Archive for September, 2008

JHA Finds Growth in Group Life And DI Markets

Friday, September 26th, 2008

Insurers are reporting modest increases in revenue from U.S. group life and U.S. individual disability policies already in force.

Combined revenue from employer-paid and employee-paid group life rose 3% in 2007, to $18 billion, even though premium revenue from new group life sales flattened out at about $2 billion, according to researchers at JHA, Portland, Maine.

In-force premium rates at the 32 insurers that participated in the JHA group life survey fell 1%, to 23 cents per $1,000 of coverage, while the average premium for new sales was about 19 cents per $1,000 of coverage.

Although coverage was cheaper, the average death benefit per covered employee fell 5% for new sales of employer-paid plans, to $63,598, while the average fell 3% for new employee-paid plans, to $72,979, JHA researchers report.

Meanwhile, the researchers who conducted the JHA U.S. individual disability insurance market survey, which included 15 carriers, say total individual disability insurance premium revenue increased 3%, to $4.2 billion as revenue from new sales jumped 7%, to $342 million.

The number of policies in force edged up about 1%.

Cost of caring for aging parents is looming financial crisis for many adult children

Friday, September 26th, 2008

63% of survey respondents don’t have a plan to pay for their aging parents’ care

Many people find themselves responsible for paying for the care of their parents in old age. The parents did not plan it that way and the children did not see it coming. According to a just-released survey, these adult children of aging parents have found themselves vastly unprepared.

The survey found: 

  • 63% of caregivers have no plan as to how they will pay for their parents’ care over the next five years.
  • 62% say the cost of caring for a parent has impacted their ability to plan for their own financial future.

“With an estimated 34 million Americans providing care for older family members, the survey’s results indicate a financial crisis in the making,” says Joe Buckheit, Publisher of AgingCare, a website and online forum for family caregivers.

“Medicare only covers long-term care for a short time, and only under strict rules. Medi-gap insurance helps, but does not cover all costs. The burden of paying for long-term care often rests with the family,” Buckheit says.

“The caregivers’ lack of planning is impacting their own financial future.”

Long-term care costs are not the only expenses caregivers bear.

“Family members responsible for ailing loved ones provide not only hands-on care but often reach into their own pockets to pay for many daily expenses, including groceries, household goods, drugs, medical co-payments and transportation,” says Buckheit.

“Americans who are already strapped for cash by the rising price of gas and food are unable to afford these additional expenses.”

The survey found: 

  • 34% spend $300 or more per month out of their own pocket for caregiving expenses.
  • 54% have sacrificed spending money on themselves to pay for care of their parents.

Work Issues
Making matters worse, caring for aging parents often impacts adult children at their workplace as well. The survey found: 

  • 43% have had to take time off work due to caregiving responsibilities.
  • 48% say they are earning less money at work as a result of caregiving.
  • 25% have been fired or had to quit their job as a result of caregiving.

Physical and Emotional Toll
Despite potentially making less money and doling out more, more than half of the caregivers surveyed are spending what equates to a full-time work week   • 40 hours or more  •  on caregiving duties  •  many in addition to their full-time careers outside the home. 

  • 53% of caregivers provide care 40 or more hours per week.
  • 37% provide care more than 80 hours per week.
  • 21% say they never get a break from caregiving.
  • 36% get a break of 5 hours or less a week.

The survey indicates that today’s caregivers face a triple financial threat: unplanned-for caregiving expenses, less money for their own needs and reduced time in the workplace.

Update on government records (OPRA) and citizen rights

Friday, September 26th, 2008

You may beat the system but still have to pay your attorney fees.   It is not a sure thing that a citizen filing suit against governmental agencies who refuse or delay releasing public records will be able to recover legal fees.  The state’s law has a key attorney fee shifting weapon available to private citizens against recalcitrant agencies.  New Jersey’s OPRA is one of the few state and federal statutes allowing fee shifting. The principal behind fee shifting is to enable those who believe that they have been wronged to hire a lawyer to take on a case in a matter of the broad public interest.  The New Jersey Supreme Court has ruled that plaintiffs in lawsuits against public entities and their lawyers willing to take on such challenges must show that it was the institution of the lawsuit that caused the governmental agency to provide the public records.   In a recent decision, the high court ruled that fee shifting is allowed under the Open Public Records Act (OPRA) if an agency releases the records after a suit was filed and sometimes even before the issue is adjudicated but the court has a critical caveat, it doesn’t mean that there will be fee shifts all of the time.

The Court has determined that if someone sues the government for the documents and the agency turns them over before the court decides the issue, the facts or records must show it was the filing of the suit that effectively caused the agency to comply before the plaintiff can get fees from the agency.  The significance of the case is that no one should presume that a citizen fighting the system to obtain public records will have his/her/its fees and costs reimbursed.  Rather, the party and their attorney will have to evaluate whether in the end a victory comes at a significant financial expense to the party.   While encouraging this recent case requires a sober analysis of all issues before a lawsuit is filed.

For more information on this decision, contact Bonnie Wright, Esq. at bwright@hnlawfirm.com

New Jersey town allowed to zone out

Friday, September 26th, 2008

Without comment, the U.S. Supreme Court has decided not to review  a much publicized case in which Long Branch zoned a self described mission church out of a downtown area marked for development as an entertainment district.  The Third Circuit Court of Appeals in Lighthouse Institute for Evangelism, Inc. vs. City of Long Branch held that the City’s action did not violate the Federal Religious Land Use and Institutionalized Persons Act of 2000.   The court said that the church was not being treated unfairly or unequally under the Federal law.   The decision provides clear guidance now to municipalities in New Jersey and the rest of the Third Circuit states to support their zoning powers to permit or not to permit places of religious worship within specified zoning districts.  

One of the interesting issues of the case was that the city had argued Lighthouse Institute for Evangelism, Inc. did not even qualify as a church subject to the protections of the Federal Act.   Questions concerning this article should be directed to Bonnie Wright, Esq. at bwright@hnlawfirm.com.

Trust’s attorney not liable under RICO

Friday, September 19th, 2008

A federal appeals court upholds the dismissal of a trust beneficiary’s lawsuit claiming that an attorney who worked for the trustee violated the Racketeer Influenced and Corrupt Organizations (RICO) Act, because there was no evidence that the attorney directed any of the alleged misconduct. Walter v. Drayson (9th Cir., No. 07-16284, August 18, 2008).

Patricia Walter died in 2005, leaving most of her assets in trust for the benefit of her four children. One of the children, Robert Walter, filed a complaint against several of the trustees and the attorney who worked for them, alleging that they removed property from the trust after his mother’s death and that they failed to rent the real property held in the trust.

As part of his suit, Mr. Walter contended that the parties violated the RICO Act by acting as an associated-in-fact criminal enterprise looking to take control of the trust and its assets. The trial court dismissed the suit, finding that the attorney for the trust was acting in her capacity as counsel for the trust and not as a partner who directed any of the alleged illegal conduct. Mr. Walter appealed, arguing that the attorney’s participation was essential to and contributed towards the operation of the alleged scheme to steal funds from the trust.

The 9th Circuit Court of Appeals upheld the trial court’s dismissal. The court explains that in order to have a case under the RICO Act, there must be evidence that a party had some part in directing the affairs of the organization. The court finds that “one can be ‘part’ of an enterprise without having a role in its management and operation. Simply performing services for the enterprise does not rise to the level of direction, whether one is ‘inside’ or ‘outside.’ Accordingly, neither reasonable inferences, nor triable issues, exist sufficient to subject [the attorney] or her firm to liability”.

For the full text of this decision, click here.

Study: Bankruptcies soar for senior citizens

Friday, September 19th, 2008

First came the health problems. Then, unable to work, Ada Noda watched the bills pile up. And then, suffocating in debt, the 80-year-old did something she never thought she’d be forced to do.

She declared bankruptcy.

While the bankruptcy filing rate for those under 55 has fallen, it has soared for older Americans, according to a new analysis from the Consumer Bankruptcy Project, which examined a sampling of noncommercial bankruptcies filed between 1991 and 2007.

The older the age group, the worse it got – people 65 and up became more than twice as likely to file during that period, and the filing rate for those 75 and older more than quadrupled.

“Older Americans are hit by a one-two punch of jobs and medical problems and the two are often intertwined,” said Elizabeth Warren, a Harvard Law School professor who was one of the authors of the study. “They discover that they must work to keep some form of economic balance and when they can’t, they’re lost.”

That’s precisely what happened to Noda. She worked all her life, on a hospital’s housekeeping staff, and later selling boat tickets to tourists. She cut corners when she needed to but always paid the bills she neatly logged in a ledger.

“I was born during the Depression,” she said. “I paid the bills whether I ate or didn’t, whether I went to the doctor or not.”

It all worked fine for Noda, a widow for 23 years, until she was forced to undergo double-bypass surgery and deal with respiratory problems. She started using two credit cards more frequently for food and bills. Before long, she was $8,000 in debt and behind on car payments.

“I’d go to bed and all I had on my mind was bankruptcy,” she said. “I had nothing left.”

Noda’s car was repossessed, but her trailer home wasn’t in jeopardy because her daughter owns it. While she’s covered by Medicare and receives $968 in Social Security each month, she relied on her job for other expenses. She had no choice but to get help from Jacksonville Legal Aid and declare bankruptcy.

Most bankruptcies are still filed by people far younger than Noda, but the percentage the younger filers make up has fallen over the 16-year period, according to the Consumer Bankruptcy Project analysis, which will be published in the Harvard Law and Policy Review in January.

In 1991, the 55-plus age group accounted for about 8 percent of bankruptcy filers, according to the study, which looked at more than 6,000 cases filed in 1991, 2001 or 2007. By last year, filers 55 and over accounted for 22 percent.

Each age group under 55 saw double-digit percentage drops in their bankruptcy filing rates over the survey period, older Americans saw remarkable increases. The filing rate per thousand people ages 55-64 was up 40 percent; among 65- to 74-year-olds it increased 125 percent; and among the 75-to-84-year-old set, it was up 433 percent.

A number of factors are contributing to the increase. Higher prices for ordinary consumer goods have hit seniors on fixed budgets. For older Americans living below the poverty level, or not far above, a safety net likely doesn’t exist for economic setbacks such as medical problems. And some fall prey to scams that cripple their finances.

Warren noted increasing numbers of Americans are entering their retirement years with significant debt and are still paying off mortgages. She said it was wrong to assume that lives of luxury are bankrupting seniors; rather, they’re incurring debts to meet needs such as medical treatment.

“There’s no evidence that the problem is consumerism,” the professor said.

Nor is there a significant aging trend to blame. While the country is set to experience a notable age shift in the coming years, no major one took place between 1991, when the average age was 33, and 2007, when it was 36.

Frank and Hazel Peters lived frugally their entire 53-year marriage. They always rented a home but decided after the husband’s retirement from a factory job that they would cash in his 401(k) and buy a manufactured home down a gravel road in tiny Hastings, a town of cornfields and potato farms.

But they fell victim to fraud when they tried to fix a plumbing problem that had black, sulphur-smelling water coming through the pipes of their new home without enough funds to fall back on. They declared bankruptcy.

“We knew we had no other option,” 73-year-old Hazel Peters said. “We’d probably be out on the street.”

Bankruptcy, tough no matter a person’s age, is especially hard when you don’t have many years left to recover. Warren said some seniors fear telling their families because they’re afraid they’ll be put in a nursing home if they’re seen as unable to take care of their affairs.

Many who file also express a sense of relief.

Wilona Harris, 71, filed bankruptcy two years ago because of medical bills she and her husband accrued.

“This phone rang all the time. It made you not even want to pick up. Sometimes you think, ‘Let me go jump off a bridge somewhere,’” Harris said at her Jacksonville home. “You have to cry and try and figure out what in the world could I do.”

At least now, Harris says, she can fall asleep without crying.

Can an employer regulate your private life?

Friday, September 19th, 2008

Many employees do not realize that employers in New Jersey may have the right to regulate and prohibit personal lifestyle choices after work and during their private time unless the conduct falls within a clear cut constitutional privacy protection or meets a clear mandate of public policy protecting private lifestyle choices.  Generally, the prohibited conduct relates to extramarital affairs, romantic relationships among co-workers, free speech, smoking bans and other private lifestyle choices.    All employers and employees are cautioned that the scope of the prohibited conduct will be closely reviewed by the Courts in New Jersey.   New Jersey seems to follow (as customary) its own thoughts on permissible versus unpermissible conduct. 

In a leading case, the Court has indicated that while an employer is free to discharge an employee at will, the general rule must yield when an employer Aacts contrary to public policy in accordance with the leading New Jersey case of Pierce vs. Ortho@.  

Questions about what may or may not be permissible versus dischargable private behavior by an employer?  Lauren Bercik, Esq. handles the firm’s employment related issues.  She can be contacted at lbercik@hnlawfirm.com.

Census reports senior citizen population to double by 2050

Friday, September 12th, 2008

A U.S. Census Bureau report yesterday said the number of citizens age 65 and older will more than double their current number from 38.7 million to 88.5 million in 2050.

American residents who are 85 and older will meanwhile triple in number from 5.4 million to 19 million by mid-century, the federal agency projects. A shrinking of the working-age population (i.e. those 18 to 64) is expected to occur along with the enlargement of the older population; working-age residents are expected to be 57 percent of all residents in 2050, down from 63 percent now.

The Census also projects the overall population of the U.S. will grow from roughly 305 million people today to 439 million in 2050.

America’s steep aging has signified to many policy analysts a need to reduce the cost of entitlement programs, particularly Social Security and Medicare.

“This certainly makes entitlement reform more urgent,” Michael Tanner, a senior fellow at the D.C.-based Cato Institute, told The Bulletin, noting entitlement spending could grow to become one third of gross domestic product by mid-century. “That’s not economically sustainable.”

Other observers, like Brookings Institution economist Gary Burtless, are less apprehensive.

“The situation for Social Security is not terribly dire,” he said. He said the higher pension benefits other rich western governments spend on their aging populations are important to consider for perspective. He also said these other countries face larger increases in their numbers of seniors.

Dr. Burtless said Medicare and Medicaid, which provide healthcare to the elderly and the poor, present more pressing concerns but not primarily because of aging but because of the advances in medicine that have caused costs to go up. In 1960, he said, personal healthcare expenditures made up 7 percent of personal spending overall.

That figure is 20.5 now and is expected to continue rising. Government currently pays 45 percent of Americans’ health expenses and that percentage is also projected to rise.

“That does represent a big problem,” he said.

Mr. Tanner said because the population is aging so rapidly, the constituency most wary of scaling back entitlement programs and instituting free-market reforms stands to gain political clout and make changes more difficult to implement.

“There’s always been a bias in favor of voting in favor of seniors’ benefits because seniors vote and young people don’t,” he said.

One political development Mr. Tanner found telling was Republican presidential candidate John McCain’s refusal to back either a GOP proposal to cut Medicare reimbursements to doctors and hospitals or a Democratic measure to cut reimbursements to Medicare Advantage insurers.

Mr. Tanner said lawmakers are in a constant balancing act between efforts to fully reimburse the medical community for the care they provide and attempts to hold down spending. He said the government could resolve the matter by funding patients or insurers instead of each individual medical procedure.

The Census study also projects that racial minorities, making up about a third of the U.S. population today, will constitute a majority in 2042 and reach 54 percent of the population by mid-century, or 235.7 million out of 439 million total U.S. residents. The percentage of nonwhite U.S. children, meanwhile, will rise to 62 in 2050, up from 44 percent today.

Real Estate Crisis – Foreclosure Procedure Updated

Friday, September 12th, 2008

The New Jersey Supreme Court has adopted a set of new and revised rules on mortgage foreclosure procedures designed to modernize the foreclosure practice in the face of the real estate crisis gripping the nation and particular and New Jersey in general.
 
Going forward, all foreclosing plaintiffs will be required to file a foreclosure specific case information statement with its first pleadings.   In addition, the new rules will require that the foreclosing party serve an affidavit of the amount due along with a Notice of Motion requesting final judgment of foreclosure.   The advisory committee on foreclosure practice in its statement believes that this rule amendment will put lenders, borrowers, and other parties on notice of this specific amount due and how it was calculated.

If you have any questions regarding New Jersey’s foreclosure practice, you may contact Bonnie Wright, Esq., at bwright@hnlawfirm.com.

A Sublease Violation Costs Tenant it’s Lease; Court Allows Eviction

Friday, September 12th, 2008

Don’t assume knowledge of a violation of a lease provision will allow you to avoid eviction.  A recent NJ decision involving a commercial landlord and tenant is significant, in part, because it originates from the Appellate Division and therefore it is binding statewide.   The Court considered a judgment entered by the lower court for possession in favor of the landlord.   The lease specifically prohibited the tenant from assigning or subletting any portion of its space and the adjacent exterior parking space without the written consent of the landlord.   The landlord alleged that the tenant subleased part of its space to an unrelated third party business without its knowledge or consent.   The tenant alleged that the landlord knew that the third party was an unrelated business co-occupying the space since the beginning of the lease and therefore, was chargeable with knowledge of the lease and thereby waived the enforceability of the “no-subleasing or assignment” provision in the lease.  The Court ruled (based on the facts of the case), that the landlord was entitled to evict the tenant for a material breach of the lease by failing to get his permission to sublease or assign this space.  

This case stands for the proposition that if a lease requires that the tenant or landlord give notice or perform an affirmative obligation in writing, each side better be able to prove that written notice was given to other.

For more information on this decision, contact Christopher Hanlon at chanlon@hnlawfirm.com.