What Expats should know about Traffic Laws in Germany
We have all dreaded that letter from some authority especially when living abroad. Generally people would be inclined to have a good relationship with authorities or at least try to stay out of trouble for various reasons. Traffic laws in Germany are quite strict, but something that foreigners living in Germany should know though, is that in case of speeding, fines or other related offenses, it does not necessary mean that those fines are valid and that is why it is always worth consulting with a traffic lawyer or an attorney who is specialised in traffic laws before paying. Due to the complexity of laws in general in Germany it is impossible for the layman to have an oversight of what to do in specifice cases. In speeding offenses for example close to every second fine is invalid because of innacurate technical data from equipment used by traffic police. An experienced attorney for traffic laws in Berlin could have the fines quashed if there is proof the equipment used in the case was not measuring accurately. In conclusion it is definitely worth consulting a traffic lawyer in case of traffic offenses especially.
For more information on traffic offenses in Berlin you may contact:
Rechtsanwälte Dr. Breuer
Proskauer Str. 31
Tel. 030 – 42 010823
Data Security in Germany
Hardly a day goes without hearing from another data scandal or some hacking on the internet. With increasing buying possibilities on the Internet and more more people losing their fear of paying online. The chances of having sensitive personal information being leaked or hacked. In part a lot of are careless with the information they leave on the Internet. By law German companies are obligated to engage a data consultant also called „berliner externer Datenschutzbeauftragter“ who’s soul duty is to make sure that the information of customers and employes is stored and handled securely. There has to be full documentation of who can handle the data, who is qualified and appointed in the company to have access to password and admin areas.
The security of information is vital. The so called „externer Informationssicherheitsbeauftragter“ has to make sure that server systems are reliable, that firewalls are installed and in place so that hackers or bots are resisted successfully. Agidat is a Berlin based company which specializes in Data Security Processes.
Understanding Law Process In The Current World
Other alarming issues where you can seek help from them are about any employment law claim process including discrimination among employees, employee harassment, retaliation overview and decent wage and hour, for other places too. These organizations apply their legal expertise and aim to get the best for the employees for their highest benefits.
What is Employment Law Claim Process?
Organizations all over the world have entered into a phase that „people“ of the organization are vital and not only the „product.“ People that are the employees of the organization are more empowered now. Empowered not only by the labor unions, but also there are more formally set up organizations like the Law Firms and others similar ones in the industry.The primary purpose of setting up such a firm is to closely look after the needs of the employees and solve them in tune with the law.Employment issues are significant in people’s lives. Getting a job, keeping a job or negotiating a severance or retirement is all the important events in the lives of an employee. And if something goes wrong, then it can have a long term impact on their lives affecting almost all facets.If something gets wrong at the employment end, it affects the personal family life, your current living situations, and other plans.
So, this is where such organizations come into the picture.If at all you have any issue with the way your employer treats you or any confusion on the employment laws, feel free to seek help from them. Availing guidance by a professionally trained employment lawyer one can ensure that he or she receives the right kind of treatment from the workplace.These organizations deal in various and almost all issues related to the employee and their laws. Some areas of specialization and top concern are laws related to the wrongful termination of an employee. If an employee feels that he or she has been chucked out of office without a valid reason and justification for it, he can contact these professionals. Other alarming issues where you can seek help from them are about any employment law claim process, including discrimination among employees, employee harassment, retaliation overview and decent wage and hour Attorney, for other places too.These organizations apply their legal expertise and aim to get the best or the employees for their highest benefits.
Located in some very premiere work areas, it is just a step away from you.Customers can also look forward to their guidance by only fixing an appointment over the call with the advisor. So you employees the next time you face a tough time at the office, you need not negotiate and get your hands dirty, just contact us. We are there to safeguard your employment, as your employment matters.
When to Consult a Labor Attorney
When to Consult a Labor Attorney Introduction
Labour attorneys, in some countries, are also referred to as labor lawyers. Their primary role is to legally represent employers, employee or unions in disputes where the labor law has been violated.
Scenario Where Someone Has to Consult with a Labour Attorney
There are various instances which can force someone to refer to a labor attorney. As mentioned earlier, companies, individuals working in given organizations or worker unions can seek advice from the attorney, whenever they feel that the employment relationships are at trial. Some of the instances are as explained below.
Mistreatment and Discrimination
Employees might be mistreated at work on different occasions by their seniors. It can arise due to several misunderstandings between them and their employers. Of the common mistreatment cases that have been reported is sexual and physical abuse. Other than that, one can be discriminated on various circumstances. Most discrimination cases encountered are due to gender, race, color and ethnicity background. Discrimination and mistreatment are a huge breach of labor law. One is advised to consult an employment lawyer in case this happens.
Unlawful termination is also called wrongful dismissal or wrongful discharge. Here, a worker’s contract of employment is stopped by the employer, violating terms of the contract of employment. It Has been on the rise worldwide with several cases reported. Among the popular ones, employees have been forced to retire earlier whereas others have been denied their retirement benefits. Other employees are also unlawfully dismissed whenever they refuse to commit illegal acts as directed by their employers. A labor attorney can be of very vital importance on this. He will provide advice regarding the same and if necessary file a lawsuit and represent the affected victim.
Labour laws, apart from the just mentioned can be many. Besides, they are different in given nations. It is, therefore, necessary for one to consult with a certified labor attorney from his state for guidance whenever such need arises.
Experienced lawyers who approach their first examination under oath as they would a discovery deposition typically find themselves in for a sudden shock. In such cases, the attorney representing the insured may find himself less than prepared to present his client for questioning; and similarly, the attorney representing the insurer may find herself uncertain of the scope and depth of the insurers‘ right to examine its insured.
While property insurance policies differ somewhat amongst insurers, most policy forms provide the insurer with a right to demand the „examination under oath“ („EUO“) of its insured, and a right to demand records and documents in support of the presented claim.
The standard policy provision respecting an insurer’s right to conduct an EUO typically provides:
YOUR DUTIES AFTER LOSS.
After a loss to which this insurance may apply, you shall see that the following duties are performed:
As often as we reasonably require:
Provide us with records and documents we request and permit us to make copies;
submit to examinations under oath and subscribe the same;
Simply, an EUO is a formal proceeding during which an insured, while under oath, and typically in the presence of a court reporter, is questioned by a representative of the insurer regarding the presented claim.
IMPACT OF THE INSURED’S FAILURE TO COMPLY
An insured’s failure to comply with an insurer’s demand for an EUO generally constitutes a material breach of contract which renders the insurer void of liability for the presented claim. See Saucier v. U.S. Fidelity & Guar. Fund Co., 765 F. Supp. 334 (S.D. Miss. 1991), and Stover v. Aetna Casualty, 658 F. Supp. 156 (S.D.W. Va. 1987).
Moreover, the insurer need not show prejudice from the insured’s refusal to comply so long as the refusal resulted in an unreasonable delay. U.S. Fidelity & Guar. Co. v. Wigginton., 964 F.2d 487 (5th cir. 1992). Even a belated offer by the insured to comply with a demand for an EUO may not excuse its breach if, as a result of the delay, information is difficult to recall or evidence is destroyed. Watson v. National Sur. Corp. of Chicago, IL, 468 N.W.2d 448 (Iowa 1991).
Further, if an insured makes its first offer to comply with an insurer’s demand for an EUO while the case is on appeal, such an offer may likely be viewed as insufficient to constitute reasonable compliance and will not likely excuse the earlier breach. Pervis v. State Farm, 901 F.2d 944 (11th Cir. 1990), cert den. 498 U.S. 899 (1990).
As an aside, the Court in Pervis held that recorded statements taken of the insured by the insurer are not a substitute for an EUO and do not excuse the insured from submitting to one. The Court also held that the insurer was under no obligation to repeat its formal demand for an EUO once the insured had refused. Id. at 908.
A FORMAL „DEMAND“ IS REQUIRED
An insurer’s „demand“ for an EUO is generally a condition precedent to the insureds‘ obligation to comply. The demand must designate the time and location of the EUO, as well as the identity of the individual conducting the exam. (See Weber v. General Accident Fire & Life Assurance Corp., 10 Ohio App.3d 305, 462 N.E.2d 422 (1983) and Huggins v. Hartford Ins. Co., 650 F.Supp. 38 (E.D.NC. 1986). In addition, an EUO should be held within a reasonable distance from the insured’s home.
The Weber Court also held that notice must be sent not just to the insured’s attorney, but also to the insured. Failure to comply with these notice provisions may result in the insurer’s waiver of its defense that the insured failed to submit to an EUO. 462 N.E.2d at 424.
WHO THE INSURER MAY DEMAND FOR AN EXAM
In State Farm Fire & Casualty Ins. Co. v. Miceli, 164 Ill.App.3d 874, 115 Ill.Dec. 832, 518 N.E.2d 357, at 363 (1987), the Illinois Appellate Court (1st Dist.) held that a duty to demand an EUO applied only to named insureds and not their children, even though coverage extended to them. In apparent response to the Court’s holding in Miceli, many insurers have modified their policy language with respect to their right to demand an EUO. The modified policy language typically provides:
YOUR DUTIES AFTER LOSS.
After a loss to which this insurance may apply you shall see that the following duties are performed:
As often as we reasonably require, submit to and subscribe, while not in the presence of any other insured…, examinations under oath; and produce employees, members of the insured’s household or others for examination under oath to the extent it is within the insured’s power to do so…(emphasis provided).
Accordingly, unlike a deposition, an insurer, by right of contract, may be allowed to close the exam to anyone other than the insured being examined and their legal counsel. It should also be noted that where the insured is a corporation, its officers may also be subject to an EUO. Ausch v. St. Paul Fire & Marine Ins. Co., 511 NYS2d 919, 125 A.D.2d 43 (1987), appeal denied 516 N.E.2d 1223 (1987).
ALLOWABLE SCOPE OF QUESTIONING
During an EUO, all questions considered material and relevant to the claim must be answered by the insured. The refusal of an insured to answer such questions, whether under advice of an attorney or not, may result in a legitimate denial of the claim.
While Courts have given broad scope to what an EUO may encompass, (See Passero v. Allstate Ins. Co., 196 Ill.App.3d 602, 143 Ill.Dec. 449, 554 N.E.2d 384, at 387 (1990)), the scope has been limited to whatever is material. Thus, the EUO may include anything considered material for the purpose of determining the insurer’s liability to a claim, and may include anything that reasonably allows the insurer to protect itself from false claims. (See Passero, 554 N.E.2d at 388).
For example, in a case of suspected arson, the insurer generally may question the insured on matters relating to the insured’s financial condition in an effort to establish whether a motive for arson existed. Accordingly, in Gipps Brewing v. Central Manufacturers, 147 F.2d 6 (1945), the Court allowed a „searching exam“ of the insured where the insurer had a reasonable basis for suspecting fraud by the insured.
Unlike depositions, the insurer may be allowed several „bites at the apple“. Thus, as noted previously, the policy language in many property policies provide that an insurer may exam its insured „as often as we reasonably require“.
Thus, if prior to reaching a coverage decision, and subsequent to an EUO, the insurer uncovers additional facts which reasonably require further questioning of the insured, another demand for the insured’s exam may by considered appropriate if the contract provides accordingly. Note, however, that the Court in Watson, 468 N.W.2d 448 (1991), held that the insured does not breach the policy where it has substantially complied with the insurer’s demand for an EUO.
It is also interesting to note that if suit is later filed respecting the presented claim, the insurer will, in accordance with the Code of Civil Procedure, likely be allowed an opportunity to also depose the insured.
PRODUCTION OF RECORDS
Generally the insurer, in addition to a demand for an EUO, will demand that the insured produce certain documents to assist in substantiating their claim. Refusal to comply with the demand to produce the requested documents, if material and relevant to the insurer’s investigation, will likely result in a legitimate basis for denial of the claim.
Courts have frequently allowed the insurer to demand from the insured, as part of its claims investigation, material documents such as income tax returns and bank statements. (See U.S. Fidelity & Guaranty Co. v. Conaway, 674 F.Supp. 1270 (N.D.Miss. 1987); Stover v. Aetna Casualty, 658 F.Supp. 156 (S.D.W.Va. 1987); and Kisting v. Westchester Fire Ins. Co., 290 F.Supp. 141 (W.D. Wis.1968), aff’d 416 F.2d 967 (7th Cir. 1969)). However, in Chavis v. State Farm, 317 N.C. 683, 346 S.E.2d 496 (1986), the Court qualified the above-stated general rule and held that an insurers‘ request for financial documents must be both reasonable and specific.
WAIVER OF RIGHTS
An insurer’s right to examine its insured is a privilege which may inadvertently be waived by the insurer. For example, a waiver of the right to examine the insured may occur by the insurer accepting or denying liability for a claim prior to demanding an EUO. Thus, rights under the policy may be lost by waiver or estoppel where the conduct of an insurer induces the insured to believe that he need not comply with certain policy provisions or that such provisions will not be enforced. Downing v. Wolverine Insurance Co., 62 Ill.App.2d 305, 210 N.E.2d 603, at 606 (2nd Dist. 1965).
In fact, the Court in Gipps Brewing, 147 F.2d 6 (1945), held that policy provisions which state that no waiver can occur without the waiver being in writing, may still be waived by the conduct of the insurer.
Accordingly, it is not uncommon for an insurer to request the insured’s execution of a „non-waiver agreement“, i.e., a mutual agreement acknowledging that no rights of either party are being waived. Needless to say, many insureds, particularly those suspected of fraud, will not readily agree to sign a non-waiver agreement. In such cases the insurer will typically issue a reservation of rights letter to the insured which will, for all intents and purposes, unilaterally accomplish the same goal.
INSURED’S RIGHT TO LEGAL COUNSEL
Typically, an attorney is retained to represent the insurer and will make the demand and conduct the exam. In many cases, the insured will likewise retain legal counsel who, needless to say, will request to be present during the proceeding.
Courts have held that while an insured has a right to have its own attorney present at any EUO, the insured’s attorney can not participate in the EUO. (see Hart v. Mechanics & Traders Ins. Co., 46 F.Supp. 166 (1942) and Shelter Ins. Co. v. Spence, 656 S.W.2d 36 (Tenn App. 1983)). Also, it is important to mention that denial of an insured’s right to legal representation may bar the insurer from denying a claim on the basis of the insured’s failure to comply with its demand for an EUO.
INSURED’S RIGHT TO SEEK PROTECTION UNDER THE 5TH AMENDMENT
Courts have held that while the insured has the right to assert protection under the 5th Amendment, it has no application to a private examination arising out of a contractual relationship. In short, the 5th Amendment is not an excuse for failure to comply with an EUO. See Galante v. Steel City Nat. Bank, 66 Ill.App.3d 476, 23 Ill.Dec. 421, 384 N.E.2d 57 (1987), Abraham v. Farmers Home Mutual Ins. Co., 439 N.W.2d 48 (Minn. 1989), and Hickman v. London Assurance Corp., 184 Cal. 524, 18 A.L.R. 742, 195 P. 45 (1900). The Court in Kisting, 290 F.Supp. 141, at 149 (1968), reasoned that an insured should not be allowed to use the 5th Amendment as both a shield and a sword.
In Floyd Baldwin v. Bankers & Shippers Ins. Co., 222 F2d. 963 (1955), the Court held that, so long as the request was material to the examination, an insured must reveal its tax records even if it might subject the insured to possible criminal prosecution. Furthermore, in Pervis, 901 F2d. 944 at 946-7, footnote 4 (11th Cir. 1990) the Court stated that whether or not the insurer knew of and cooperated with the prosecution of the insured, the insurer was still entitled under the contract to seek a sworn statement from the insured.
COMPLIANCE WITH INSURER’S DEMAND IS A CONDITION PRECEDENT TO SUIT BY THE INSURED
According to the terms of most property policies, failure by the insured to comply with the insurer’s demand for an EUO will likely impede a suit by the insured against the insurer for the insurer’s denial of coverage. The applicable policy provision provides:
Suit Against Us. No action shall be brought against us unless there has been compliance with the policy provisions.
An examination under oath, effectively conducted, is a useful and expedient method for assisting the insurer in reaching a wise and fair coverage decision respecting a claim; and, it also provides an opportunity to the insured to explain, at length, the circumstances of the loss, and provides the insured an opportunity to substantiate the value and its interest in the property claimed.
Rick Hammond is a partner in the Chicago law firm of Chuhak & Tecson. He concentrates his practice on first-party insurance coverage matters and on insurance fraud investigation and litigation. He is on the Board and faculty of the Insurance School of Chicago and is Chair of the Insurance Law Section Counsel for the Illinois State Bar Association.