Are You Really In Good Hands – Ensuring Your Insurance

“With insurance contracts… disputes are often about coverage”

Everyone should have insurance, and being insured does, in many ways, help us sleep at night. However, as with many contracts (and remember, an insurance policy is actually a contract), disputes sometimes arise. It is not unusual for there to be a dispute regarding the interpretation of insurance contract terms. And, with insurance contracts, those disputes are often about coverage. That is, the insurance company may claim that, even though you have insurance, your claim is not covered. This can be frustrating.

A short time ago, I attended a seminar on insurance coverage where recent Court of Appeals’ decisions served as reminders of some important issues to remember when faced with a coverage dispute.

First, Oregon law provides that if an insurance claim is not paid within six months of the filing of a proof of loss, the insured is entitled to a recovery of attorney’s fees if the dispute goes to court.

Second, many insurance policies include a “contract statute of limitations.” Ordinarily, a party to a contract has six years to bring a lawsuit. However, an insurance contract could provide for a much shorter statute of limitations; say, one year instead of six.

Finally, one must be careful that they are accurate when submitting a claim. Under certain circumstances, an insurance company has the right to cancel the insurance policy if the insured makes misrepresentations about the loss during the adjustment of the claim. In fact, accuracy matters in all insurance transactions; not only in submitting claims but in submitting applications and underwriting information as well. Coverage could be denied if information provided to the insurance company was not accurate, no matter when that information was provided.

In summary, treat any insurance claim as a contract dispute and pay careful attention to the details.

Steven W. Seymour is an accomplished business litigator with an emphasis on labor and employment law as well as fiduciary litigation. To contact Steve, or another attorney at Samuels Yoelin Kantor, call 503.226.2966, or by email at info@samuelslaw.com.

 

Be Alert: Join the Oregon Scam Alert Network

The Oregon Department of Justice wants to help you stay alert for consumer issues.

How many emails do you get every day? Here’s an opportunity to sign up for email alerts that will provide value – and protection – for you and your clients. The Oregon Department of Justice has a free email alert, to notify us of emerging scams, fraud and other consumer problems. As they explain, “We will keep you updated about important consumer information to educate and protect your friends, family, coworkers and anyone else before they fall victim to scams and fraud.”

Past alerts have included phone tax collectors, ransomware and counterfeit tickets.

Now… stay safe out there.

Competency Can be Tricky: Don’t Rule Out the Nonagenarian

The brain is a challenging maze and competency blends medicine and law in a complicated fashion.

Sumner Redstone, at 92 years-old and the controlling shareholder of his $40 billion media empire, Viacom Inc. and CBS Corp. has accomplished a lot. And a court recently ruled he can continue to make his own decisions, including deciding who should be his health-care agent.

This ruling disappointed (to say the least) his former girlfriend and longtime companion, whom he had evicted last fall and removed as his health-care agent, before also removing her from his Will, in which she was to inherit $70 million in cash and real estate.

Although a speech therapist had to interpret Mr. Redstone’s impaired speech, the judge was swayed by the video deposition in which Mr. Redstone made it clear that he wanted his ex-girlfriend out of his life and preferred his daughter to be his health-care agent. The judge remained unconvinced by an expert witness who failed to overcome the presumption of capacity.

The brain is a challenging maze and competency blends medicine and law in a complicated fashion. Our country’s ageism tends to count out anyone over 65, but the judge in this hearing found otherwise.

Due Diligence: Just Who Are You Dealing With?

DO YOU KNOW WHO YOU’RE DEALING WITH?

Due Diligence Before You Enter Into An Agreement

I’ve represented a number of clients over the years who failed to perform any due diligence with regard to the party they were contracting with before they entered into the contract. Had they performed some quick and easy due diligence before they signed the contract, they would have saved themselves a lot of headaches, hassles, and money.

Before you enter into a contract and obligate yourself to do something, take some time to learn about the other party. If you are entering into an agreement with a business entity (e.g. corporation, LLC), check the Secretary of State/Corporation Division website to learn about the entity. You’ll be surprised the number of situations I’ve seen where clients entered into contracts with defunct or non-registered entities. Find out who the principals of the entity are. The Oregon Secretary of State website enables you to do a business search by individual– whereby you learn of the businesses (active and inactive) for which an individual has been an owner or corporate officer. Red flags include individuals who started numerous businesses in the past and businesses that fail to file annual reports and pay annual fees.

If the person or entity with whom you’re negotiating provides services which requires a license or registration (i.e. contractor, realtor, medical professional, etc.), you should be able to search on-line records regarding their licensing history and complaints. Red flags include numerous complaints, suspensions, or an inactive license/registration.

If you are contracting to perform work on real property, perform research with regard to the ownership of the real property (after obtaining a good address for the property) to determine who  owns the property and who has authority to allow work to be performed on the property. If you cannot locate on-line information with regard to the subject property, contact a local title company and ask for a trio or list-pack for the property.

In light of the amount of information available on the internet these days, you should also consider doing a Google or Bing search with respect to the potential new client and/or their principals. You might be surprised as to the amount of information available about them on the internet.

Your time is valuable. You don’t need to be dealing with individuals or entities who have bad intentions or who are deceptive. You’re probably better off taking a vacation to the beach or the mountains than you are dealing with unscrupulous people. Take some time to learn about the party with whom you will be dealing before you obligate yourself or your company. You may find out that they aren’t who they claim to be. Such time is time well spent. The time spent performing due diligence before you enter into the contract could be as important as the time spent fulfilling your obligations under the contract. As the old Benjamin Franklin quote goes, “an ounce of prevention is worth a pound of cure.”

Oregon First to Pass RUFADAA – Allowing Legal Access to Your Digital Assets

Oregon becomes the first state to pass RUFADAA: The Revised Uniform Fiduciary Access to Digital Accounts Act.

SYK has been advising our clients, friends and colleagues about managing Digital Assets (your online accounts) for many years, lamenting the fact that the Internet was outrunning the law. We’ve been writing about it, testifying before legislators, speaking at seminars and encouraging everyone to prepare a VAIL – or Virtual Asset Instruction Letter. 

We are happy to report that there is new light on the issue. Oregon has just become the first state in the nation to pass RUFADAA: The Revised Uniform Fiduciary Access to Digital Accounts Act. Oregon Senate Bill 1554 was signed by the Governor yesterday and will become effective January 1, 2017.

This law is important in that while it allows for personal representatives, powers of attorney and trustees to have access to online accounts to perform their fiduciary duties, it also requires everyone to be proactive in affirmatively stating in your trust or estate plan that you grant such authority; otherwise, the online providers’ terms of service agreements will control. And those agreements often give the online provider all of the power, including the power to hit “delete” when they know someone has passed, which could destroy vital financial information or precious memories you had intended to share with those you leave behind.

So dust off that will or trust you prepared so long ago and call your estate planner; it’s time that your estate plan caught up with the Internet.

Attorney Victoria Blachly is a fiduciary litigator who has been working on digital asset legislation for six years, testifying before legislators and presenting at seminars throughout the U.S. The issue became very personal to her when she lost a young niece and saw how invaluable her social media was to the grieving family and friends she left behind. Victoria worked closely with one of SYK’s estate planners, Jeff Cheyne, and one of SYK’s business attorneys, Michael Walker, to pursue legislation that was initially hard fought by very large and well-funded online providers.

Victoria Blachly and VAIL Featured on The Bulletin

The Bulletin, a publication of Bend and Central Oregon, authored an article featuring SYK attorney Victoria Blachly.  The article, titled “Estate Planning in a Digital World,” focuses on the Uniform Fiduciary Access to Digital Assets Act (Oregon Senate Bill 369), Virtual Asset Instruction Letters (VAIL), and understanding what happens to your digital life after you pass. In March 2015, Blachly spoke in favor of the act during a hearing held by the Senate Judicary Committee.  Read the full article on The Bulletin’s website.

Contact Samuels Yoelin Kantor to prepare or update your estate plan to include digital assets.

Undue Influence – Tripped Up in Court

Recently a Missouri jury resolved a deceased real estate magnate’s estate by finding his socialite widow had used undue influence to gain control of his company. The “high-stakes drama” had a cast of characters, that included politically connected attorneys and allegations of a manipulative second wife that unduly influenced her ailing husband to change control of the ownership interest in his company just a few months before he died.  Although the wife claimed that the decedent’s children had not been attentive to their father in the years before his death, the particularly damning evidence was from the decedent’s long-time lawyer, who kept notes about his client’s deterioration and the wife’s “relentless yelling and screaming” over estate amendments.

The case emphasizes the incredible value of long-term relationships with good counsel.  I’m proud to work with attorneys that have represented some clients for decades, looking out for their interests all that time. It is an honor and a responsibility that we take seriously.

Upcoming SYK Event: Do You Know Where Your Digital Assets Are?

In the U.S., 2.6 million people die every year. How many had their affairs in order? How many left passwords and instructions for dealing with their online accounts and information?

As trustees, personal representatives, or family and loved ones left behind, how does one go about locating, accessing or managing important digital assets, such as electronic financial statements, digital family photos bequeathed to relatives, or wrapping up an online business?

Learn more from SYK litigator and digital asset lobbyist, Victoria Blachly, about planning for what happens with digital or virtual assets and online information when you or your client dies or becomes incapacitated, and the need for a VAIL (Virtual Asset Instruction Letter). This seminar will provide helpful planning tips and an update on the legislative changes in Oregon – and nationwide – where stakeholders are wrestling with necessary statutory changes.

Glenn Williamson, founder and CEO of WebCease, Inc., a Portland-based business, will also present on how his company helps heirs, executors, trustees and administrators find online accounts that are digital assets for the estate of the deceased.  WebCease’s rapidly expanding service identifies active online accounts and instructs on the different options for retrieval, closure or memorialization in accordance with the policies of each site. Learn how using their affordable service can save time for families, assist fiduciaries, and help reduce the risk of identity theft, with their “nothing found, nothing charged” policy for legal professionals who offer the following services to their clients: Probate Administration, Estate Administration, Trust Administration, and Guardianships/Conservatorships.

For more details, and to RSVP visit our event page.

Elder Financial Abuse and Escrow Agents – Proposed Oregon House Bill 2780 (HB 2780)

Oregon’s recent House Bill 2780, sponsored by Rep. Julie Parrish of West Linn, seeks to diminish the potential for elder financial abuse by brokers with modifications to real estate regulations that govern property sales for older Americans.

At first glance it might seem like the bill complicates sales for homeowners ages 65 and older, but the extra check serves to protect older sellers from unknowingly vending their property for less than its value.

House Bill 2780 simply adds a ‘pause button’ to any transaction with both of the following conditions:

• A seller ages 65 or older
• A sale price more than 20% below the property’s appraised or assessed value

As heinous as it might seem, older property owners are victimized by greedy brokers across the nation. People 65 and older are sometimes targeted because it is more likely that they have reduced cognitive functioning, marked by trouble remembering, difficulty learning new things, concentrating, and making decision that affect their everyday life. The Center for Disease Control reports that the number of Americans ages 65 years and older who suffer from cognitive impairment may surpass 13.2 million by the year 2050. Dishonest financial advisers know these statistics just as well as the healthcare professionals.

Read more about how Salem is working to help seniors with House Bill 2780 on OregonLive.

Investor Defender attorneys at Samuels Yoelin Kantor have focused on protecting investors from financial fraud and abuse for more than 32 years. Securities attorney Darlene Pasieczny states, “ We have experience with unscrupulous brokers convincing owners to sell their homes or to take second mortgages in order to purchase risky financial products for the benefit of the commissioned broker.” If you or a loved one has reason to be concerned with a sale or transfer of funds to purchase alternative or illiquid securities, or swing of more than 10% of reported portfolio value in any account statement, please contact us to understand your potential options for recovery.

The Art is Not in Making Money, But In Keeping It

Earlier this week I received an interesting email from Allen Trust with a short Wall Street Journal article and video. It is a vivid illustration of how quickly finances can run amok when there is no plan for protection and preservation – regardless of your income level.

As the saying goes, “The art is not in making money, but in keeping it.” Sit down with your family, financial planner, accountant, and/or tax and estate attorney to put your plan into place.