COHABITATING – SENIORS SHOULD PLAN FOR THE FUTURE

Michigan and most states prohibit common law marriages, there are a fair amount of unmarried seniors living together who can take steps to protect the rights of their partners.

If you have no spouse, your partner has no legal rights to your estate if you die without a Will or Trust that provides for them. It is not uncommon for those that have children from a prior marriage or relationship to provide the unmarried partner with certain assets or a certain portion of the estate or even the right to live in a property for a period of time (life estate) with the rest passing to the children.

If you want your partner to be able to act for you in financial matters if you become incapacitated, this should be not only addressed in the Trust but also in a financial Durable Power of Attorney. The same is true as it relates to health care decisions if you are unable to make your own decisions. The advantage of being unmarried is long term care costs come into play for your partner, none of your own assets are considered available. The down side of that is that while a spouse can receive a certain portion of a Medicaid applicants assets and income, where an unmarried partner has no such rights. What’s more, transfer of assets between you and your partner can make the transfer ineligible for Medicaid if the transfer is done within five years prior to application. Creating joint assets can cause other unintended tax complications.

To learn more please email Steve Malach at Smalach@lipsonneilson.com

Dax Watson Appointed to the Board of Directors for the Valley of the Sun Community Leadership Board

The Valley of the Sun Community Leadership Board (CLB) is the face of the American Diabetes Association (ADA) in Phoenix, Arizona. The CLB shoulders the important responsibility of implementing the ADA’s mission and movement to Stop Diabetes. Working in alignment with the ADA’s Strategic Plan, the CLB works as a team to lead key fundraising, program, advocacy, volunteer and corporate recruitment activities.

Lipson Neilson Attorneys Selected to Chair Oakland County Bar Association Committees

The firm is proud to announce that two of the firm’s attorneys have been selected to Chair committees for the Oakland County Bar Association (OCBA) during the 2015-2016 term that began September 1, 2015:

Both of these committees generally meet monthly between September and May to address issues of interest and importance impacting the respective committee’s area of practice.

This year marks the 30th anniversary of the Lipson Neilson law firm that has grown from three founding members to thirty attorneys located in three states. Since its formation the firm has also expanded its practice areas from business, tax and litigation to a full range of practice areas which now also include international law, real estate, professional liability, probate litigation, family law and estate planning. Lipson Neilson attorneys represent and provide counsel to clients throughout the country and around the world. To learn more about the firm, please visit www.LipsonNeilson.com.

Thomas Ludden and Karen Smyth Win Landmark Case in Michigan Supreme Court

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Karen Smyth

C. Thomas Ludden

C. Thomas Ludden

On July 22, 2015, the Michigan Supreme Court reversed the Court of Appeals and reinstated the decision by the Oakland Circuit Court to grant summary disposition in favor of Lipson Neilson’s client in the case Tyra v Organ Procurement Agency of Michigan (Docket No. 148079). This medical malpractice case decision will affect how medical malpractice cases are handled in Michigan.

Lipson Neilson attorneys Thomas Ludden and Karen Smyth successfully argued, on behalf of the Defendants-Appellants in Tyra, that the Michigan Supreme Court should find that the failure of a plaintiff to abide by the statutorily mandated waiting period prevents them from commencing a medical malpractice lawsuit. As a result, the Supreme Court held that all of the claims by the plaintiff are barred by the statute of limitations.

To learn more, please contact Thomas Ludden at phone 248-593-5000, or email at tludden@lipsonneilson.com.

Jessica Green on Panel of Experts Discussing “Errors & Omissions Claims Trends” at ExecuSummit

Jessica Green web resJessica Green was featured on a panel of industry experts discussing “Errors & Omissions Claims Trends” at the ninth annual Errors & Omissions (E&O) Insurance ExecuSummit held in Uncasville, CT during June, 2015. This conference brings together legal and insurance industry professionals from across the country to discuss emerging issues in this very specialized area of insurance, and law.

Jessica has defended many lawyers and law firms throughout the country during her career and is recognized as an emerging leader in Errors and Omissions (E&O), Employment, and Insurance Coverage law. For the second year in a row, Thompson Reuters, the global leader in legal publications, has recognized Ms. Green as a 2015 Rising Star in her field. She is a national liaison for the Defense Research Institute Lawyers’ Professionalism and Ethics Committee. To learn more please call Jessica at 702-382-1500 or email to jgreen@lipsonneilson.com

Joe Garin Named to Nevada’s 2015 Legal Elite List

Joseph Garin high resFor the second year in a row, Joe Garin has been named one of Nevada’s Legal Elite. This list of Nevada’s top attorneys, as chosen by their peers, is published by Nevada Business Magazine and includes only the top 300 attorneys out of the 8,680 active members of the Nevada State Bar Association. Joe is the Managing Partner of the firm’s Las Vegas office.

In addition to being one of Nevada’s Legal Elite, Joe is recognized as a national leader in Professional Liability Law, and Insurance Litigation & Litigation Management. He has defended more than 400 lawyers and law firms in Nevada, Colorado, Michigan and Illinois during his career. He is a featured speaker at continuing education conferences in Nevada and across the USA, and he annually teaches a continuing legal education seminar, State of the Law – Legal Malpractice, in cooperation with various local bar associations.

Nevada Supreme Court has modified the privity requirement established in Five Star Capital Corp. v. Rudy, to incorporate the principles of nonmutual claim preclusion.

Weddell vs. Sharp, et al., 131 Nev. Adv. Op. 28 (May 28, 2015)
By Joseph P. Garin, Lipson Neilson Cole Seltzer & Garin, P.C., Las Vegas, NV Joseph Garin high res

Business partners, Appellant Rolland Weddell and nonparty Michael Stewart, submitted their commercial dispute to a panel of three attorney mediators, including Defendant attorney Sharp. Following a decision in his favor, Stewart filed lawsuit against Weddell for declaratory judgment. Weddell later confessed a judgment, acknowledged that mediators’ decision was valid and enforceable against him in its entirety, and stipulated to dismiss his counterclaim.

More than two years later, Appellant filed suit against the attorney mediators, alleging collusion with Stewart in the dispute resolution process. The district court granted respondents’ motion to dismiss on ground of claim preclusion, finding the three factors under Five Star Capital Corp. v. Ruby,1 had been satisfied: “(1) the parties or their privies are the same, (2) the final judgment is valid, and (3) the subsequent action is based on the same claim or any part of them that were or could have been brought in the first case.”

On appeal, the Nevada Supreme Court found there was erroneous finding of privity between respondents and Stewart, as their relationship did not fall within Five Star’s definition of privity and the “adequate representation” analysis. The Court concluded that Five Star‘s test was not satisfied. However, the Court that Five Star‘s test for claim preclusion does not fully cover the important principles of finality and judicial economy that it intended to capture.

The Court considered the concept of “nonmutual” claim preclusion whereby a plaintiff’s second suit against a new party should be precluded “if the new party can show good reasons why he should have been joined in the first action and the [plaintiff] cannot show any good reasons to justify a second chance”.2 Here, Appellant failed to provide a “good reason” for not having joined the attorney mediators earlier and the Court affirmed the district court’s dismissal on the basis of claim preclusion.

The Court’s decision promotes finality of litigation and judicial economy. Under Weddell, a defendant may validly use claim preclusion as a defense by demonstrating that (1) there has been a valid, final judgment in a previous action; (2) the subsequent action is based on the same claims or any part of them that were or could have been brought in the first action; and (3) privity exists between the new defendant and the previous defendant or the defendant can demonstrate that he or she should have been included as a defendant in the earlier suit and the plaintiff fails to provide a “good reason” for failing to include the new defendant in the previous action.

Practice Note: Defendants may now use non-mutual claim preclusion as a defense to a complaint even if he was not a party or in privity with a defendant in an earlier action brought by plaintiff based on the same type of claims.

1 24 Nev. 1048, 194 P.3d 709 (2008)

2 8A Charles Alan Wright, et al., Federal Practice and Procedure §4464.1 (2nd ed.2002); Airframe Systems, Inc. v. Raytheon Co., 601 F.3d 9 (1st Cir. 2010)

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Sandra D. Glazier has co-authored a paper on Undue Influence

Sandra D. Glazier, a partner at Lipson/Neilson, Sandra_Glazier_001_full_crop hi resolution photo 2-3-15 (BH548194xAF0CA), entitled What Every Estate Planner Should Know about Undue Influence: Recognizing It, Insulating/Planning Against It … and Litigating It.  Sandra co-presented the paper in NYC to Bloomberg’s BNA Estate and Gift Tax Advisory Board on March 19, 2015 and at the ABA’s 2015 Estate Planning and Real Property Spring Symposia in Washington, D.C. on April 30, 2015.  In March and April 2015 Sandra was also a panelist on two separate webinars produced for Michigan’s Institute for Continuing Legal Education which focused on Undue Influence; one related to litigating issues related to undue influence with the second focused on estate planning considerations.  BBNA recently published the paper “What Every Estate Planner Should Know about Undue Influence: Recognizing It, Insulating/Planning Against It … and Litigating It” as a Tax Management Memorandum, at Bloomberg BNA, Vol. 56, No. 11, June 1, 2015,  at pp. 185-209.

Michigan Supreme Court Hears Oral Arguments on Two Medical Malpractice Cases That May Impact All Cases Filed in Michigan Courts

_DSC9496-8_0x10_0-03A-Q01C. Thomas LuddenOn May 5, 2015, the Michigan Supreme Court held oral argument in Tyra v Organ Procurement Agency of Michigan (Docket Nos. 148079 & 148087) and Furr v McLeod (Docket No, 149344), two medical malpractice case whose resolution will affect how medical malpractice cases are handled in Michigan and could affect how attorneys in all civil cases and probate court litigation raise claims and defenses.

Attorneys C. Thomas Ludden and Karen Smyth, of the Lipson, Neilson, Cole, Seltzer and Garin, P.C. law firm, appeared on behalf of one of the Defendant-Appellants in Tyra, to argue that the Michigan Supreme Court should find that the failure of a plaintiff to abide by the statutorily mandated waiting period prevents them from commencing a medical malpractice lawsuit. As a result, the Supreme Court should find that all of the claims in Tyra are now barred by the statute of limitations.

Additionally, Tyra raises the question of how factually specific affirmative defenses and other pleadings must be under the Michigan Court Rules and what the proper court remedy should if a party does not believe that a party has filed factually sufficient pleadings. This ruling could govern how factually specific the complaint and other pleading must be.

A decision in this matter is expected by July 31, 2015, when the current Michigan Supreme Court term ends.

Karen Smyth Invited to Discuss Ethics in a Wireless World at Professional Liability Law Conference in June

Karen Smyth_DSC9496-8_0x10_0-03A-Q01, a Partner at Lipson, Neilson, Cole, Seltzer & Garin, P.C. will be featured on a panel of leading industry professionals discussing “Ethics in a Wireless World” at the National Claims & Litigation Management (CLM) Professional Liability Conference in Chicago during June 4-5. The other panelists are Haralyn Isaac – Vice President Claims for the Great American Insurance Group, Kim Noble – Senior Vice President and lead underwriter for the Lawyers’ Professional Liability product at Argo Pro, and Regan Miller – Associate Director for Wortham Insurance.

This panel will focus on technology and risk management for law firms, including external threats, internal threats, danger of BYOD (bring your own device), unintended data disclosure and implications for professional liability. Emphasis will be put on how lawyers, insureds, claim professionals and risk managers can successfully navigate our ever-evolving wireless world and ensure they are not breaking ethical and professional obligations.

Karen Smyth is the President of the Michigan CLM Chapter. Karen has considerable experience in the defense of professional liability cases, including legal malpractice, medical malpractice, and employment practices litigation. She is a licensed attorney in Michigan and New York, and a graduate of the Litigation Management Institute. She has co-authored on the topic of the statute of limitations and legal malpractice claims, and she has been invited to speak to Oakland University’s William Beaumont Hospital Graduate School of Nurse Anesthetists on the topic of Medical Malpractice.