Archive for August, 2018

30
Aug

How to File for a Wrongful Death Claim in Indiana

August 30, 2018

Wrongful death cases are some of the hardest and most trying cases a person can go through in their lifetime. Losing a loved one is hard enough, but to know it could have been avoided or was due to the negligent actions of someone else can make it almost unbearable.

In addition to the feelings of loss, families also must undergo the difficult road that is a wrongful death claim. Each state has their own laws regarding wrongful death, so it’s important you know how your state stands before you begin your claim.

Wrongful Death in Indiana

After the wrongful death occurs, the family of the deceased must file a wrongful death claim with the state of IndianaHere in Indiana, we follow the Indiana Code 34-23-1. In this code, wrongful death is defined as: “the death of one is caused by the wrongful or omission of another.” This means that in Indiana, if a person dies due to a negligent act—whether they performed an act or failed to perform an act—the negligent party will be held responsible for the death.

This is similar to personal injury, but in a wrongful death case, the family of the deceased becomes the plaintiff. The family will have to work to prove that the negligence occurred and that it was a direct result of their loved one’s death.

A Civil Case

In Indiana, all wrongful death claims are seen as a civil case, which means the courts do not get involved and it is instead handled directly through the estate. If there is a criminal component, for example, the death occurred due to a drunk driver, a separate criminal case will be brought into it, and separate charges will be filed. If a family wishes to gain compensation for the negligence, they must still file a wrongful death case, in addition to any criminal case that may already be occurring.

Who Receives Compensation?

Once a wrongful death claim is complete, the Indiana courts will decide who will receive compensation, and in what amount. Most often, the spouse and children will be awarded for any damages recovered, but there are always expectations to this rule. If you are not a direct dependent of the deceased, but feel you deserve the right to some of the damages, it’s imperative to get an Indiana attorney on your side.

How to File

After the wrongful death occurs, the family of the deceased must file a wrongful death claim with the state of Indiana. Within this claim, the family must be able to prove negligence and that the death was, in fact, due to that negligence. Within the claim, the family or dependents of the deceased will also have to ask for damages and then have the claim filed directly by the estate (the spouse, children or dependents). The estate of the deceased person can claim funeral expenses, the costs of filing and pursuing the wrongful death claim, medical and hospital expense, and any lost wages the deceased would have earned if they had lived.

In Indiana specifically, the family can only be awarded up to $300,000 in damages and a family cannot claim any damages for pain and suffering.

At Stewart & Stewart, we work hard to ensure that you don’t have to worry about your claim and can focus on your grieving. For more information or to file a wrongful death claim, contact us at 1-800-33-33-LAW or visit our website for more information.

27
Aug

How Do You Prove Negligence in Indianapolis?

August 27, 2018

Picture this: you are driving carefully, or walking down the street, when you are suddenly hit or fall due to another driver not watching the road or a sidewalk that has not been fixed. You are hurt, upset, but mostly, you are frustrated because this could have been avoided if another person acted correctly or finished their job. This is called negligence.To prove negligence, it’s imperative that you have things such as a police report, pictures of the damage

Negligence is the first thing a victim must prove when filing a claim for damages, but it is also the most difficult. Unfortunately, negligence is never just assumed and you must work hard to prove to the court that negligence did, in fact, take place.

In Indiana, there are four things that go into proving negligence, including duty of care, breach of duty, causation and damages. Duty of care is your first step: you must establish that the person who caused your injury was supposed to be acting accordingly. This is usually the easiest step, as it is often implied, especially when it comes to a car accident. Breach of duty is the proof that the at-fault party failed to act as they were supposed to. This can be as simple as proving that they were driving under the influence, texting while driving or talking on the phone while on the job. Once that breach is proven, you must then show the courts how that breach directly impacted your injury or damages, and then, you must prove that those damages you received actually caused you financial pain.

Indiana also follows the comparative fault law, which states that if you had any part in the accident, you will be docked for your percentage of fault. For example, if a driver was texting and hit your car, they are mostly at fault, but if you were speeding, you can also be held partially at fault. The court will determine what percentage of the accident was your fault and dock your compensation by that percentage.

To prove negligence, it’s imperative that you have things such as a police report, pictures of the damage, evidence of the accident occurring, any witness statements and any medical bills that you accrued after the accident occurred. An experienced Indiana accident attorney will help you sort out all of these items and ensure that you not only receive compensation for your damages, but that you also get as close to 100 percent of the damages as you deserve.

If you were involved in an accident due to negligence, contact the attorneys at Stewart & Stewart. You can call  us at 1-800-33-33-LAW or visit our website for more information.

17
Aug

What Federal Laws Protect Workers from Wrongful Termination in Indiana?

August 17, 2018

Indiana is an at-will state, which means that employers can fire an employee at any time, for almost any reason. Because of this, employers often take advantage, firing employees for reasons that aren’t actually legal, such as discrimination.

While Indiana is at-will, there are still many laws in place to protect employees from being wrongfully terminated. Wrongful termination can mean a lot of different things: an employer breaks a contract regarding employment, an employee is fired due to discrimination, the firing took place after an employee refused to complete an illegal act or failed to come to work due to a government sanction, such as jury duty, and more.

If you are working in Indiana, it’s important to familiarize yourself with the laws put in place to protect Indiana workers.

Title 7

Title 7 is the federal law that protects employees from being discriminated against based on race, sex, religion or gender. This is one of the most important laws and is part of the Civil Rights Act of 1964. While sometimes hard to prove, those who feel they are being discriminated against should keep detailed notes and hire an attorney to help them prove the violation of Title 7.

ADA

You also have the ADA, which is the Americans with Disabilities Act enacted in 1990 and protects people who have a disability. This includes people who got hurt at work and have worker’s compensation or those who have an employer that doesn’t accommodate you when you have worker’s compensation, which is a direct violation of the ADA.

FMLA

The FMLA is the Family Medical Leave Act. It can be used once you’ve been working for a company that has 50 or more employees for at least a year. If you or a close family member has a medical event, you can take leave or intermittent leave if you have a disability. This protects workers from being discriminated against for the medical event and being fired after they return from leave.

Retaliation Law

Indiana has a retaliation law, which means you can’t retaliate against an employee for doing something lawful, like getting workers compensation or filing a claim with EEOC.

If you have been wrongfully discriminated against or fired for reasons you feel are against one of these laws, contact an experienced attorney at Stewart & Stewart. Give us a call at 1-800-33-33-LAW or visit our website for more information.

15
Aug

Understanding the Two Types of Social Security Disability

August 15, 2018

People don’t always understand that there are two types of social security disability: Social Security Disability (SSD) and Supplemental Security Income (SSI). SSD is the one you pay into when you’re working. You can only get it if you worked full time for enough quarters to earn that payment and pay into the system. It’s a higher monthly payment but it’s harder to get. It’s like an insurance program, you don’t get it unless you’re paying into it and when you stop paying into it, it expires.

If your SSD expires or you’ve never worked full time, or if you’re a stay at home mom or worked part time, SSI is the poverty-based benefit that you may be eligible for. SSI is less per month and you have to be below a certain poverty level to be eligible for it. If you own a house, have a spouse who worked or have retirement income, you wont be eligible.

How does someone go about claiming Social Security Disability?

If you want to claim SSD or SSI, you can go online to SSA.gov and fill out the application. It’s self-explanatory and has mainly questions about your personal life and medical situation. It’s easy, it’s online and all of the information that is needed is direct personal knowledge. Once the application is filed, it goes to the Social Security Administration and it starts the whole process.

If you are unaware of which type of social security you are eligible for, you can apply for both on the application and they will tell you which, if either, you can apply for. Once they figure out which one you are eligible for, then they go into determining if you have a disability that fits to actually receive it.

When would you need an attorney?

After you fill out the application, it puts you in a line. The difference between doing it on your own and having an attorney is that an attorney can update your medical records often. In the beginning, social security is ordering your records and initially, everyone usually gets denied. Once you are denied, you will appeal the decision and this is often when people will look to hire an attorney. If you can, it’s ideal to get an attorney before that first appeal because you have a short deadline and it’s hard to understand the appeal process. If you have an attorney, if and when you are denied, you have an attorney that knows how to file the appeal. Once you file that appeal, you will probably be denied again. After you appeal for a second time, you and your attorney will get access to the system and be able to upload medical records. Once you’ve been denied twice, you’re in line for a hearing. It can take one to two years after your attorney requests a hearing to actually get one, so during that time, your attorney will order and upload medical records so once you get to that hearing, you are prepared for it.

If you aren’t represented, your hearing is shorter, you don’t get as much consideration and you may not be able to update your medical records because it is expensive and time consuming. An attorney will handle your appeals and summarize your medical records for the judge, which is how you will win if your medical records show you meet certain requirements to be considered disabled. An attorney has no control over the scheduling or when things happen. They don’t make it faster, but they help make it better for you in that they are paying to update your records and making sure the judge knows what’s wrong with you so you don’t have to do that yourself. With an attorney by your side, you’re making a stronger case for yourself.

If you are dealing with social security disability and are considering getting an attorney, contact Stewart & Stewart. Give us a call at 1-800-33-33-LAW or visit our website for more information.

13
Aug

Do I Need an Attorney for My Workers Comp Claim?

August 13, 2018

Do I Need an Attorney for My Workers Compensation Claim?After you are injured at work, the first thing that’s probably going through your mind is that you are scared. You just got hurt, and you realize that because of your injury, your livelihood is going to take a hit. But even if the injury is severe, people are often most worried about losing their jobs. Maybe you have seen six other people that have been hurt at work and now all those people aren’t there anymore, so you get nervous about the consequences of hiring an attorney. You may be afraid that doing so will cause you to lose your job or be looked at as the complainer, but while these are valid fears, you need to watch out for yourself.

If you’ve suffered an injury and you think there’s going to be time that you’re going to miss from work and you think you’re going to have to be receiving some significant medical care, the earlier an attorney gets involved, the more they can protect your rights. Often, when employees try to play by the rules, and see an employer-approved doctor without the help of an attorney, they get released before they are ready. When this happens, employees are often left with pain and suffering that requires them to continue to miss work, and it’s often at this point that an attorney is considered. When an attorney is hired at this point, they will be working to undo what has already been done, which is a much harder task.

An attorney can’t control what doctors you go to or what treatment you get, but if a referral is made to a specialist or if a doctor has you on restrictions, then an attorney will make sure that the benefits are paid and the referrals are honored.

If you’ve been injured at work and are considering hiring an attorney to help you process a worker’s comp claim, contact Stewart & Stewart. Give us a call at 1-800-33-33-LAW or visit our website for more information.

4
Aug

3 Things Every Employee Should Know About Employment Law

August 04, 2018

Employment Law is the law concerning employers and their employees. Employment laws are different from state to state, but there are also federal laws that encompass the entire country. Many of these laws protect the employer, but the majority of them are put in place to protect the employee. If you are working in Indiana, or in the United States as a whole, it’s important to be aware of these three vital aspects of employment law.

At-Will

Not all states are at-will states, but for Indiana workers and states who are at-will, it’s one of the most important things to understand. Employers will often tell employees that since their state is at-will, they can fire you at any time for any reason. But, it’s important that people know that at-will does not mean they can discriminate against you or fire you because you are injured or part of a protective class. The problem is that is usually comes up when they know they’re doing things they aren’t supposed to and they want to convince the person they are allowed to do it. If you feel you are being terminated for your protective class, or any of the listed reasons, it’s important to hire an attorney right away.

Document Everything

Put all of your complaints in writing. If it’s not in writing, it essentially didn’t happen. So, be sure to put all verbal complaints in writing. Even if an employee is taking notes in their notebook or actively writing things down, that can be used as evidence, but it’s better if they’ve made reports and communicated with the employer because it shows that they gave the employer a chance to fix it. Most people think this is too aggressive and if they do this, they are going to get fired. The problem is, they are probably going to get fired either way so it’s best to have it in writing. Sometimes this also saves their position because the employer knows they have to follow the right steps.

Don’t Sign Anything

Oftentimes, when employers are firing someone, they trick people into signing documents. They say they won’t get their vacation days if they don’t sign, and people often sign because they are overwhelmed. But, it’s often a release or a document that says they can’t do anything like sue or get remedies. Don’t let them force you to sign anything, and understand that there is never a reason where you have to sign. If they let you take the document, take it to a lawyer, if they get hostile and refuse to let you leave or get aggressive, start recording on your phone and make it uncomfortable for them and they will let you leave. Don’t sign termination notices if you don’t agree with them. Never agree to terms you don’t understand and don’t believe them when they tell you to sign something just for your vacation because it’s usually not.

If you’ve been wrongfully terminated in Indiana, contact the experienced wrongful termination attorneys at Stewart & Stewart. Give us a call at 1-800-33-33-LAW or visit our website for more information.

3
Aug

What Can You Do If You Are Wrongfully Terminated in Indiana?

August 03, 2018

What Can You Do If You Are Wrongfully Terminated from my job?Indiana is an at-will state, which means that employers can fire someone for any reason. These reasons can simply be that they don’t like you, they no longer need your position, they don’t want to keep paying, or, no reason at all. But at-will does not mean that they can fire you out of discrimination. When an employer fires someone because of their protective class or activity, which includes sex, religion, pregnancy, workers’ compensation, the Family and Medical Leave Act (FMLA), the Environmental Protection Agency, or Medicare fraud, that is considered a wrongful termination.

An employer can’t terminate you because you’re one of those protected classes, but it doesn’t mean that just because someone may be female and doesn’t get along with their male boss that it has to do with their sex. There has to be comments or activity that happened leading up to the termination that indicate the termination has to do with them being part of that protected class. If there is no connection, the employer is right to terminate.

Document Everything

To prove that you were wrongfully terminated, you need a documented issue in regards to that protected class. There are cases where people are using derogatory words or are fired because they are pregnant, but sometimes it can be more subversive. Referring to someone of a certain race as “you people” is one example. It can be something that is not blatant at first, but if there is a pattern of behavior and that person is being treated differently form everyone else, that can show that it’s wrongful termination.

It’s better for an employee to start documenting before they get terminated. You can often feel the ground crumbling, you know when there is turmoil starting and you can feel when it’s coming your way. When this happens, begin writing things down. If you make a verbal complaint, there is no way to prove that once you are terminated. Instead, write it in an email or file a letter with HR. If they keep insisting on calling, send a follow up email recapping what was said on the call. This puts it on the employer and makes it so they can’t deny that you reported it and that these things are happening. If everything is verbal, it’s a he said she said situation, and that makes it very difficult.

File a Claim and Contact an Attorney

Once a wrongful termination happens, you should contact an attorney. You also have the option of going to the Equal Employment Opportunity Commission (EEOC) if there is a discrimination issue. You can file a charge there first, because you can’t file a claim without filing a complaint with the agency first.

After you file a complaint, the EEOC will investigate them. This can take six months to a year for the investigation to be complete. You may have an opportunity to resolve the case at the EEOC level, but oftentimes the case gets dismissed as “right to sue” and you have 90 days to decide if you want to file in federal court.

It’s usually wise to hire an attorney to handle the EEOC charge, as there are many different aspects of filing with them. One wrong piece of information or something that is left out can lead to your case being dismissed. If you fail to hire an attorney before you do the charge, you are able to hire one after the fact, and they will be able to go in and amend anything that was wrong.

If you’ve been wrongfully terminated in Indiana, contact the experienced wrongful termination attorneys at Stewart & Stewart. Give us a call at 1-800-33-33-LAW or visit our website for more information.

2
Aug

What is the Indiana Minimum Wage Law?

August 02, 2018

Minimum wage is a hot topic surrounding every profession around the country. Many have been lobbying for higher minimum wages, while others feel the increase is unnecessary at the present time. And while everyone is discussing the topic, it is actually up to each individual state to set the minimum wage laws for themselves.

In Indiana, the minimum wage is currently set to $7.25 per hour. This is complying with the current federal minimum wage law, which is also set at $7.25. All employers are required to abide by this law and failure to do so can lead to extensive penalties.

For jobs involving tips, like a waiter or valet driver, the minimum wage is $2.13. Federal law says that the amount they earn in tips must equal or exceed the regular federal minimum wage for them to be considered a tipped-only employee.

In addition to regular and tipped employees, there are also other laws underneath the minimum wage laws regarding trainees or internship level hires. An employee who is considered an apprentice, or someone who is working to learn from their employer, must be paid minimum wage unless their work is required to receive a certification or license. The same is true for disabled workers, unless they work in certain sectors of a nonprofit organization, and for learners. Medical students who have completed their full four years of medical school and are working as residents are exempt from this in Indiana. If an employee is training and under the age of 20, their minimum wage in Indiana is set to $4.25 an hour for their first 90 days.

In addition to these, there are a lot of laws, exemptions, and exceptions for certain employers and employees. If you feel you have been unfairly paid or that your employer is withholding your wages, it’s imperative that you contact a wage and hour attorney today. Stewart & Stewart are experts in wage and hour, specifically for Indiana residents, and are here to fight for your rights concerning the Indiana minimum wage, overtime work, and compensation. Give us a call at 1-800-33-33-LAW or visit our website for more information.

1
Aug

What Happens If You Get into an Accident with an Intoxicated Driver?

August 01, 2018

When you get into your car, no matter the time of day, you expect to arrive to your destination safe and accident free. You most likely take all the necessary precautions before you start to drive: you fasten your seatbelt, ensure your car is in good shape, and of course, abstain from any alcohol or drugs. But even though you keep safe on the roads, it doesn’t mean that everyone around you is following the same protocol. So what happens if you get into an accident with an intoxicated driver?

As soon as an accident occurs, the first thing you must do is make sure you, and all involved in the accident, are okay. If there are any serious injuries, make sure to go straight to an emergency room to care for your injuries. Once a police officer arrives at the scene, they will be able to access the situation and determine who is at fault. And while it may seem like a drunk driver should always take the blame, this is not always the case.

While that driver will face legal consequences as driving while under the influence is against the law, they may not be deemed at fault when it comes to the accident. To prove that the drunk driver was at fault, you still need to prove it, and a simple failed Breathalyzer is, unfortunately, not enough. You, or your insurance company, must prove all three facets of fault: duty of care, breach, and causation. The first two are easy to prove as duty of care refers to the fact that one party owed the other the duty of care to be responsible while driving on public roads, and a breach is the moment they failed to do so. A drunk driver is clearly breaching their duty of care. But the third element, causation, is where it gets a bit trickier. This is where you will have to prove that the breach of care was the exact reason for the crash.

Fortunately, most victims of a drunk driving accident are proven to be guilty of a crash, especially if the other accident victim was driving with caution and care.

To help avoid drunk drivers on the road, always stay alert and pay attention to the other cars on the road. Some tell-tale signs of drunk driving include:

  • A car that is weaving in and out of lanes
  • Swerving
  • Sudden or unnecessary braking
  • Speeding or driving too slowly
  • Avoiding traffic laws, such as passing through stop lights or stop signs
  • Driving in the center of two lanes, or off on the median
  • Turns are wider than needed

If you have been involved in an accident with a drunk driver, you will need an experienced attorney on your side. Stewart & Stewart has helped many accident victims get the compensation they need to pay for damages and injuries and are here to help you, too. Give us a call at 1-800-33-33-LAW or visit our website for more information.