Requests for Admissions

REQUESTS FOR ADMISSIONS

DOUGLAS B. CATTS, ESQUIRE

Recently the lawyers at Schmittinger & Rodriguez, P.A. settled a case against a well-known automobile insurance company where the insurance company refused to pay medical bills.  To receive compensation for medical bills, The Plaintiff must prove that the bills are related to the vehicular collision at issue and are reasonable and necessary.  The client had pre-existing injuries and the insurance company insisted that the bills were related to previous problems.  Medical providers usually may testify about these matters insofar as other health care providers are involved.  However, in this case a chiropractor could not testify about bills from medical doctors and the numerous medical doctors were not familiar with the different specialties in the case.

The law provides that parties may file Requests for Admissions.  Our client, the Plaintiff filed requests asking the Defendant to admit or deny that the medical bills were reasonable and necessary.  If the defense admits, there is no reason to take the depositions of multiple doctors at great expense.  If the Defendant denies, then the depositions would have to be taken, but the party filing the requests may also apply to the Court for fees and costs.  In response to the Requests for Admissions, the defense was evasive and Plaintiff’s counsel filed a Motion to Compel.  The Judge gave the Defendant insurance company a time certain to admit or deny that the medical bills were or were not reasonable and necessary.  The defense had to decide whether to admit that the bills were reasonable and necessary or deny and risk payment of fees and costs including expert witness costs.  The day before the response was due, the Defendant settled the case so that the medical bills were paid.

Requests for Admissions can cut through and eliminate expensive litigation and bring matters to a head.  That happened in this case.

If you have been involved in a motor vehicle collision and your insurance company is not paying your medical bills, contact Schmittinger & Rodriguez, P.A. at (302) 674-0140.

S&R Attorney Appointed as Judge of Superior Court

Schmittinger & Rodriguez is proud to have one of our attorneys selected by Governor Carney to become a Judge on the Delaware Superior Court in Kent County.  Noel Primos, Esquire, practiced law with Schmittinger & Rodriguez from 1993 until June 1, 2017, handling civil litigation including primarily employment matters, municipal law and education law.  Mr. Primos follows a number of Schmittinger & Rodriguez attorneys who have gone on to judicial posts, including most recently The Honorable Jeffrey J. Clark, who left Schmittinger & Rodriguez in 2015 to become a Judge in the Superior Court, as well as The Honorable James T. Vaughn, Jr., (previously a Kent County Superior Court judge and presently a Justice of the Delaware Supreme Court) and The Honorable Mardi Pyott of the Kent County Family Court.

Following his confirmation by the Delaware Senate, Mr. Primos assumed the bench upon his investiture on June 1, 2017.  The attorneys and staff of Schmittinger & Rodriguez join with Noel’s family and others in congratulating him on his nomination and confirmation.

Grandparent and Third party visitation rights in Delaware

A grandparent’s right to visit with a grandchild differs from state to state.  In Delaware, grandparent visitation is covered under the third party visitation statutes contained in Title 13, Chapter 24 of the Delaware Code.  Delaware’s third party visitation statutes allow for any adult person to petition for third party visitation as long as that person can show a substantial and positive prior relationship with the child.  Family members in addition to grandparents (such as aunts, uncles, or adult siblings) can also petition for visitation under the third-party visitation statutes.

It should be noted that a grandparent or third party’s rights regarding a child are subordinate to a parent’s fundamental right to the care, custody, and control of the child.  The United States Supreme Court has opined that as long as a parent is fit, that parent has a fundamental right to parent and raise the child, and it is fully within the parent’s right to decide if visitation with a grandparent or third party is in the child’s best interest.  This does not mean that hope is lost for a grandparent seeking visitation; rather, the Court gives special weight to a parent’s objection to visitation. The special weight requires petitioning third parties to prove additional factors to obtain visitation with a child.

Before the Court can award third party visitation, the Court needs to find that visitation with the third party is in the child’s best interest.  To make that determination the Court looks to the best interest factors contained in the Delaware Code.  In addition to visitation being in the child’s best interest, the Court needs to find one of the following for each parent: (1) the parent consents to the third-party visitation; (2) the child is dependant, neglected, or abused in the parent’s care; (3) the parent is deceased; or (4) the parent objects to the visitation, but the adult seeking visitation has shown that the objection is unreasonable and that visitation will not substantially interfere with the parent/child relationship.

Many different events, such as divorce, a parent’s death, or termination of a parent’s rights can drastically alter family dynamics affecting the time a child spends with extended family members.  A child should be able to enjoy time with the people who would positively impact that child’s life.  To discuss third party visitation in more detail, or if you have any other family law related issue, please call Schmittinger and Rodriguez at (302) 674-0140 to schedule a consultation.

 

Custody Proceedings in Delaware

Divorce can be a trying, stressful undertaking and when children are involved it only becomes more complicated. Custody disputes cause parents to question the uncertainty of their child’s future. Where will our child live? Will my ex and I be able to work together in raising our child?  How does the Court know what is truly best for our child?  If you find yourself asking some of these questions while in the midst of a changing family dynamic, there are a few things you should know.

There are two main concerns when custody is being determined: who will make the important decisions for the child, and where will the child live.  The important decisions primarily relate to the educational, religious, and medical aspects of the child’s life.  This is what the Delaware law considers “Custody.”  Custody is either joint (where the parents communicate and work together to make the important decisions in their child’s life) or sole (where only one parent in charged with the responsibility of making the important decisions in the child’s life.)  If sole custody is determined to be best for your child, that does not mean the other parent is left on an island.  Each parent has the right to receive information regarding the child’s progress in school, medical treatment, and significant developments in the child’s life.

The other concern is where the child will live, or “Placement” of the child.  Will one parent have primary placement of the child, or is a shared placement arrangement more suitable?  If primary placement with one parent is determined to be best, then the non-residential parent is typically entitled to visitation with the child.  The best outcome here is for the parents to come to a visitation agreement that fits their circumstances and the child’s life. If the parents cannot agree, Family Court may order visitation with the goal of encouraging frequent, meaningful contact between both parents and the child.  Family Court uses standard contact guidelines that strive to accomplish that goal.

In order to make the custody and placement determinations, Family Court considers the factors contained in Title 13, Section 722 of the Delaware code.  These factors are more commonly known as the “best interest factors.”  The best interest factors explore the relationships the child has with his/her family; how the child is performing in school; the child’s involvement in the community; the conditions of the child’s living arrangements; and a myriad of other details that provide the Court insight into your family life.  The factors are then weighed by the Court to determine joint or sole custody, and if primary or shared placement is best for your child.

Quality legal representation helps to ensure a result that will work best for you and your child.  To discuss the factors the Court considers in custody disputes or if you have any other Family Law related questions, please call Schmittinger & Rodriguez at (302) 674-0140 to schedule a consultation.

Do I need an attorney?

By Gary E Junge

Most people do not intentionally break the law. Many people get caught in that gray area between right and wrong. You may drive after having a few drinks, you may touch or bump someone in a moment of anger, or you may take someone else’s property. Depending on the facts, each of these actions may or may not be illegal. If you are arrested, the State suspects you committed a crime. But, they still must prove that you committed the crime. If you’ve been charged with a crime, an attorney can navigate these gray areas.

In addition, an attorney can make sure the arrest was legal. Just as you must follow the law, so must the State follow the law. Our forefathers found that random stops, unreasonable search and seizures, unauthorized detention, and many other state actions violated our natural rights. The United States Constitution and the Delaware Constitution protect these rights. Just as the State will punish you for breaking the law, the courts will punish the State for violating your rights. This punishment usually takes the form of suppressing evidence or possibly even dismissing your case.

Take, for instance, a situation where you drive after having a few drinks. You believe you are within the legal limit, but are pulled over by a police officer and arrested for driving under the influence. At trial, the State must prove you were driving under the influence. Generally, the State must prove that the police officer had reasonable suspicion to stop you, probable cause to arrest you, and that proper procedures were followed when field sobriety tests were administered. Whether the police officer had reasonable suspicion to pull you over or probable cause to arrest you may be challenged. Improperly performed tests may lead to inaccurate results and therefore may not be admissible. Remember, the State is represented by an attorney who understands the nuances of the law. You can also be represented by an attorney who understands the nuances of the law.

In another instance, you get into an argument with someone and grab their shoulder or bump them. You may be arrested for offensive touching. Yet, you may not have intended to alarm the person. You may have been trying to emphasis a  point, or you may have intended to just walk away. You may be convinced you are guilty just  because you  did touch  them, but you may not be guilty. There are numerous elements to the charge, and the State must prove each one. Once again, the State will be represented by an attorney. Remember, you too can be represented by an attorney.

The same concept applies to theft. Did you intend to keep the property? Did you have permission from someone you assumed was the owner of the property? What was the property actually worth? The value of stolen goods determines whether you will be charged with a misdemeanor or a felony. Being convicted of a felony instead of a misdemeanor not only results in a higher fine or longer prison sentence, but also impacts other areas of your life such as your right to carry a weapon and even your right to vote. Again, the State will be represented by an attorney. Remember, you can be represented by an attorney also.

The law is constantly changing. When asking whether you need an attorney, remember this: The State has an attorney. A criminal defense attorney understands the law. While no attorney can guarantee the outcome of your case, he will fight for you. He will fight to ensure your constitutional rights have not been violated, he will force the State prove each element of the crime, and fight to make sure you are not convicted of a higher-level crime.

Being accused of a crime can be a scary and confusing proposition. There is no need to face the court system alone. If you’ve been accused of a crime, contact Schmittinger & Rodriguez for a consultation.

Underinsured Motorist

Your right to Underinsured Motorist (UIM) benefits changed just last year, on January 3, 2014, following the amendment of 18 Del. C. § 3902(b)(2). The purpose of UIM coverage is to allow an insured to establish a fund to protect against losses caused by underinsured motorists. This is done by contracting supplemental insurance coverage from your automobile insurer. In a nutshell, UIM coverage provides additional insurance coverage when the tortfeasor’s bodily injury liability coverage fails to offer enough compensation for the injuries and damages sustained in a motor vehicle accident. (A tortfeasor is an individual who commits a tort, and in this context, is the individual who caused the motor vehicle accident).

While the purpose of the UIM coverage has remained the same, it is now easier to access this coverage. Prior to the statutory amendment, your right to UIM benefits was potentially limited and depended upon the amount of coverage under your own policy in comparison to the amount of coverage available through the tortfeasor’s policy. This comparison is no longer necessary. Now, so long as you have properly elected for UIM benefits, you are entitled to this coverage, regardless of the coverage available through the tortfeasor’s policy.

This amendment serves to benefit Delaware insureds and should be taken advantage of, as most, if not all, policies now in existence have been issued and/or amended following January 3, 2014.

If you have been involved in a motor vehicle accident and question whether you may be entitled to such coverage, please contact Schmittinger & Rodriguez at (302) 674-0140.

Delaware Landlord Tenant Code

Are you a residential landlord or tenant, or have considered becoming a landlord or tenant? If so, you should familiarize yourself with Title 25 of the Delaware Code as it governs the obligations of a landlord and a tenant. Title 25 is incredibly detailed and may certainly leave you confused, particularly if you find yourself in conflict with your landlord or tenant.

Conflict often arises in the landlord/tenant scenario, and the reasons for such conflict vary. One common area of conflict arises when a tenant is late in paying his rent. However, the idea of a landlord marching down to the courthouse the moment the tenant’s rent is late is a farce. Eviction, otherwise known as summary possession, can certainly be done; however, specific guidelines must be followed under the Code to perfect such eviction. In fact, a tenant must be given specific written notice under the statute before summary possession may be properly sought.

In addition to late rental payments, the Landlord Tenant Code also addresses when a landlord is entitled to a late fee, a landlord’s obligation in producing the Landlord Tenant Code, the time period in which a security deposit must be returned, what a pet deposit may be used for, how much pet deposit is permitted, whether attorney fees are recoverable, and so on.

In addition to the Code, you should also be familiar with the terms of your rental agreement, as your rental agreement likely provides for additional duties and rights beyond the Code, such as whether a landlord is entitled to late fees.

There are many pitfalls and nuances associated with serving as a landlord and/or tenant. If you are a landlord or a tenant, or want additional information on what your obligations and/or rights might be, please call Schmittinger & Rodriguez at (302) 674-0140.

The United States Court of Appeals Decision

By William W. Pepper Sr.

The United States Court of Appeals for the Third Circuit recently upheld a lower federal court decision dismissing discrimination claims against the City of Dover in connection with the 2010 reassessment of real estate. The Court held that the Tax Injunction Act precluded federal courts from hearing the claims when Delaware state courts could have provided a remedy for any alleged discrimination.

The Third Circuit is one of thirteen courts of appeal in the United States federal judicial system. It is one step below the Supreme Court of the United States. The Third Circuit hears appeals from the lower federal courts sitting in Delaware, New Jersey, Pennsylvania and the U.S. Virgin Islands.

William W. Pepper Sr. represented the City of Dover in the litigation. He joined Schmittinger and Rodriguez in August 1985 and has served as deputy solicitor for the City of Dover since May 1989.