A Partnership Agreement Can Help Prevent Partnership Disputes

In an earlier post I described some of the basics rights and responsibilities for members of a business partnership under Iowa’s partnership law, Iowa Code Chapter 486A.  But avoiding partnership disputes is more important than knowing your rights as a business partner under Iowa law.  A common method of eliminating or reducing partnership disputes is the existence of a partnership agreement among the partners.

Per Iowa Code 486A.103, partnership agreements usually govern the relations between partners and between partners and the partnership.  Iowa Code 486A.103 does provide a few exceptions to business partners’ freedom to enter into a partnership agreement, some of which I summarized in my earlier post.  But in general partners can set up their partnership in whatever manner they see fit.

A partnership can prevent many legal problems and partnership disputes.  The partnership agreement should include the terms and conditions of the partnership.  Some of the standard topics for partnership agreement include:

1. The business’s name.
2. The business partnership’s milestones and goals.
3. Each partner’s percentage of ownership.
4. The manner in which profits will be divided.
5. How important partnership decisions will be made.
6. The procedures for a handling a partner’s withdrawal or death or the introduction of new partners.

The best practice is to set up the partnership equally.  That means each partner has an equal ownership interest in the business and shares equally in the profits.  Many partnership disputes arise when one or some of the partners believe that they’re being treated unfairly or unequally.  Treating all partners the same in all respects from the beginning (to the extent possible) can help reduce the risk of bad feelings expanding into a full-blown partnership dispute.

Loss Of Consortium Claims Involving Children And Personal Injury Or Wrongful Death

Earlier I wrote about spousal loss of consortium claims.  But loss of consortium claims involving children can also arise from personal injury or wrongful death, defective product, car accident, motorcycle accident, or dog bite claims.  There are two types of consortium claims involving children — Those in which a parent sues for injury or death to a child and those in which a child sues for injury or death to a parent.

A child’s claim for damages caused by a parent’s injury or death is known as “loss of parental consortium.”  Loss of parental consortium represents the loss of the services that the injured or dead parent would have provided to the parent’s children.  Loss of parental consortium also  can compensate for the loss of the injured or deceased parent’s company, affection, and cooperation and the assistance of the injured parent.  In Iowa, adult children can also recover for the loss of parental consortium.

Another claim available to children that arises only for the death of a parent is “loss of parental support.”   A child may recover the value of the amount of financial support that the deceased parent would have contributed had the parent lived.  Damages for loss of support are generally limited in time to when the child reaches age eighteen, although there are a few exceptions to that rule that rarely come into play.

The factors used in determining the value of loss of parental consortium and loss of parental support are the same as those for spousal consortium and spousal support claims.  I identified those in my earlier post.

Iowa law also provides parents claims for injury to a minor child and death of a minor or adult child.   A parent may recover damages for the expense and actual loss of services, companionship, and society resulting from injury to or death of a minor child.  A parent may also recover for the expense and actual loss of services, companionship, and society resulting from the death of an adult child.  Note the key distinction between minor children and adult children under this law — Once a child is considered an adult under Iowa law, a parent may only sue for loss of consortium and other damages if the adult child dies.  Parents usually do not have any legal rights stemming from an adult child’s injury, no matter how bad that injury might be.

Partnership Liability Under Iowa Law

Business disputes sometimes arise among the members of a partnership or between one partner and the partnership itself.  The members of a partnership frequently execute a partnership agreement that governs the partners’ relationship.  The partners are generally free to structure their partnership however they wish.  But Iowa Code 486A.103 restricts to some extent the ability of partners to modify Iowa’s standard rules concerning partner access to information and the duties that partners owe to each other and to their partnerships.

Iowa Code 486A.403 provides Iowa’s rules governing partners’ access to partnership information.  A partnership must keep its books and records at its main business office.  Partners (including former partners) and their agents and attorneys are allowed access to partnership books and records.  The right of access provides the opportunity to inspect and copy books and records during ordinary business hours.  Among the documents that may be inspected or copied are any information concerning the partnership’s business and affairs reasonably required for the proper exercise of the partner’s rights and duties under the partnership agreement or Iowa’s partnership law, Iowa Code Chapter 486A, and any other information concerning the partnership’s business and affairs, except to the extent the demand or the information demanded is unreasonable or otherwise improper under the circumstances.  A partnership may impose a reasonable charge, covering the costs of labor and material, for copies of documents furnished. 

Iowa Code 486A.404 sets the general standards for partner conduct towards the partnership and other partners.  Partners owe duties of loyalty and care.  Partners can be sued for breaching either type of duty owed the partnership or other partners.

The duty of loyalty requires partners to account to the partnership and hold as trustee for the partnership any property, profit, or benefit derived by the partner in the conduct and winding up of the partnership business or derived from a use by the partner of partnership property, including the appropriation of a partnership opportunity.  Loyalty also means that partners must refrain from dealing with the partnership in the conduct or winding up of the partnership business as or on behalf of a party having an interest adverse to the partnership andfrom competing with the partnership in the conduct of the partnership business before the dissolution of the partnership.

Proving breach of a partner’s duty of care requires more than establishing mere negligence.  That’s because a partner’s duty of care to the partnership and the other partners in the conduct and winding up of the partnership business is limited to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law.  Somewhat related, under Iowa partnership law partners must discharge their duties to the partnership and the other partners under Iowa Code Chapter 486A or under the partnership agreement and exercise any rights consistently with the obligation of good faith and fair dealing.

 

Remedies For Injury To Or Wrongful Death Of A Spouse Under Iowa Law

Under Iowa law, when one spouse suffers personal injuries or wrongful death, for example in a dog attack, motor vehicle accident, motorcycle accident, by a defective product, or as a result of police misconduct, the uninjured or surviving spouse has the right to sue for “loss of consortium.”  Spousal consortium is the fellowship of a husband and wife and the right of each one to the benefit of company, cooperation, affection, services, useful, industry, attention, and aid of the other.  Those types of damages are often placed in the categories of “loss of services” and “loss of marital benefits.”  If a spouse dies, the surviving spouse may recover  the value of the amount of financial support that the deceased spouse would have contributed had the spouse lived.

To decide the value of a deceased spouse’s services that would have been provided to the surviving spouse, courts evaluate  the circumstances of the deceased’s life; the deceased’s age at the time of death; the deceased’s health, strength, character, and life expectancy; the deceased’s capacities, abilities, and efficiencies in performing spousal duties; the deceased’s skills and abilities in providing instruction, guidance, advice, and assistance to the surviving spouse; the surviving spouse’s needs; and all other facts and circumstances bearing on the value of the deceased spouse’s services.

In determining how much support a deceased spouse would have contributed to the other spouse, courts consider the deceased spouse’s  age at the time of death; health, strength, character, skills, and training; life expectancy of the deceased and the surviving spouse; previous employment and earnings; expectancy for earnings in the future; the age of the surviving spouse; the present and future need for support; the amount of money out of the deceased’s income that would have been available for support after payment of federal and state taxes; and all other facts and circumstances bearing on the value of financial support.

Police Use Of Deadly Force And Federal Civil Rights Law — When Have The Police Gone Too Far?

There recently has been an extensive amount of media coverage and opinions about the deadly shooting of a teenager by the Ames Police Department after a vehicle pursuit.  Some support the officer’s actions, others criticize him for various reasons.  I’m not offering opinions on whether the officer’s actions were justified.  Instead, I wanted to review the legal standards under federal civil rights laws that govern law enforcement use of deadly force.  These are the general rules that are used when law enforcement agencies are sued for personal injuries or wrongful death stemming from the use of deadly force.

Well, maybe one opinion first.  Commentators who criticize the officer’s actions frequently assert that the teenage suspect was unarmed.  That’s wrong.  The teenager was armed with a truck.  He had used that truck as a battering ram/weapon during the police pursuit that ended with his shooting death by police.  Now, whether or not he was trying to again use the truck as a weapon at the time the officer shot him is a subject for fair debate.  But let’s stop pretending that the suspect wasn’t armed.  I once had a police tactics/use of force expert point out in court that any of the tools, implements, and other objects found in a garage can be used as a weapon, including a can of beer.  So the concept of an “armed” suspect extends well beyond guns and knives and easily includes motor vehicles.

Moving on to the general law concerning deadly force, apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.  The Fourth Amendment prohibits officers from using deadly force to make an arrest unless the individual poses a threat of serious physical harm.  When the suspect poses no immediate threat to the officer and no threat to others, deadly force is not justified.   Notwithstanding probable cause to seize or arrest a suspect, an officer may not always do so by killing the person.

All claims that law enforcement officers have used excessive force, whether deadly or not, in the course of an arrest, investigatory stop, or other seizure are analyzed under the Fourth Amendment’s objective reasonableness standard.  The key question is whether officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.  Officers’ underlying intent or motivation in using force is not a factor in the objective reasonableness inquiry. 

The reasonableness of an officer’s use of force, including deadly force, is evaluated by looking at the totality of the circumstances.  Relevant circumstances include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade by flight.  If the suspect threatens the officer with a weapon or there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, when feasible, some warning has been given.

“Regarded As” Or “Perceived Disability” Claims Under The Americans With Disabilities Act

Throughout the last decade, Congress became increasingly concerned that federal courts were making it nearly impossible to sue for disability discrimination.  Basically, under the federal courts’ strict reading of the ADA almost no one was considered “disabled” and thus protected by the ADA.  Federal courts were consistently dismissing disability discrimination claims before trial based on plaintiffs’ failure to prove that they were “disabled.”

The concerns regarding the courts’ increasingly narrow definition of “disabled” led Congress to pass the Americans With Disabilities Act Amendments Act (“ADAAA”) in 2008.  The ADAAA went into effect on January 1, 2009.  It governs all disability/employment situations that have arisen since that date.  Congress intended the ADAAA to reinstate the broader definition of “disabled” under federal law that had existed when the original ADA was passed in 1990.

Because of the prolonged nature of disability discrimination claims, claims under the ADAAA (which only applies to events occurring after December 31, 2008) have just begun appearing in court decisions within the last two years or so.  That’s enough time to begin discerning some of the ADAAA’s effects.  One type of claim, “regarded as” or “perceived disability,” will very clearly have a tremendous impact on the employee side of disability discrimination.

“Regarded as” or “perceived disability” claims permit employees to prove that they are disabled by demonstrating that their employer regarded them as having a mental or physical impairment, even if the employee has no physical or mental impairment at all.  Employees arguing a “perceived disability” claim  do not need to show that their physical or mental impairment substantially limits a major life activity.  But, to avoid turning every minor or temporary physical or mental condition into a disability discrimination  case, the ADAAA excludes from “regarded as” or “perceived disability” coverage impairments that are transitory and minor.  A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

Disability discrimination cases require legal analysis of federal and state statutes, agency regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Snow, Ice, And The Sudden Emergency Doctrine

With wintertime driving comes the increased likelihood of motor vehicle accidents causing personal injuries or wrongful death.  Falling snow, morning fog during a brief warming period, snow, ice, and chemicals on roads, tall snow banks, frosted windows, and snow or slush spray from the road can all decrease or eliminate visibility, make  stopping and handling difficult, and sometimes simultaneously cause all those problems.  Drivers certainly need to exercise more caution during winter driving and are generally expected to do so, or face negligence liability for an accident.  But sometimes all the care in the world won’t prevent a wintertime accident.  In extreme circumstances, drivers may try to use the “sudden emergency doctrine” to avoid negligence liability.

The sudden emergency doctrine excuses a defendant’s negligence when confronted with an emergency not of the defendant’s own making.  Sudden emergency has been defined as “(1) an unforeseen combination of circumstances which calls for immediate action; (2) a perplexing contingency or complication of circumstances; (3) a sudden or unexpected occasion for action, exigency, pressing necessity.  A sudden emergency requires an “instantaneous response,” or “something fairly close.”

Iowa courts will usually tell juries that a sudden emergency is an unforeseen combination of circumstances that calls for immediate action or a sudden or unexpected occasion for action.  A driver of a vehicle who, through no fault of the driver’s own, is placed in a sudden emergency, is not chargeable with negligence if the driver exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.

The sudden emergency doctrine has been applied to motor vehicle accident cases.  Drivers use the sudden emergency defense to argue that they were not negligent because they encountered something unexpected on the road and did the best they could.  Examples include cases involving hazardous road conditions and ice.

A word of caution for those of you expecting to barrel around on the roads this winter and then scream “sudden emergency!” when the other driver you obliterate sues you.  Although the Iowa Supreme Court has retained the sudden emergency doctrine as an aspect of Iowa’s neglience law, it has expressed dissatisfaction with the doctrine and indicated various reasons why the doctrine should be eliminated from Iowa law.  So the next person who tries to use the sudden emergency defense may find that it no longer exists in Iowa.

Regardless, the sudden emergency doctrine is rarely determined to be applicable to a motor vehicle negligence case.  On the few occasions when the sudden emergency defense has been before Iowa’s appellate courts over the past twenty years, the courts have ruled in every case that the defendant was not entitled to argue the sudden emergency defense because there was no “sudden emergency.”  The Iowa Supreme Court has warned that it’ll narrowly apply the sudden emergency defense to avoid turning every road condition into a “sudden emergency.”

Employers Cannot Force Employees To Accept A Shorter Overtime Statute Of Limitations

Under federal overtime law, a claim must be brought within two years of the overtime violation unless the employee can prove that the employer willfully failed to pay overtime, in which case the statute of limitations is extended to three years.  Employees receive a separate two- or three-year time limit for each overtime violation.  Only claims for violations that occurred more than two (or perhaps three) years before suit was filed are invalid. 

Many employers include provisions in employment contracts that purport to reduce the time limit for filing an overtime claim to less than two years.  Federal courts do not honor such provisions.  They consider employer attempts to shorten the overtime statute of limitations to be impermissible waivers of employee rights under federal overtime law. 

In an earlier post I discussed the general rules against waiver of overtime rights.  Early in the history of overtime law, the United States Supreme Court was concerned that employers would try to circumvent the law’s requirements and gain a competitive advantage by demanding that employees waive their overtime rights.  Not only that, but waivers of overtime rights would also nullify the very purpose for passing such a law.  That same reasoning applies to employer attempts to restrict employees to a shorter overtime statute of limitations.

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Southern Telecom Recalls A/C Adaptors for Polaroid Internet Tablets Due to Fire Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product:

A/C Adaptor (charger) included with Polaroid PMID 709 Internet Tablets

Hazard:

The adaptors can overheat, posing a fire hazard.

Consumer Contact:

Southern Telecom toll-free at (866) 450-4493 from 8 a.m. to 10 p.m. ET Monday through Friday or online at http://www.southerntelecom.com and go to Product Support and click on “PMID709 A/C Adaptor Exchange Program” for more information.

Description

The recalled adaptor, also commonly referred to as a charger, was included with the Polaroid PMID709 seven inch Internet tablet (also known as the PMID709KB). The adaptor has two prongs for plugging into an outlet on one end and a wire leading to a single plug for the tablet. A label on the bottom of the casing near the plug prongs has “Polaroid Power Adaptor” printed on it with the model number SX-30017-D.

Incidents/Injuries

The firm has received approximately ten reports of the adaptor overheating.  No injuries or property damage have been reported.

Remedy

Customers should immediately stop using the adaptor and contact Southern Telecom for a replacement adaptor at no cost.  Customers will receive an envelope for returning the recalled product with their replacement adaptor.

Sold exclusively at

Big Lots in July 2013 for $90 for the tablet and adaptor.

Source:  http://www.cpsc.gov/en/Recalls/2014/Southern-Telecom-Recalls-AC-Adaptors-for-Polaroid-Internet-Tablets/

Job Reassignment As A Reasonable Accommodation Under Disability Discrimination Law

The Americans with Disabilities Act prohibits employment discrimination because of an actual or perceived disability.  One of the ADA’s requirements mandates that employers  reasonably accommodate individuals with
disabilities.  A reasonable accommodation is not required if if would  unless cause the employer undue hardship.  One type of reasonable accommodation is job reassignment to a vacant position.

As with any accommodation request under the ADA, employees requesting reassignment must initially establish that they are an “individual with a disability” as that term is defined by federal law.  Then, if a disability is established, job reassignment must be a reasonable accommodation.  It not always is.   Job reassignment is a necessary disability accommodation only if the employer has available a vacant equivalent position for which the disabled employee is qualified.  The employee seeking reassignment must have the requisite skill, experience, education, meet other job-related requirements of the position, and be able to perform the essential
functions of the new position with or without reasonable accommodation.

There are other limits to job reassignment as a disability accommodation.  Employers do not need to move employees out of existing positions to accommodate a disability.  Nor do they need to create a new job for disabled employees seeking reassignment.  Further, the proposed reassignment need only be roughly equivalent to the employee’s current position in terms of pay, status, benefits, or location.  The ADA doesn’t mandate that employers give disabled employees a higher-level position than the one they currently hold.

Disability discrimination cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.