The Massachusetts Legislature has rewritten the Homestead Law which takes effect March 16, 2011! This is exciting news for attorneys and property owners alike.

The homestead was enacted to protect homeowners from liens (a Homestead will not protect you from a Foreclosure) as long as the homeowner uses the property as his or her principal place of residence. Therefore, if you own multiple properties a Homestead can only be filed on your principal residence.

The statute now provides for an automatic homestead of one hundred and twenty five thousand ($125,000.00) dollars, without having to file any Homestead Declaration.

Property owners should be aware however, that up to a half of a million ($500,000.00) dollars of protection is available to those who file a Homestead Declaration with their county registry of deeds. While this new automatic homestead protection is a significant development homeowners should still file for the increased coverage since it is a great bang for your buck. It is still only thirty five ($35.00) dollars to file a Homestead Declaration plus a dollar or two (for postage) depending on your county. So that is still ONLY $36.00 or $37.00 dollars to file!

If you are unsure whether you have a homestead or if you know that you need one contact an attorney to have him or her explain the nuances behind the new Homestead Law.

In general, most states allow the potential recovery of damages for the following:

• The nature and extent of the injury, including whether the injury is permenant or temporary, and the amount of any future disability;
• Medical expenses, both for past and future treatment, if necessary;
• Lost wages, which includes both the past lost wages from the injury and any loss of future capactity to earn a living in your particular trade or profession;
• Pand and suffering;
• Loss of consortium for a spouse, parent or child.

1. Do not give any statements (written, recorded, or oral) to anyone concerning your accident or injuries without first getting our approval.
2. Do not make any incorrect statements about prior injuries or accidents to any doctor who treats or examines you. If you don’t remember, say so.
3. Do not change your address or employment without notifying your attorney.

Things for you to REMEMBER:

Address and Phone: Inform your attorney immediately of any change of address, telephone number, or employment.

Car Repair: If your vehicle was damaged, try to obtain pictures before you get it repaired. Use color film and take a whole roll of pictures. Bring the film to us and we will have it developed. If you do not have a camera, please call and we will make arrangements to take the pictures.

Medical Items: Save all pill bottles, casts, braces, and any other items from your doctors.

Photographs: Give us any pictures and videos of the accident or accident scene that you or anyone else has taken for you.

Your job: Tell us of any changes in your job, such as job duties, salary or anything else work-related.

Receipts: Be sure to obtain and save all receipts itemizing any and all expenses you incurred as a result of your accident. Receipts must be dated and contain legible and complete vendor identification.

New information: Inform us of anything you think has a bearing on the case, including extensive medical treatment or hospitalization.

Five BIG MISTAKES clients make:

1. Not seeing the doctor if you are in pain.
2. Not doing what your doctor tells you.
3. Not keeping your doctor’s appointments.
4. Discussing your case with anyone other than your attorney or your doctor.
5. Failing to tell your doctor about medical problems due to the accident.

Follow Your Doctor’s Advice
Be sure to do what your doctors tell you to. There is never a reason or excuse to miss a doctor’s appointment. By missing an appointment, you are saying to the doctor and insurance company that you aren’t hurt enough for it to matter. This may harm your claim. It is important for your doctor to have up-to-date information on your condition and know how you are feeling. Each time you go to the doctor and report that you are still in pain, your doctor makes an entry in his or her records. Some clients get discouraged and do not see their doctor even though they are having pain.

Our job is to recover compensation for the pain and suffering that you have endured. Not going to the doctor is a good way to prove, instead, that you are not hurting. If you are in pain and you do not see a doctor, the insurance company and the jury will not believe that you are having pain. It is very important for you to work hard to get well and to go to all of your appointments.

First Steps In Representing You
When you are first interviewed, general information regarding your case is obtained. Materials relating to things you should or should not do will be furnished to you. You will be requested to sign certain authorization forms which will allow us to obtain your medical records and other necessary information.
We will notify the person who was responsible for your injury and/or their insurance company that you have retained us as your attorneys. Requests for your chart and billing information will be sent to all of the doctors and hospitals involved in your care.

Who To Talk To
Do not talk about your case with anyone except this office and your doctors. If your own insurance company wants to talk about your case before they pay your medical bills, please refer them to us.

What To Sign
Any necessary information from employers, schools, or other persons will be obtained by us. You should not sign anything for anyone else until you check with us first.

Medical Payments Before Your Case Is Settled
While your case is pending against the insurance company of the person who caused your injury, we try to arrange to have your medical bills paid by your own insurance company. This could be from the medical payments provision of your automobile insurance policy, your health insurance policy, or, if applicable, worker’s compensation insurance. Please be sure that all medical bills related to your injury are sent to our office so that we may forward them to the appropriate insurance company.

Keep Detailed Records
Please be sure to record the following:

• Lost work time and wages.
• Other expenses resulting from your injuries, i.e., transportation, home care, etc.
• Pain and suffering.
• Your physical limitations.

It is important to make your entries on an ongoing basis. A summary at the end of each month will not be as helpful to us. Copies of checks and receipts of payment, as well as the above records, will be very helpful when the insurance company or an attorney asks you to recall your pain, physical disabilities, and any out-of-pocket expenses including medication.

Medical Liens
Sometimes of our clients are involved in accidents where there is no medical payments insurance, worker’s compensation or private health insurance. In such cases, your doctor will expect to be paid by you at the conclusion of this case. Often they will require you to agree, in writing, to have us pay them directly from the proceeds you receive. State laws sometimes permit health care providers to file a “lien” which must be paid out of the proceeds of your case. If your doctor asks you to sign what is often called a “lien letter,” be sure to contact our office. In some cases, it may not be appropriate for you to sign such an agreement.

Subrogation
If any insurance company pays some of your medical or other expenses arising from your injury, the law provides “subrogation.” This means that the insurance company stands ‘in your shoes’ so to speak, and can recover some or all of the amount paid to you by the liable party. If this is the case, the company is usually required to pay their proportionate share of the attorney’s fee and costs in connection with the recovery. This is handled on a case-by-case basis.

You May Be Watched and Photographed
When a claim is filed by an injured person, insurance companies routinely conduct a detailed investigation of the injured person’s background. It is not uncommon for an insurance company investigator to park his surveillance van near your house and videotape your activities. These investigators work very hard to obtain videotapes of claimants lifting heavy groceries or engaging in strenuous physical activity. However, these same surveillance tapes have been useful to corroborate our client’s limitations, including the use of canes, crutches, etc.

If you believe you are being watched, please call us and try to avoid the camera. Do not exaggerate your limitations or pose for the camera.

Bankruptcy
If you are considering filing bankruptcy, you should know that you may lose all rights to your personal injury case. The Bankruptcy Court can take over your case, settle your case and give your settlement money to your creditors, and you will receive nothing. Be sure to talk to your lawyer before filing bankruptcy.

Why Does It Take So Long?
We cannot make your claim until after the doctors have given us reports stating exactly what your medical condition is and what they expect it to be in the future: in other words, until you have reached “maximum medical improvements.” Many times the doctors will be very slow in making these reports. We may even, on occasion, ask you to contact your doctor to speed up this report. If we try to settle your case before your medical condition is stabilized, you may lose money that you might be entitled to for a condition that did not show up until after your case was settled.

It is important to know that your case will not be settled until the damages have been determined and all investigations to determine who is liable have been completed. It generally takes several months to gather the necessary information. If a trial becomes necessary, it can take several years to complete a case. One of the most difficult requests we make of you is to have patience. We will work as hard and fast as possible to settle your case quickly.

What is the Value of My Case?
It is impossible for us to tell immediately how much money, if any, you will recover in connection with your case. There is no formula and each case is unique. In cases of serious injury, the ultimate recovery is often related to the amount of insurance coverage available, as well as the nature, extent, and duration of your injuries, along with an assessment of liability. As your attorneys, we feel it is our primary duty to obtain an amount of money which will fairly and justly compensate you for your injuries. We will make every effort to do this by locating all sources of money. We will advise you of our evaluation in this regard.
In general, most states allow recovery of damages for the following elements of damage:

The nature and extent of injury, including whether the injury is permanent, and the amount of disability.

• Medical expenses, both already incurred and reasonably certain to be incurred in the future. This includes mileage to and from the doctor or hospital.
• Wage loss (past and future) and damage to property (including your motor vehicle and other possessions)
• Pain and suffering.
• Loss of consortium (past and future) for your spouse.

Filing a Lawsuit
It may be necessary to file a lawsuit to obtain an adequate recovery. This is a legal decision that should be made by your attorney with your input. Before filing suit in your case, we will obtain your permission and explain to you why we believe a lawsuit should be filed.

Although a lawsuit may have to be filed, settlement is always possible. Negotiations continue and only a small percentage of lawsuits actually go to trial.

The following steps are necessary to bring a case to trial:

A. Pleadings
Pleadings are the documents parties file in court that form the basis of a lawsuit. This is intended to be general information only. Each case is unique.

Complaint or Petition. A lawsuit is filed against an opposing party by filing a document in court known as a complaint or petition. The person who brings the action is the plaintiff (you). The person against whom the action is brought is the defendant. The petition is a statement of facts alleging the names of the parties and alleging why the conduct of the defendant entitles the plaintiff to recover damages.

Summons. Once the plaintiff’s petition is filed, a “summons” is issued to be served on the defendant by an officer of the Court, usually a Deputy Sheriff or process server. This informs the defendant that a suit has been filed and that a response must be made within a given period of time or a judgment will be taken against him.

Answer or Motion. The response filed by the defendant is called an Answer, which is prepared by the attorney for the defendant. Alternatively, if a defense attorney feels there is a fatal flaw with the lawsuit, they may file a motion to dismiss the complaint or to strike portions of the complaint.

B. Discovery
Once an action is filed, both sides have a right to “discover” facts concerning the opposing party’s case. Normal discovery proceedings include written interrogatories, depositions, production of records, and sometimes medical examinations.

Interrogatories: Each side may serve written questions on the opposing party, called “interrogatories.” We will serve interrogatories on the defendant on your behalf, and the defendant will serve interrogatories on you. You are required to answer these questions within a prescribed period of time, in writing and under oath. Our staff will assist you in preparing your answers.

Depositions: A “deposition” is an oral and transcribed statement, under oath, which may be used by either side in a lawsuit. It has the same effect as testifying at trial. It is used to learn as much as possible about the other side’s claims or defenses. Those present are the parties concerned, their lawyers, sometimes an additional witness or two, and a court reporter who records the questions and answers.
The lawyers normally agree in advance where the deposition will be held. It is usually in the office of one of the lawyers.

You are required by law to give a deposition. This is not something in which we have a choice. Because of this, we will need your full cooperation. Prior to the deposition, your lawyer will go over the facts of the case with you and answer any questions you might have.

YOUR DEPOSTION IS OFTEN THE MOST IMPORTANT PART OF YOUR CASE. It is important that you be prepared well in advance of the deposition date.

In giving a deposition, there are a few rules to follow:

• Always tell the truth, even if it hurts your case.
• Answer only the questions. Do not make any voluntary statements or speeches.
• Think before you make any answer to any questions. If it concerns a matter about which you do not know, or a detail you do not remember, you may so state. However, once you have stated that you do not know or remember, it’s hard to change your testimony at trial.
• Always be polite.  Frequently, the other attorney will ask you questions which will seem to have no bearing upon the case. Nevertheless, it is your duty to answer these questions, notwithstanding the fact that they may irritate you. Never conceal prior injuries or prior illnesses. Remember, the other side has the means of obtaining such information.

Mediation
There are occasions when the parties submit the dispute to “mediation.” The parties meet with an independent third person, usually an experienced lawyer or retired judge, who assists the parties in arriving at a settlement. The results are not binding. It is informal and less expensive than a trial. If this is an option in your case, your lawyer will discuss it with you.

Uninsured/Underinsured Driver
If you were hit by an uninsured or underinsured motorist, you may be eligible for benefits under your own policy or the policy that covered the vehicle you were in. Many insurance companies have special “uninsured motorist” provisions. In most cases, you will be able to collect for your lost wages, medical bills, pain and suffering, etc., in the same way as if the driver that hit you did have insurance. We ask that you provide us with a complete copy of your own insurance policy in force at the time of the accident.

Claims Against the Government
Any injury claim, whether it stems from a car collision or other event that involves the government, is subject to special rules. The governmental entity involved may be the state, a city, a county, local government, or the United States. Generally, a Notice of Claim must be filed with the appropriate governmental agency very soon following your injury. If you believe that the government may be involved in your case, please notify us immediately.

1) When bidding or quoting a job, be sure to set a deadline for the owner or GC to accept. That way, they won’t try to hold you to an outdated price or schedule you provided at a time when you had a full plate.

2) Be sure your contract sets specific times for interim payments and clear rules for determining when they are earned and how much you are entitled to collect.

3) Add a line on your quote or estimate stating that you reserve the right to add an interest charge of X% per month if your bills aren’t paid within a certain time after the due date, and then DO IT.

4) Make sure your contract gives you the right to back charge attorneys’ fees if you have to use one to collect from the owner or GC.

5) State up front in the contract that you reserve the right to discontinue work if any interim payment is more than a certain number of days late.

6) Make sure each invoice clearly documents what work is covered and has the due date printed clearly on it.

7) Add a clause in the contract requiring the owner and / or GC to notify you of all known problems with the work within 3 days of receiving an interim invoice to allow you to begin fixing them promptly. Your contract should clearly make it the owner / GC’s responsibility to address problems promptly or keep paying. Obviously all problems will have to be fixed before the final payment is due.

If you are notified of a problem, document it in writing along with your plan to fix it, specific times for fixing it, who is responsible for providing materials, etc.

9) If you are asked to provide an “extra” or make a change to the original plan, don’t even start it until a detailed change order has been signed.

10) Know your state’s mechanic’s lien and bond claim laws and use them to your advantage.

1. Timetable: Give the project firm starting and ending dates. These can be adjusted as needed, for example if material delivery is delayed. Just remember to get any changes in writing and have both parties sign off on the change.            

2. Material and equipment: Get a detailed list of all the materials, equipment, fixtures, and so on that are purchased. List the quantity, size, color, model, and brand for each item. This could be a long section, but these details will reduce the chance of confusion or error.         

3. Change orders: Changes are a part of nearly every remodeling/construction project — whether it’s a do-it-yourself project or one for the professionals. If you change your mind about a product, design, or anything else, get the change written down on paper. If the contractor runs into an unforeseen problem (not uncommon), get the necessary change/repair in writing. Make sure that the contractor is not charging for “unforeseen problems” that should have been included. Get them to explain why something changed and ask why they didn’t anticipate this if you think it’s something that they should have known or anticipated. Describe all changes in detail, including materials, anticipated new completion date of the project, and additional charges. Make sure both you and the contractor sign all change orders.        

4. Warranties: A reputable contractor will usually guarantee workmanship and materials for one year. Some materials and products will carry a longer manufacturer’s warranty; so hang onto the paperwork as documentation in the event of future problems.          

5. Arbitration clause: Even with a contract, disputes can arise. You can avoid having to go to court, however, if you include a binding arbitration clause. If you do find yourself needing arbitration, contact the American Arbitration Association (AAA), which is a non-profit organization that helps people organize arbitration. The AAA Web site has downloadable forms and links and information about regional offices and online filing.        

6. Avoid paying twice: A common and unfortunate problem when dealing with general contractors is that the money sometimes gets from the homeowner to the general contractor, but not to the subcontractors. When this happens, the subcontractors can put a mechanic’s lien against your property! Avoid this by including a clause stating that the final payment won’t be made until you receive a lien-release form from the general contractor, all subcontractors, and each supplier.

For most people, the stress of lost income and high medical bills compounds the trauma of their physical injury. One of the first things your attorney will do is communicate directly with the insurance company. The team assigned to your case will follow up on your medical treatment, advise how best to deal with your medical bills, deal with creditors, and when it’s time to settle your case, obtain and submit the necessary documentation to the insurance company to properly support your claim.

The interview

We will ask for general information about your case and use a questionnaire to make sure we get all the facts. At this meeting you will be required to sign a “Retainer and Fee Agreement” which will allow us to represent you. All of these forms will be explained to you.

You will be introduced to the team assigned to your case and be given contact information for them and others who can answer any questions you may have.

The paralegal assigned to your team will work with your attorney and everyone else on the team to prepare your case. Consequently, your paralegal will most likely be able to answer any questions you may have. But, if you wish personal contact with your attorney, please let us know that when you call or make an appointment.

Case preparation

Once you have hired us to represent you, do not discuss your injuries with anyone except your doctors and your legal team – not the insurance company, your employer, or anyone else.

Letters will be sent to all parties involved in your case, including insurance companies, indicating that you have retained us as your lawyers. Letters will also go out to all physicians, hospitals and anyone else necessary who can provide us with information to complete your file. This could include the IRS, your employer, schools, etc.

While you are healing, activity on your file will slow considerably and consist of updating your medical records as you continue treatment, verifying lost wages and investigating liability. The insurance company will be advised of your medical progress and the amount of your medical bills so that settlement funds can be reserved.

Evaluation

A case cannot be settled until you have reached a full recovery or the point at which you will not be able to recover further. This can take months or even years. Typically, the process will take a year. We must be able to evaluate your final condition before the actual value of your case can be determined.

Advise your paralegal immediately once you’ve finished your medical treatment so that we can proceed with the case. The collection of records and the preparation of your “settlement package” is very time consuming and can take as long as two or three months. This is important because the settlement offered by the insurance company is based on the documentation we can provide.

Negotiation

No settlement will ever be made without your consent.

It usually takes the insurance company several weeks to review the settlement package and to evaluate the damages. After they make an offer that your attorney feels is reasonable, we will contact you to discuss the offer and get your consent to accept it. This will be a very thorough discussion and all of your concerns will be addressed before we settle your claim.

If the insurance company does not make a reasonable offer, we will discuss whether or not to file a lawsuit.

Settlement

When a settlement is accepted, you sign a Release of Claim form and the insurance company sends us a check made payable to you and our firm, usually within 30 days. You must sign the check and the funds will be deposited in the firm’s Clients’ Fund Account.

While waiting for the check we will contact everyone who has been waiting for payment to negotiate a possible reduction of medical bills where possible and obtain the final balances. Again, this can take time. When the figures are in, settlement funds can be disbursed.

Filing Suit

If a settlement cannot be reached, the decision to file a lawsuit is made. We prepare each lawsuit as if it is going to trial even though a settlement could (and often does) take place at any time after the lawsuit is filed.

Discovery

Both sides have a right to obtain information needed to prepare their cases by use of a procedure called discovery. Depositions and interrogatories are the most common forms of discovery.

Depositions

A deposition is testimony given under oath in the presence of lawyers from both sides and is taken down by a court reporter. Before you give a deposition, you will be thoroughly prepared by your attorney and team.

Written interrogatories

This is simply a list of questions lawyers may submit to anyone involved in the case. Should a written interrogatory be requested of you, we will ask that you provide the answers by a certain date. We will review your answers, put them in the proper form, and return the statement for your signature. Then your answers will be sent to the defense lawyers.

Trial / Mediation / Arbitration

Most cases are settled before they get to the courtroom. If your case does go to trial, you will be thoroughly briefed on what to expect. We will be available at all times to answer your questions.

We will keep you informed

We will be in touch with you periodically to check on your medical progress and we encourage you to keep us advised of any changes in your condition. You can call your attorney, your paralegal, or contact them via email.

Confidentiality

All information provided to your attorney will remain confidential unless you agree that we may release it. Our entire staff is bound by the same standards. The defendant(s), their insurance companies, and the defense lawyers are entitled to some information by law. That information must be provided.

Conclusion

This is a general overview of what happens when we accept a case. Every case is unique and each step is tailored accordingly. We would be pleased to be of service to you and encourage you to contacts us.

Under M.G.L. c. 142A (also known as the Massachusetts Home Improvement Contractor Act), all home improvement agreements in excess of $1,000 must be in writing. In addition, there are certain provisions that must be included in the contract, including the following information:

Basic Information: this includes (a) the contractors full name, (b) social security number, (c) address and

1. registration number of the contractor; (d) names of any sales person who solicited or negotiated the contract, and (e) date the contract was executed by the parties; Date the work is scheduled to begin and the date when it is to be substantially completed;

2. Detailed description of work to be done and the materials to be used;

3. Contract price;

4. Time schedule of payments and the amount of each payment including finance charges;

5. Contract must be signed by the homeowner and contractor;

6. Disclosure of permit information.

7. The contract must also contain a “clear and conspicuous” notice of the following: (a) that all contractors or subcontractors must be registered by law; (b) that the homeowner has a three-day right of cancellation if it is not executed at the contractor’s place of business; (c) the registration numbers of the contractors and subcontractors; (d) all warranties and owners’ rights under the act; (e) a notice (in 10-point bold type or larger) that homeowners should not sign the contract if it contains any blank spaces; and (f) notice of any liens or security interest placed on the property as the result of the contract. In addition to the above requirements, contractors looking for added protection may choose to include additional provisions for mediation, arbitration and the payment of attorneys’ fees.

Disagreements over home improvement projects can cost time and money. Besides producing bad feelings, they can also lead to lawsuits or other legal action. A well-written contract prevents that.

Home improvement contractors should carefully review their contracts to make sure that they are in compliance with state law. In Massachusetts, the failure to prepare a contract that is in compliance with the law can result in double or treble damages, attorney’s fees and costs against the contractor. Don’t wait for a problem with a customer before reviewing your contracts. Contact the Law Office of Curran & Desharnais, P.C. today to arrange for a thorough review of your contracts and avoid any potentially unecessary penalties.