Elder Abuse & Neglect Law Blog

Tax Ramifications in Sex Abuse Cases

We learned a great number of valuable lessons from a recent case against a Native American Tribe and wanted to make sure to pass on at least one of these lessons here. I’ll just mention one for this post and perhaps save the rest for future posts: Remember to think about taxes, especially if you want a settlement to be considered tax-exempt.

A recent case involved a client, who was raped by a juvenile offender. That juvenile was a member of a Native American tribe and had a long list of criminal convictions who had been subject to an equally long list of court orders and restrictions. As a ward of the tribe, his actions were under the control of the tribe’s Indian Child Welfare Department. We thought the department had abrogated its responsibilities and acted negligently in several of its decisions and actions, which all led inexorably to the rape of our client. We decided to sue the tribe for the injuries our client suffered. We eventually settled the case for $1 million

Here’s where the issue of taxes enters the picture: In 1996, the “physical” was inserted into the Internal Revenue Code 104(a)(2), requiring that for a settlement to be considered tax-exempt and eligible for a tax-exempt structured settlement, it must have its origin in physical personal injury or physical sickness.  For a settlement to have its origin in physical injury and thus be tax-exempt under IRC 104(a)(2), there must be some Observable Bodily Harm (“OBH”).  Some examples of OBH include bruises, scratches, swelling, cuts and bleeding.

Since 1996, the taxation of damages received from sex abuse cases has been particularly problematic.  Sex abuse cases inherently involve issues regarding the preservation of evidence of physical harm.  By the time the abuse has been reported or the victim can articulate the abuse, any physical injuries may have healed leaving little or no evidence of physical injury.  This can make it difficult to meet the OBH standard to satisfy the physical injury requirement of IRC 104(a)(2).

The complaint or settlement demand documentation remains a critical piece of the puzzle.  If these documents allege only non-physical injuries such as the intentional or negligent infliction of emotional distress, classifying the damages as taxable is consistent with the pleadings.   Therefore, remember to include details of physical injury as the origin of a claim in your complaint or settlement demand, to support the position that the settlement is tax-exempt as being based in physical injury.  Also remember to collect and preserve proof of any physical injury whenever possible, as additional support just in case. 

When closing a sex abuse case, the negotiation and finalization of the settlement can also help ensure that the damages will be classified as unambiguously tax-exempt.  Do the parties, and most particularly the payor, intend the payment as compensation for personal physical injuries?  If so, the settlement documentation should specifically state such intent.  Be sure that you insert the necessary language in your pleadings and in any settlement documents in order to avoid adverse tax consequences.

 

The Insurance Industry’s Propaganda Machine

One of my pet peeves is the attitude of people about personal injury lawsuits.  So many are critical of such suits because of the propaganda machine of the insurance industry and the Chambers of Commerce that have filled their heads with so many lies.  But many don’t seem to understand the consequences of denying people a recovery for their injuries caused by the negligent conduct of others.

In many instances where people have suffered severe injuries as a result of the negligence of others, their only hope of a private method of compensation is a lawsuit. They have staggering medical bills; they cannot work because of their injuries.   If they are denied a recovery, their only recourse is to have the government pay the bills.  So this propaganda scheme is really one of transferring the cost of injuries from negligent conduct from the insurance companies who were paid a premium to cover these risks, and instead transfer the cost to the taxpayer.  Taxpayers should be offended!

So the next time you hear an offensive story about a personal injury lawsuit, look at the source of the story and determine the true facts.  It is probably an insurance company that is trying to get the taxpayers to pay for the bill so that they can keep the insurance premium.

 

Suing the Government – Firefighters Can Sue Their Employer

A lot of people don’t know that a firefighter can sue his employer for negligence.  A lot of lawyers don’t seem to know this either.  The law of Washington is that generally an employee cannot sue their employer for simple negligence.  Instead the system is run by Labor & Industries in a no-fault system with limited benefits.  But the Legislature made an exception for firefighters and police officers several years back.

Along with Ron Meyers and his staff, we have handled a number of such cases.  A recent case involved a hose testing operation.  A hose testing device is required when these exercises are performed.  But instead, the officer in charge ordered that the testing be done without this protective device.  Unfortunately, the hose burst during the test, and our client was hit by the highly pressurized hose.  He severely injured his leg and his back.  He had incurred medical bills of over $160,000 and lost over $200,000 in wages.  He also permanently lost the ability to work as a firefighter, something that had always been his calling.

This unique law does have a twist.  Normally if you sue a third party when you are receiving L&I benefits, you then are required to reimburse L&I.  In this instance, however, you do not reimburse L&I, but your recovery against your employer is limited to damages in excess of what L&I has paid.  It is a twist that can create a number of confusing issues in a trial. 

 

Premises Liability – The Dangers of Restaurant Play Areas

These restaurants that cater to children with play areas and equipment need to make them safe.  Theyplay-area-1-1.jpg encourage these kids to play and climb, but then sometimes leave them exposed.

We had a case against Carl’s Jr. Restaurants.  Our 4 year old client was on the play equipment.  Mom was sitting nearby.  There was a gap between the wall and the netting that allowed entry behind the equipment. Our inquisitive youngster, like most kids, was able to find this gap and used it to gain entry to the area behind the equipment.   The youngster then had crawled up the back of one the tubes, lost his grip and fell about 10 feet to the solid floor below.  Unlike the floor that is padded inside the equipment, in this area the floor was solid concrete.  The boy suffered a significant traumatic brain injury that will impact the rest of his life.

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As unbelievable as it seems, store personnel had seem other kids gain access to the back of the equipment on prior occasions, but the manager was concerned about overhead, and refused to have the gap plugged of otherwise covered.

Experts were quick to criticize this design that would leave such a gap.  These kids are encouraged to be climbing all over this enticing equipment; these restaurants need to make sure they are safe.

We secured a $2 million settlement for this youngster, and have the money tucked away in a structure to assist him for life.  Too bad they didn’t fix this before he had his fall.

 

Imagine

Today marks the 30th anniversary of John Lennon’s death. Along with the Kennedy assassinations and the assassination of Martin Luther King, John Lennon’s murder impacted me deeply.  John helped shape my world view as he dared us all to “imagine all the people living life in peace” in a world where the unity of humanity transcends all divisions of race, nation, gender, caste and social class while celebrating the diversity of humanity. As John himself acknowledged, some would say that he was a dreamer.  This may be, but it is a dream that I and a host of others shared with him.Lennon jpg

Sadly, I don’t think we are any closer to reaching John’s ideal than we were 30 years ago.  Wars still plague us, greed seems to have become a virtue rather than one of the seven deadly sins, and the focus of our society seems to be on “me” as opposed to “we”.   We still mistakenly cling to the belief that the best way to influence people is through fear and force rather than through the power of love, compassion and understanding.

As I reflect on and imagine what it would take to have a world where there is “[n]o need for greed or hunger” and “[a] brotherhood of man”, I realize that John’s dream cannot happen without the rule of law.  The rule of law provides a peaceful means for people and even nations to resolve their differences and disputes.  Reliance on the rule of law promotes equality, justice and individual freedom. The rule of law helps us answer one of the fundamental questions at the heart of any society – who will decide what is yours and what is mine.

Today, as we reflect on the life of John Lennon, imagine what you can do to increase peace and understanding and how we as a society can promote the rule of law over tyranny and fanaticism.

 

Suing the Contractor, Even when Employer is Subcontractor

Why would an employer have laborers work on a cliff without any fall protection safety? Two years ago, Mr. Perez was tightening barbed wire to a fence post when he fell backwards off a cliff in Eastern Washington. His horrified co-worker watched him land head first, then bounce straight back before “continuing to fall like “a fan” head over heels down a canyon wall. Mr. Perez, father of young children, became an instant quadriplegic.

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SKW was contacted by attorney Tim Gresback of Moscow Idaho. Mr. Gresback was the president of the Idaho Trial Lawyers Association and had worked with Karen Koehler before. For the next year and a half we tried to figure out why the companies doing the work created such a dangerous situation.

Under Washington law, there is a principle known as “Stute”. Stute requires that a general contractor maintain a safe work site. Here, the general contractor had no idea how to work on a cliff so it hired a subcontractor. But it took no steps to see if the subcontractor was keeping employees safe. The State of Washington did an investigation that ruled against the general contractor and issued a small fine. But what about Mr. Perez.

Mr. Perez had the right to sue the general contractor. Even though this was a work injury, Mr. Perez’s employer was the subcontractor. Because there is worker’s compensation in Washington, an injured worker cannot sue their employer. But they can sue if someone other than their employer caused their injury. The state of Washington encourages lawsuits against others who injure workers. When lawsuits are successful, the state (us the tax payers) can be paid back the medical expense and lost wage payments of the worker. In a case like Mr. Perez, those payments are in the hundreds of thousands of dollars or more.

SKW through Karen Koehler, Paul Stritmatter and Kevin Coluccio brought a lawsuit on behalf of Mr. Perez and his three dependent children in Eastern District Federal Court, Spokane. For the next year and a half we battled with the general contractor. We even went with all five of our experts to the cliff, though as you can see from the picture, we had proper safety gear. Exactly two years after Mr. Perez’s tragic injury, the case settled for $7 Million which was the policy limits available.

Both the general and subcontractor are still in business and working together. But there is now a difference. Now, their workers attend regular safety meetings, minutes are kept, fall protection gear is provided, and there is a fall protection system in place

The Birth of a Great Friendship in Moscow, Russia, 1979

photo 19.JPGPaul Stritmatter and Keith Kessler met on the streets of Moscow. Russia, that is. In October 1979.

You will recall that 1980 the Olympics were scheduled to take place in Moscow. In an apparent attempt to learn more about the expected American tourists, Russia offered an exchange of Washington State lawyers with Moscow lawyers. The plan was to learn the likes and dislikes of the American tourist. It was not a very successful venture.

The treatment of the American tourists was deplorable. The examples were many. The hotel rooms were bugged. (Yes, we found the listening devices in our rooms.) The food was unpalatable. ( Paul lost 14 pounds on the trip.) One evening it was announced that we would be given an “American breakfast” the next morning. They served hotdogs. Keith was (and is) a vegetarian. His food choices were even more limited. At times all he and Lynn were served was a plate of radishes. The propaganda was limitless. (One day they told us the US Attorney General had resigned. Many of us were shocked. Turned out it was not true. Another time they told us a horrible snowstorm had hit the State of Oregon, and many people had died. Turned out it was not true.) The airplanes were beyond belief. (We had airport delays of 14, 16 and 20 hours on three different in-country trips.) When we landed in Kiev, the door to the plane was frozen shut and it took them several hours to get it open. In the mean time we sat in the plane without any air-conditioning or fresh air. The temperature became more than uncomfortably warm.

There were 48 lawyers and spouses on the trip. The conditions finally became so bad, that all 48 of us voted to leave the country and either fly to western Europe or back to the USA. Like nearly all requests of our hosts during the trip, our request was denied.

So it was with that background that Paul and Keith first met. They enjoyed one another even while they were not enjoying the trip itself. They bonded. It was hoped that they would remain on contact with one another in the future.

A “reunion” of all 48 people was held the following February to reminisce and share photos. During that party, Keith announced that he was looking to change jobs. He was offered jobs at three Seattle firmphoto 21.JPGs on the spot. Paul then got into the act. He said that if Keith really wanted to have an active trial practice, he would move to Grays Harbor. While the statements by Paul we made in jest, the following Tuesday, Keith applied for a job with Stritmatter and Stritmatter. Not wanting to lose such a valuable lawyer to the firm and to the community, Keith was offered a job that Friday.

And Keith was not alone. He brought Lynn with him. Shortly after that they were married. Keith has not only gone on to have a sterling career as a lawyer out of Hoquiam, Lynn went on the be elected to the Legislature from the area, and served as the majority leader in the House for 8 years before her retirement in 2010.

And the 1980 Olympics. Oh yeah, they were boycotted by the USA in protest of the Russian involvement in Afghanistan. (And because of all our protests on how they treated the American tourist.)

 

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