Group and the firm’s Creditors’ Remedies Group, and practices in the areas of business and real estate litigation and transactions, employment law, construction litigation, community association law, debtor/creditor law and insurance. He has been included in the annual list of Minnesota’s Rising Stars for several years, and has been quoted in the Minneapolis StarTribune, Minnesota Lawyer, Habitat Magazine, Yahoo!Finance.com, Bankrate.com, MSN.com, HOALeader.com, and elsewhere on issues involving construction litigation, community associations and real property issues. He can be reached at mdrewes@tn-law.com or by phone at 952.835.7000.

Is There a “Total Loss”?—Not an Insurance Appraisal Panel Decision

In Auto-Owners Insurance Company v. Second Chance Investments, LLC, a decision released March 20, 2013, the Minnesota Supreme Court held that under the Minnesota standard fire insurance policy, the question of whether there is a total loss is not a question that can be determined by the an appraisal panel.

The Minnesota standard fire insurance policy is really a statute defining the minimum that fire insurance policies can provide and is found at Minn. Stat. 65A.01, subd. 1.  In that statute, there is an appraisal provision for determining what the amount of loss is, which requires that such an issue be determined by an appraisal panel (typically three people: one chosen by the insured, one by the insurer, and one by the two chosen by those respective party), if requested by the insurer or the insured.  See Minn. Stat.  65A.01, subd. 3. Minn. Stat. § 65A.01, subd. 3.  However, that statutory provision contains an important clause that reads “except in case of total loss on buildings.”  The Minnesota Supreme Court recognized that language and held that an appraisal panel can’t determine whether there is a total loss.  The full opinion can be read here.

Obtaining an appropriate insurance settlement is often not an easy task.  As this case exemplifies, there are many details of and aspects to insurance policies, claims, and recovery.  Insureds should contact an attorney to ensure that they are properly submitting a claim and that the processes in relation to that claim are not being abused or improperly foreclosing relief.  Contact a member of the Thomsen Nybeck litigation team  with insurance-specific experience to help advise you.

This blog entry is written by Chris Renz, a shareholder at Thomsen Nybeck. Chris practices in the litigation area of the firm with primary focus on real estate litigation, employment litigation, insurance law, townhome and condominium law, and criminal law.

Do you have sufficient motor vehicle insurance?

Whether due to the economy or otherwise, many motor vehicles on the road today are not covered by liability insurance, or have grossly inadequate insurance. If an uninsured or underinsured driver causes injury to you or your family members in a car accident, you may need to rely on the limits of your own insurance to cover the damages.

Many people have decided not to purchase insurance or believe they cannot afford coverage that has coverage limits more than the minimum limits required by law.  Moreover, some insurance companies are not offering liability coverage with limits that would be adequate to cover the injuries of someone in another vehicle who suffers severe injuries.    

To protect yourself and your family, contact your insurance agent about the coverage you maintain to make certain you have adequate insurance for yourself and your family.  You need insurance that will be available to cover potentially substantial injuries caused by another driver.  If the other driver does not have insurance, you need adequate uninsured motorist coverage (UM coverage).  If the other driver does not maintain sufficient insurance, you need to rely on your own underinsured motorist coverage (UIM coverage).   

The amount of UM/UIM coverage you maintain on your own motor vehicles is very important.  If you do not purchase adequate UM/UIM coverage, your family could suffer a financial catastrophe if someone in your family suffers seriously debilitating injuries due to the fault of another driver.  To guard against a potential disaster such as this, you should try to maintain UM/UIM coverage with limits as high as you can obtain from the insurance company you select — and that you feel you can afford. 

While coverage limits of $1 million may seem high, very serious injuries may result in substantial wage loss, loss of earning capacity, treatment expenses and other financially significant damages that can and often do exceed that amount.  Thus having adequate insurance to cover potentially substantial damages is so important.  You cannot expect others to maintain the amount of insurance coverage you may need to avoid a financial catastrophe.

If you have any questions about your rights and obligations under the law with regard to motor vehicle insurance claims and damages, talk to the attorneys at Thomsen Nybeck.

This blog entry is written by Bill Sjoholm, a shareholder at Thomsen Nybeck. Bill is a senior trial lawyer in the litigation section of Thomsen & Nybeck and the head of the firm’s Litigation Practice group. He concentrates his practice in the areas of employment law, commercial law, plaintiffs’ personal injury, community association law, and general civil litigation. In addition to practicing before the state and federal courts, Bill has been active in pro bono activities, including serving on the Minnesota State Bar Association Civil Litigation Governing Council, the Board of Directors for Central Minnesota Legal Services, the Lawyer Referral Oversight Committee and the Volunteer Lawyer’s Network.

Whose Foot Is It? Subway sued for failing to ensure all footlongs are 12 inches

Two men in New Jersey have sued Subway, alleging that the sandwich chain’s sandwiches aren’t as advertised. A New York Post story on the suit is available here.

The attorney for the men explained the suit: “The case is about holding companies to deliver what they’ve promised,” according to the Post article.

The piece also includes an investigation performed by the newspaper that revealed four out of seven sandwiches purchased in Manhattan, Brooklyn, and Queens measured less than 12 inches, instead running 11 to 11.5 inches.

The attorney in the New Jersey case plans to seek class action status for this lawsuit, and to commence a similar class action suit on behalf of allegedly short-changed customers in Pennsylvania, according to this piece from the Associated Press.

It appears these cases and the New York Post’s investigation arose from a recent post on Subway’s Facebook page holding a tape measure up next to a sandwich apparently showing it to be just 11 inches long.

For its part, it appears Subway hasn’t run from the controversy. While it has stated that sometimes individual stores may deviate slightly from corporate practices, resulting in varied sandwich lengths, according to the linked article its spokesperson has also stated that Subway intends to honor its “footlong” representations going forward.

At this time, we have not seen whether or how the New Jersey lawsuit may be resolved. But while it’s easy to scoff at something relatively minor to an average sandwich purchaser, news sources say Subway has more than 37,000 stores worldwide, and cutting even small corners (if done intentionally) can lead to significant total savings for those who own the stores. It is worth noting that Minnesota laws currently on the books likely would apply to this situation, including the Minnesota Consumer Fraud Act, and Minnesota’s version of the Uniform Deceptive Trade Practices Act. These laws are to protect consumers and competitive businesses from one party misleading people into purchasing its products over a competitors, or purchasing a product that is not what it’s supposed to be. Whether this is a case that justifies invoking these strong public protections is another question.

Matt Drewes contributed this post.  Matt is a Shareholder with Thomsen Nybeck.  He is the head of the firm’s nine-member Community Association Representation Group and the firm’s Creditors’ Remedies Group, and practices in the areas of business and real estate litigation and transactions, employment law, construction litigation, community association law, debtor/creditor law and insurance. He has been included in the annual list of Minnesota’s Rising Stars for several years, and has been quoted in the Minneapolis StarTribune, Minnesota Lawyer, Habitat Magazine, Yahoo!Finance.com, Bankrate.com, MSN.com, HOALeader.com, and elsewhere on issues involving construction litigation, community associations and real property issues . He can be reached at mdrewes@tn-law.com or by phone at 952.835.7000.