Latest News

Habitual Drunkards in Legal Cases

Author: Robert J. Marcello, Ph.D., LCP, CCHP – Behavioral Health Expert

Source: Exigent Forensic Consulting

A Habitual Drunkard has been defined as: “A person given to ebriety or the excessive use of intoxicating drink, who has lost the power or the will, by frequent indulgence, to control his appetite for it” (1).  And similarly: “One who has the habit of indulging in intoxicating liquors so firmly fixed that he becomes intoxicated as often as the temptation is presented by his being in the vicinity where liquors are sold” (2).

Per the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), a diagnosis of Alcohol Use Disorder includes criteria such as: “A problematic pattern of alcohol use leading to clinically significant impairment or distress”; consumption of alcohol “in larger amounts or over a longer period than was intended”; a “persistent desire” for alcohol; craving to use alcohol; recurrent and/or continued use of alcohol resulting in impairment of social, occupational, or interpersonal functioning; tolerance; and withdrawal (3).

While the DSM-5 does not specifically use the term habitual drunkard among the diagnostic criteria for Alcohol Use Disorder, an individual who can be described as a habitual drunkard according to the above definitions, would also meet the criteria for a DSM-5 diagnosis of Alcohol Use Disorder.  It is important to note, however, that Alcohol Use Disorder criteria that are consistent with addiction to alcohol must be met in order for an individual to be considered a habitual drunkard. Examples of these criteria are craving, tolerance, and withdrawal.

The concepts of Habitual Drunkard and Alcohol Use Disorder can be significant factors in a variety of legal cases including, but not limited to Dram Shop, Driving Under the Influence (DUI), wrongful death, and personnel matters.  Such cases routinely involve forensic consultants with expertise in areas such as Dram Shop and Toxicology, however, Clinical Psychologists can also play a significant role in these cases.

For example, in a hypothetical case involving a visibly intoxicated individual leaving a bar, operating a motor vehicle, and causing a motor vehicle accident resulting in the death or injury of a second individual, a Dram Shop Expert may be retained address elements such as staff training and over service.  In addition, a Toxicology Expert can address elements such as alcohol intoxication and impairment, blood and urine levels of alcohol, and alcohol abuse and misuse.  A clinical psychologist could also be involved in such a case in that a clinical psychologist could formally determine whether the driver who caused the accident met the diagnostic criteria of Alcohol Use Disorder, including criteria consistent with addiction to alcohol, thereby also meeting the standard of habitual drunkard.  Such diagnostic information could then be used to support and strengthen the opinions of the Dram Shop and Toxicology Experts.

Exigent Forensic Consulting has experts in the areas of Dram Shop, Toxicology, and Clinical Psychology, and we are prepared to assist you with cases requiring expertise in any or all of these areas.  If you’d like to discuss your exact needs and learn more about how Exigent can help, reach out to our Business Development expert (Larry Wolf: 312-972-050, [email protected]).

Citations

  1. Definition of HABITUAL DRUNKARD • Law Dictionary • TheLaw.com
  2. Definition of HABITUAL DRUNKARD • Law Dictionary • TheLaw.com
  3. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association, 2013, pgs. 490-491

 

 

SJC Clarifies the Proper Measure of Damages for Wage Act Violations

Source: Melick & Porter, LLP

The SJC recently issued an opinion in Reuter v. City of Methuen regarding the proper measure of damages for violations under the Commonwealth’s Wage Act. The Plaintiff had worked as a custodian for the City of Methuen’s school department for 25 years when she was convicted of larceny in 2013. The City formally terminated her on March 7, 2013. The Plaintiff had accrued $8,952.15 in unused vacation time at the time of her termination. The City sent to the Plaintiff payment for her unused vacation time on March 28, 2013. The Plaintiff unsuccessfully challenged her termination before the Civil Service Commission and appealed to the Superior Court. While the appeal was pending, Plaintiff’s counsel sent to the City a demand for $23,872.40 representing a trebling of late vacation pay, plus $5,986.10 for attorney’s fees. The City sent the Plaintiff a check for $185.42, representing a trebling of the twelve percent annual interest on the Plaintiff’s vacation pay accrued during the three weeks between her termination on March 7 and payment by the City on March 28. The Plaintiff sued to recover the difference between her $23,872.40 demand and the City’s $185.42 payment. The trial court found that the Plaintiff was entitled only to treble twelve percent interest for the three-week delay in receiving her vacation pay, which she had already received. The trial court also found that the Plaintiff was entitled to attorney’s fees totaling over $88,000. The City appealed from the award of attorney’s fees and the Plaintiff cross-appealed the determination that she was not entitled to recover treble lost wages. The SJC transferred the appeals on its own motion.

The Massachusetts Wage Act, M.G.L. c. 149, § 148, requires that employees who are terminated are paid in full on the day of their discharge, and includes within its definition of “wages” any holiday or vacation payments. The SJC commented that the statute “leaves no wiggle room” and that prompt payment is necessary regardless of whether the failure to make prompt payment is intentional or not. M.G.L. c. 149, § 150 permits employees who are not paid in full and on time to bring a private action for injunctive relief, damages incurred, and any lost wages and other benefits. The SJC held that “lost wages” encompasses all late payments under the Wage Act, including unpaid accrued vacation pay. The statute permitting the private cause of action further provides that the employee “shall be awarded treble damages, as liquidated damages, for any lost wages and benefits.”

The SJC rejected the trial court’s finding that the Plaintiff was entitled to treble twelve percent interest for the delay in receiving her vacation pay because such an interpretation was not supported by the language of the Wage Act and was incongruent with its purpose. The SJC noted that there is no language in § 150 suggesting that the payment of interest is the proper remedy for a violation of the act and that the statute demands prompt payment of wages to employees who rely on such payments to pay for rent and other necessities. Therefore, the SJC found that “much more is therefore at stake than the loss of the time value and depreciation of sums owed” and that the remedy for late payment is not the trebling of the interest on those wages but the trebling of the wages themselves. The SJC remanded to the trial court the question of whether the Plaintiff could be compensated for some or all of her attorney’s fees, a portion of which was incurred in unsuccessful class certification.

 

The SJC’s Reuter decision serves as an important reminder to employers that plan to terminate employees to prepare for disbursement of all final wage payments before terminating the employee. Employers must also keep in mind that the term “wages” under the Wage Act is broad and includes accrued holiday and vacation payments. Employers should also note that the strict payment requirements under the Act for employees who are terminated are relaxed for employees who voluntarily resign their employment. In those instances, the Wage Act requires that employees are paid in full on the following regular payday or, in the absence of a regular payday, on the following Saturday.

If you have any questions regarding the SJC’s Reuters decision, the Wage Act, or any other employment-related inquiry, please contact our firm’s Employment Law Practices Group at (617) 523-6200.

 

 

Holly Rogers named to Ladder Down Class of 2022!

Source: Melick & Porter, LLP

Melick & Porter is pleased to announce its Diamond Level sponsorship of Ladder Down, a program that empowers women lawyers to excel through leadership, business development, and mentoring opportunities.

M&P’s very own Holly Rogers has been selected to participate in this valuable career enrichment program. Holly is one of just 24 talented women lawyers in the Ladder Down Class of 2022.

Ladder Down is a phenomenal program founded by two female attorneys, and we encourage law firms committed to the support of women lawyers everywhere to consider supporting its efforts.

 

Envista Forensics White Paper

Designed to Fail Controlling How Machinery and Systems React When Failure Happens

Author: Melissa Simpson, P.E., Project Engineer, Envista Forensics

Although the phrase “failure is not an option” may be a common philosophy, the prudent engineer will consider the effects of failure and the preferred outcome in order to mitigate dangerous or undesirable results. Though the future cannot be predicted with certainty, the certainty of failure is assured. When it comes to the design of machinery or systems, there is a reasonable expectation for engineers to render a design with careful consideration to operation in both ideal and less-than ideal circumstances. Following industry standards and best practices are implicit in responsible engineering. Read the full article

 

Uninsured and Underinsured Motorist Coverage in New Jersey

Source: Zarwin, Baum, DeVito, Kaplan Schaer Toddy, PC

On January 10, 2022, New Jersey lawmakers agreed to proposed litigation exposing insurers to potential bad faith lawsuits where an unreasonable delay or denial of payment on uninsured or underinsured motorist benefits is determined to have taken place. S.B. 1559, known as the New Jersey Insurance Fair Conduct Act, was then signed by Governor Phil Murphy, and the statute went into effect on Tuesday, January 18. Notably, the new law allows litigants successful in proving a claim under this statute to recover extra-contractual damages, up to three times the limit of their policy, as well as attorney’s fees.
As is common with newly enacted statutes, there is some question as to how the law will be applied. The law enables those entitled to uninsured (UM) or underinsured (UIM) coverage to file suit against an insurer who has:
  1. unreasonably denied a claim for coverage or payment of benefits,
  2. unreasonably delayed coverage or payment of benefits, or
  3. Any violation of the provisions of section 4 of P.L. 1947, c. 379 (C. 17:29B-4)[1]
An individual who brings suit against an insurance carrier, pursuant to this act, shall not be required to prove the insurance company’s actions were of such a frequency as to indicate a general business practice.
If the claimant establishes a violation of this new Act, they are entitled to:
  1. Actual damages caused by the violation of this act, which shall include, but not be limited to, actual trial verdicts that shall not exceed three times the applicable coverage amount; and
  2. Pre- and post-judgment interest, reasonable attorney’s fees, and all reasonable litigation expenses
It is important to note the new statute is limited to UM and UIM coverage, and not to other coverages provided by the insurer. Where, as is the case here, a statute contains such seemingly subjective standards as “unreasonable behavior,” the question will frequently arise how exactly an insurance company may properly act without triggering exposure. Aside from the specific examples identified above, there will, unfortunately, be little actual guidance until the statute is implicated in future litigation.
One final note on the breadth of applicability of the new statute. “Insurers” under the new law is defined to include “any individual, corporation, association, partnership or other legal entity which issues, executes, renews or delivers an insurance policy in this State, or which is responsible for determining claims made under the policy.” The clear implication based on the plain language of the statute is the newly created statutory bad faith liability could potentially attach to individual claims adjusters. Whether this is simply a poorly worded statute or the legislature’s intention was to actually hold individual adjusters personally liable is not yet clear.
Please contact Matthew Kessler ([email protected]) or Philip Odett ([email protected]) with any questions on the new statute or any aspect of New Jersey automobile coverage or litigation.
[1] Section 4 of the referenced statute (known as the New Jersey Unfair Claims Settlement Practices Act) lays out 15 prohibited actions; violation of these provisions is one of the bases for recovery under the New Jersey Insurance Fair Conduct Act.
 
<< first < Prev 1 2 3 4 5 6 7 8 9 10 Next > last >>

Page 2 of 17