In the recent Supreme Court case Berghuis v. Thompkins, 130 S. Ct. 2250 (2010), Michigan law enforcement officers interrogated Van Chester Thomkins about a shooting.  Before beginning interrogation, law enforcement advised Thomkins of his rights in full compliance with Miranda v. Arizona, 384 U.S. 436 (1966). At no point in time did Thomkins say that he wanted to remain silent, that he did not want to talk to police, or that he wanted an attorney.  For the most part, Thomkins remained silent throughout the three hour interrogation. However, near the end of the interrogation, Thomkins spoke, responding affirmatively when asked if he prayed to God to forgive him for the shooting.

Thomkins sought to have the statement suppressed, arguing that by remaining silent he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his statements were made involuntarily.  The case made its way through State and Federal Appellate Courts and finally arrived before the U.S. Supreme Court.  The U.S Supreme Court held that Thomkin’s silence during the interrogation did not invoke his right to remain silent. The Supreme Court continued noting that a suspect’s Miranda right to remain silent must be invoked unambiguously. Consequently, Thomkin’s answer in the affirmative that he prayed to God to forgive him for the shooting could be used against him in Court.

Accordingly, if you ever find yourself in a situation with law enforcement telling you that you have the right to remain silent, make sure you tell law enforcement that you will not be speaking until you have had the opportunity to retain legal counsel before maintaining your silence. Otherwise, you may discover that you have incriminated yourself by responding to what you believe is a harmless question under the mistaken impression that you have preserved your right to remain silent.

Do you know who the beneficiaries of these assets are in the event you die? Often, the beneficiaries of these assets are governed by beneficiary designation forms.  If you are completing your estate plan or have been recently divorced, you need to review your beneficiary designations.

Beneficiary Designations and Estate Planning

Even though you have a will or a trust, it may not govern who will receive certain assets when you die.  IRAs, life insurance policies, stocks, and certain retirement plans allow the owner to designate the beneficiary through a beneficiary designation form. This means that the asset may not be distributed by your will or trust.  If you would like an asset to be distributed via your trust, your trust would need to be the named beneficiary of the asset.  Reviewing your beneficiary designations is one of the most important steps in completing your estate plan.

Beneficiary Designations and Divorce

Clients often overlook the importance of reviewing their beneficiary designations after they have been divorced.  This can be a costly mistake.  In a recent United States Supreme Court case, the Court held that plan administrator performed its duty by paying retirement benefits to an ex-spouse, even though the ex-spouse waived the retirement benefits in the divorce decree.   Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 1295 S.Ct 865 (2009).  Here’s what happened:

William Kennedy was a participant in his company’s retirement plan.  While married, William named his wife, Liv Kennedy, as a beneficiary of his retirement plan.  William and Liv later divorced.  In the divorce decree, Liv disclaimed her interest in William’s retirement plan.  William neglected to change his beneficiary designation with his company.  William died.  Even though the divorce decree stated that Liv disclaimed her interest, Liv still received William’s retirement funds, and William’s estate received nothing.

What Does this Mean For You?

Whether you are completing or reviewing your estate planning, or whether you have recently been through a divorce, it is important that you review your beneficiary designations forms to ensure that the desired beneficiaries are named.  You may also benefit from seeking competent professional advice regarding the tax and legal ramifications of naming a beneficiary.

Disclaimer: The above information is a high-level overview of the need to review beneficiary designations.  In many contexts, it is important to seek competent professional advice regarding: (1) who the named beneficiary can or should be (e.g. federal law requires that a spouse of a married individual be a named beneficiary of a 401k plan, unless a waiver is obtained); (2) the tax and legal ramifications of naming the beneficiary (e.g. in the context of an IRA, it may be advantageous to have the spouse named as a beneficiary instead of a trust), and (3) to review the process of appropriately changing the beneficiary designation forms.

It appears that there are only two law firms with offices in Logan that maintain a law blog. Besides our firm, the only other law blog we found is published by Randal Crane Attorneys. As a public resource on Utah law, it doesn’t provide much information, but it’s still nice to see what’s going on at their firm.

We also have examined several similar blogs from the State of Utah as a whole. The following list is by no means a complete or exhaustive list of law blogs or websites dedicated to Utah law, as we’ve omitted any that haven’t been updated in 2009; nonetheless, here are a few links to other Utah law blogs and websites:

1. S.J. Quinney College of Law

While this website is more of a recruitment tool for prospective University of Utah law students; it has good information about Utah legal matters and events in general. It tracks the activities and speaking events of Utah law professors, which can be a great resource for the curious.

2. Brigham Young University

Again, while this website is more of a recruitment tool for prospective Brigham Young University law students; it has good information about Utah legal matters and events in general. Furthermore, it has links to law articles and upcoming events that can also be a great resource.

3. Utah DUI Trail Lawyer Blog

This is a good resource for anyone who is facing charges for driving under the influence. The latest post, which derides a proposed DUI registry in Davis County, is a good read. At Hillyard, Anderson & Olsen, we handle all types of criminal matters, including DUI cases.

4. Utah Family Law Blog

This has some great resources on alimony as well as divorce education for children.

5. Utah Divorce and Family Law Blog

This is another great resource for family law in Utah. They have a good amount of information on tax issues involving divorce and alimony. At Hillyard, Anderson & Olsen, we practice in all areas of family law as well.

6. Utah Insurance Law Blog

This is a blog that is great for lawyers and attorneys in Utah, but not so fun for people who don’t like legalese. Their most recent post is titled, “Utah Supreme Court Considers What Constitutes a ‘Product’ for Determining if the Case is Subject to the Product Liability Two Year Statute of Limitations.”

Conclusion

Along with HAO’s law blog, there are some excellent resources for Utah law online. However, we always need to caution and note that law blogs are never intended to replace an actual lawyer and the information on them should not be taken as professional legal advice in any way. Please read our disclaimer here for additional information. If you have any other questions, please contact us using the form on the right side of this page. Law blogs can, however, be helpful resources when used properly. Please feel free to leave comments and ask questions concerning the blog or any area of the law. We will do our best to address specific questions as they are posted. Also, please feel free to contact our offices at 435.752.2610 to see how we can further assist you in handling your legal needs.

In order to ensure that your wishes are carried out, it is important to have competent legal advice, along with other professional or investment advisors.  If you do not have an estate plan, we are happy to help at Hillyard, Anderson & Olsen in Logan, Utah.  Also, if you have an estate plan, but it needs to be updated, we can help there too.  Please give us a call at (435) 752-2610 to schedule a free consultation.

First, we have a great introductory video on the front page. Just click on it and it will give you an idea of the wide range of services we provide throughout Northern Utah and particularly to the Cache Valley community. The underlying theme of our video reflects the commitment of Hillyard, Anderson & Olsen to function as a “Law Firm for a Lifetime.”

This statement, “A Law Firm for a Lifetime”, makes an important point—many of our clients know that we can help them with business planning, family law and personal injury law; but, our lawyers also handle adoptions, civil litigation, collaborative law, collections, commercial law, criminal law, employment law, estate planning, governmental relations, guardian ad litem, juvenile court, land use law, mediation services, municipal law, probate administration, real estate and taxation. To show all of the areas in which we offer services, we’ve added a “Practice Areas” section.

Another feature of our site that we’re particularly proud of is the Spanish language feature. At any point in time, you can click on the Español tab on the upper right part of the screen, and the site switches to Spanish. As part of our commitment to reaching out to as much of the community as possible, we are striving to provide increased ability to access legal assistance and resources to all segments of our increasingly diversified population in Cache Valley.

We’ve also included a biography section for each attorney in the firm that showcases each attorney’s respective expertise and their community involvement in the Logan, Utah and Cache Valley area. 

If you have any questions while searching the site, please go to the Contact page or the front page and feel free to fill out a simple form for more information. You may also call us or stop by our offices at any time. Some portions of the site are still under construction and of course, we’ll be updating the site to keep you on top of happenings and events at the firm and in the Utah legal community. Please feel free to provide feedback, suggestions or ideas for improvement at any time regarding the site or any blog entries by leaving a comment below.

On June 20, 2009, the U.S. Tenth Circuit Court of Appeals upheld a lower court’s decision and ruled that the plaintiffs in a lawsuit against Cooper Tire & Rubber Co., over the tragic and deadly crash of a Utah State University van in 2005 (link to original story from 2005) have a right to documents showing how the tires were made. The Court ordered Cooper Tire & Rubber Co. to release information and documents on the design and construction of its tires. Cooper Tire & Rubber Co. manufactured the tires on the van that rolled after the left rear tire exploded.

The lawsuit against Cooper Tire & Rubber Co. arose out of the tragic September 26, 2005 accident in Northern Utah’s Box Elder County where the tread belt on a tire made by Cooper Tire & Rubber Co. separated, causing the driver to lose control of the fifteen-passenger van. As a result of the tire exploding, the van went off the road and rolled over several time before coming to a stop. The van was carrying eleven individuals—ten agriculture students and an instructor back to campus after visiting a farm in Northern Utah. Nine of the eleven individuals in the van died from the injuries they sustained in the accident. The remaining two passengers, both students, suffered severe injuries, but survived.

The survivors and heirs of the deceased passengers, some of whom are represented by Hillyard, Anderson & Olsen, brought suit against Cooper Tire & Rubber Co., alleging that Cooper Tire knew or should have known that their tires were prone to tread separation within their normal and intended use.

The plaintiffs claimed that “prior to the production of the Van Tire, Cooper Tire realized that its tires suffered from an unreasonably high rate of tread separation, but deliberately failed to make design changes or warn consumers about the problems with its tires.  Also, plaintiffs alleged that the information available to Cooper Tire before production of the tire even began “confirmed that Copper Tire knew about these dangerous and defective conditions.” Specifically, Plaintiffs argument is that the tire was defective (which lead to the separation and resulting crash) because of: “(1) improper skim bonding between the upper and lower steel belts in the subject tire, (2) ineffective and/or permeable inner liner; (3) lack of tread belt wedge; (4) ineffective anti-oxidants or anti-ozonants, [and] (5) lack of nylon cap plies.”

In its decision, the U.S. Tenth Circuit Court of Appeals indicated that “plaintiffs’ claims in this case are not purely speculative; where … the tread of one of Cooper Tire’s tires did, in fact, separate….”, ultimately resulting the death of the eight Utah State University students and an instructor. As to the production of the information and documents on the design and construction of the tires, the Court, as noted above, upheld the lower court’s finding that plaintiffs should “be permitted to engage in discovery in line with their broad theory of the case” … as “plaintiffs had demonstrated that the trade secret documents were relevant and necessary to their case….”

Herm Olsen, one of the plaintiffs’ attorneys in this case and a shareholder with Hillyard, Anderson & Olsen, said in response to the Court of Appeals’ ruling that “[t]his is a real victory for people injured by defective products. Big business tries to get away with whatever they can to preserve their profit margin, and the Court has said that they cannot hide behind privilege anymore. Just looking at your tires may work if it’s a tire pressure issue. But these tires have specific, hidden defects which are invisible to the naked eye. We know it. They know it. Now the Court has allowed us to prove it. We will continue to insist that companies be responsible and accountable—or they will pay the price.”

(Much of this entry was taken from the Court’s language in its decision; here is a link to the 10^th Cir. Ct. of Appeals’ decision:http://www.ca10.uscourts.gov/opinions/07/07-4264.pdf)

1. Don’t leave the scene
If you are involved in a motor vehicle accident, Utah law says you are required to stop. Do not leave the scene of the accident. If you do not stop, you may be found guilty of hit-and-run, even if the accident was not your fault.

2. Take safety precautions
If your vehicle is in a dangerous position on the roadway where it might be a traffic danger, you should move your car to a safe location, if possible.  If your car is undriveable or there is no safe area nearby, you should put on your hazard lights and use flares (if you have them) in order to warn other motorists and prevent another accident.

3. Call the police and get documentation
Attend to your injuries and your passengers’ injuries, and make sure that any responding parties such as the police or ambulance personnel know about all injuries.  It is important to contact the police or Utah Highway Patrol (“UHP”) and have an accident report created to document the facts of the accident.  The police report should include all relevant information, including but not limited to the names, addresses, phone numbers and insurance companies of all parties involved in the accident.  If you are physically able to do so, ask the reporting officer if they obtained the insurance information of the other driver(s). In any event, you should always obtain the following information:

(a) the other driver’s name, address, date of birth, telephone number, driver’s license number and expiration date, and insurance company and policy number;

(b) the other car’s make, year, model, license plate number and expiration date, and vehicle identification number (VIN);

(c) if the driver does not own the car, the names, addresses, telephone numbers, and insurance companies of the other car’s legal and registered owners; and

(d) the names, addresses and telephone numbers of any passengers in the car.

4. Take a picture or draw a diagram
If possible, you should personally look at and write down the license plate information of all the other vehicles involved in the accident.  If you have a camera with you and you are physically able, it is extremely important to take PHOTOGRAPHS of the vehicles at the accident scene, preferably in the position that they came to rest after impact (if it is safe to do so). If you do not have a camera, draw a simple diagram of the accident; to the best of your ability, draw the positions of the cars involved, before, during and after the accident.

5. Identify witnesses
If you are physically able, try to obtain and write down the name, address and phone number of anybody who witnessed the accident, before they leave the accident scene.  Often, people involved in an accident see or even talk to witnesses but fail to get their names. If witnesses leave before the police arrive at the accident scene, you may never be able to locate them. Independent witnesses are often crucial to determining fault for an accident.

6. Watch what you say
Avoid discussing the accident with anyone other than the reporting police officer.  What you say can and probably will be used against you in a court of law. For instance, even if the other driver is completely at fault, you may say “I’m sorry” for the fact that they were also injured.  The defense attorney for the other driver may try to twist this around and say that you meant you were sorry for causing the accident, and that your statement means you feel that you were at fault.  Be courteous, but be extremely mindful of your choice of words.

7. Get medical attention for your injuries as soon as possible
Sometimes the severity of injuries is not immediately known, and what may appear to be a minor or moderate injury can eventually become much more serious.  This is especially true with head injuries or possible internal bleeding that may not be evident to you immediately following the accident.  Sometimes, herniated discs in your spine do not cause pain immediately, or the pain fluctuates greatly over time, getting better but then getting worse.  Thus, it is important to go to an emergency room as soon as possible and then follow up with your own personal physician or any specialist to whom you are referred.  If you have a serious injury and do not see a healthcare provider for a long period of time, not only may it be detrimental to your health, but the opposing insurance company may also attempt to use this fact to argue that your injury is not as serious as you claim. Of course, you do not want to incur unnecessary medical treatment, but undertreating may be extremely hazardous to your health.  Insurance companies often LOVE to point out missed appointments to disparage a claimant’s case, so if you have to cancel an appointment, call ahead of time and reschedule.

8. Call your insurance company
Contact your insurance agent and give them whatever information they need regarding the accident.  This is especially important if the other driver does not have insurance, or if you are hit by a hit-and-run driver, who flees the accident scene.  You are required to notify the police department within twenty-four hours of a hit-and-run accident in order to later make an uninsured motorist claim.  In addition, you are responsible for filing a DMV accident report (SR1 Form) within ten days of an accident (even if you are not at fault) if the accident causes property damage over $500 or any injury or death.  Ask your insurance broker to file the SR1 Form on your behalf; if they cannot do so, you need to go the DMV department and fill out and file the SR1 Form yourself.

9. Take good photographs and video
It is absolutely crucial that if you do not have a camera in the car at the time of the accident, you take PHOTOGRAPHS of the property damage to your vehicle and any injuries you suffered in the accident. Try to take the photographs outside in good light from as many different angles as possible.  If you do not have good lighting or you are taking photographs indoors, make sure that you use a flash when taking the photographs.  Take your own photographs even if your insurance company has taken photographs because insurance companies have been known to lose photographs they have taken. If you eventually have surgery, ask the doctor to take a VIDEOTAPE of the surgery. If your case goes to trial, this will be powerful visual evidence for the jury regarding the severity of your injury.

At Hillyard, Anderson and Olsen, our lawyers handle personal injury cases for people in Logan, Utah, as well as throughout Cache Valley and the entire State of Utah, every year. Based on our experience, we have discovered
that following the steps above or failing to do so can often completely change the course of a case. These 9 steps are intended to provide you with an idea of some of the precautionary measures that should be taken after being involved in an accident. Again, this list is not intended as legal advice or as an exhaustive or complete list of precautions to take after being in an accident—it is merely intended as potentially helpful information for people who are unfortunately involved in a motor vehicle accident.

Adoptions, business law, civil and commercial litigation, collaborative law, collections, criminal law, employment law, estate planning, family law, governmental relations, guardian ad litem services, juvenile court, land use, mediation services, municipal law, personal injury, probate administration, real estate and taxation.

In general, we will be posting updates and useful information about our various practice areas; providing links to helpful resources; commenting on news, updates and developments in Utah law; and providing insight and commentary on anything else of interest in and to Utah’s legal community. We should mention that while we want you find this blog enjoyable and informative, it is not meant in any way to replace competent legal counsel and advice from an attorney and should not be construed as such. Furthermore, in no way does the information provided in this blog establish an attorney/client relationship with the reader. For more information, please see our disclaimer.

We look forward to getting your feedback. Please leave comments with your thoughts, and/or contact us with more specific questions. If you have a particular subject or case on which you’d like us to opine, please contact us directly. With your input, we expect to make this blog a resource for lawyers in Utah as well as anyone who is interested in Utah law.

Attorney Herm Olsen currently manages the personal injury department and was selected to receive the Utah Business Legal Elite award for his work in that field. His achievements have helped HAO obtain hundreds of thousands of dollars in personal injury settlements for its clients.

HAO does not charge a consultation fee for personal injury matters, and it does not charge a fee for services unless money is collected on the client’s behalf. The following are personal injury settlements Hillyard Anderson & Olsen obtained in 2007:

• Case: Pedestrian hit in crosswalk

  Injuries sustained: Fracture dislocation of left leg/hip, left femur fracture, multiple lower left extremity fractures, severe soft tissue injury
  Settled Amount: $300,000.00

• Case: Rear-tire blow-out on a Motorcycle

  Injuries sustained: Traumatic brain injury
  Settled Amount: $1,950,000.00

• Case: Passenger in a vehicle with drunk driver

  Injuries sustained: Cranial fracture, traumatic brain injury, right forearm fracture, spinal fracture
  Settled Amount: $120,000.00

• Case: Vehicle being broadsided by a construction vehicle, causing multiple fatalities

  Injuries sustained: Victim sustained a traumatic brain injury, with face, neck, and a scalp contusions
  Settled Amount: $70,000.00

• Case: Rear-end

  Injuries sustained: Back Injuries
  Settled Amount: $150,000.00

• Case: Rear-end

  Injuries sustained: Neck injuries
  Settled Amount: $100,000.00

• Case: Medical Mal-practice

  Injuries sustained: Client suffered a blood clot, post injury, resulting in death
  Settled Amount: $306,000.00

The estate planning professionals are available to everyone regardless of age, income, or family status. They can help clients with the following services:

• Avoiding complicated probate (administering estate of the deceased)
• Minimizing or avoiding estate tax
• Assuring care of surviving family members with special needs
• Facilitating transfer of estate quickly, privately, and inexpensively

For a free checklist of “Essentials for Estate Planning”, please email kim@hao-law.com.

To discuss estate planning options in more detail, please contact HAO’s office and schedule a meeting.