By Adam D. Schmaelzle, Esq.   It’s that familiar time of year for all of us New Englanders when the leaves change colors, everything tastes like pumpkin and we accidentally put our sweaters in the dryer. But fall isn’t just a time to jump in leaf piles and grow our beards. As we all know, there are many new changes to the environment that could lead to some dangerous situations. Personally, I fall victim to slippery wet leaves just about every year. And while my clumsy self might be a little less aware of my surroundings, I am aware of the law.   So New Englanders, here is my gift to you. A blog article based on slip and falls in Massachusetts.   The term “slip and fall” is pretty self-explanatory. It refers to a situation where a person becomes injured after tripping or slipping on some dangerous condition on somebody else’s property.  If the injury should have been avoided, the property owner could become legally responsible to the injured person on the theory of negligence.   Why does the property owner become responsible? It may seem like an obvious answer, but many people don’t realize that when one assumes the […] Read More
By Adam D. Schmaelzle, Esq.   Now that the summer is finally upon us, the local and state police are paying more attention than ever to drunk drivers. In an effort to reduce the amount of injuries and fatalities caused by drunk driving, the police have been conducting OUI checkpoints/roadblocks in various “problem areas” to minimize the risks and make an arrest. With this in mind, it is important to know your rights if you find yourself in an encounter with law enforcement.dui-checkpoint   What is an OUI checkpoint, otherwise known as an OUI roadblock? A roadblock is a constitutionally permissible seizure where the police have a quick interaction with every driver at a particular time on a particular road for the purpose of arresting drunk drivers. Generally, you will find a roadblock on a main road between the hours of 12:01 a.m. to 3:00 a.m. As you wait in a line of vehicles, you will probably see a state trooper standing at the driver’s side window of a motorist who is in front of you. This is the “screening officer”. As you approach the screening officer, he or she will ask you to roll your window down. He/she will […] Read More
By Adam D. Schmaelzle, Esq.   Back in 1988 there was this guy named Dr. Philip Charley. Philip used to work for a company called “Truesdail” which was a testing facility.  They would test things like the urine of horses before a race or testing related to industrial accidents. Charley v. Commissioner Internal Revenue Service, 91 F.3d 72 (9th Cir. 1996).  (See Link 1)   A large part of Phillip’s job was to travel by plane to collect samples or inspect machinery, and when he did so, Truesdail would bill the Client for first-class travel expenses. id. But Philip was a crafty guy, and he was racking up a hefty amount of air miles with all of his traveling.  So instead of booking a first-class ticket, he would instruct the travel agent to book him a coach ticket and send a bill to Truesdail for first-class. id.  He would then use his air miles to upgrade his ticket from coach to first-class; and his travel agent would deposit the difference between the two tickets into Philip’s personal account. id.   That’s not where it gets tricky.   Dr. Philip Charlie made $3,149.93 that year for his “sale” of airline miles and […] Read More
By Adam D. Schmaelzle, Esq.   One of the many changes we are seeing these days throughout New England is the utilization of renewable energy.  Massachusetts’ commercial property and residential homeowners are quickly jumping on the solar power bandwagon in an effort to harness clean independent energy while larger companies are making efforts to build massive European inspired offshore wind farms (See Link).  And why wouldn’t we?  We could potentially save some money on our electric bill while simultaneously doing our part to save the environment, right? It’s almost a no brainer, and it’s brilliant!  But most people are not aware of the legal side of renewable energy.  For the sake of this article I will be focusing on the legal aspect of residential solar paneling.   For some background: There are two basic types of solar energy systems that are commonly used in the residential setting:  photovoltaics and thermal.  Thermal solar systems are mostly used for storing heat while photovoltaics are designed to absorb sunlight and turn it into electricity.  Due to the high cost of thermal energy systems and the ability to heat a home with photovoltaics alone, photovoltaic solar systems are becoming much more popular (and cost […] Read More
By Adam D. Schmaelzle, Esq.   In 2012 the state Senate passed a bill in Massachusetts known as “The Valor Act” which extended benefits and services that were available to veterans and active military members.  One year later, another bill known as “The Valor Act II” was passed, which expanded on the benefits from the previous bill.  Then on April 3, 2014, many of the provisions regarding veterans were revisited, including one that aimed to lower the cost of living adjustments to retired vets.  That piece of legislation was fortunately shut down while several other provisions were adjusted and approved.  Those amendments are known as “AN ACT RELATIVE TO VETERANS’ ALLOWANCES, LABOR, OUTREACH AND RECOGNITION” and can be found under Massachusetts Session Laws Chapter 62 (Link Below).     Contained within the 2012 version of The Valor Act was an amendment to M.G.L Ch. 276 under Title II: Proceedings in Criminal Cases.  This chapter deals with pretrial diversion of selected offenders.  It is essentially a list of individuals who MAY qualify under certain circumstances for diversion to a treatment program as opposed to being held in jail.  That 2012 amendment added veterans or active service members to the list if […] Read More
By Adam D. Schmaelzle, Esq.   Let’s say you’re driving along the highway and you get a flat tire.  You might find yourself in a situation where your car needs to be towed to a local shop, and you have to buy a new tire at that shops prices, right then and there.  If your tire didn’t pop, you might have gone somewhere else.  Shopped around a little. Maybe found a better rate.  But unfortunately, you’re stuck footing the bill at those prices because you needed it immediately.  That’s generally how it works when a person hires a lawyer.  They’re stuck in some situation, they’re forced to hire a problem solver, and they end up spending a whole bunch of money by the end of the whole charade.   People need lawyers, but lawyers are expensive. It’s just that simple. Some say you get what you pay for, and some get away with establishing a long-standing relationship with an attorney and end up saving a few dollars along the way.  But the reality is such that no matter who you are in this great country of ours, you are going to need some form of legal advice somewhere along the […] Read More
By Adam D. Schmaelzle, Esq.   So you’ve been working hard for the past few years and managed to save up some money.  Maybe you’ve picked up a few valuable items along the way. A house, your grandmother’s wedding ring, an investment of some sort or maybe a shiny car.  And it’s no secret that tomorrow is promised to no one (sorry for being dramatic). But the point is this; you’ve earned it, you should be able to decide what happens to it if something ever happened to you, and unless you want the state making those decisions for you, it’s time you did some estate planning.   What is a will? A will is a legal document, often called a “Last Will and Testament”, which essentially allows you to tell the world what you want to do with your things after you passed away.  A will generally contains some legal jargon so I will do my best to explain what some of it means.  When a will is created, you will be known as the “Testator”.  The Testator will appoint a “Personal Representative” (formerly known as the Executor/Executrix).  The Personal Representative will be responsible for (1) administering the estate […] Read More
By Adam D. Schmaelzle, Esq.   As most people already know, auto insurance is a requirement to operate a motor vehicle in Massachusetts.  In 2006, Massachusetts created the Safe Driver Insurance Plan (SDIP), which is a system that was essentially designed to reward safe drivers, and punish reckless drivers.  It basically works like this: If a motorist becomes involved in a collision with another vehicle, an evaluation of the accident is made and a percentage of fault is assigned to each of the motorists.  If one person is found to be 51% or more at fault, he or she will receive a surcharge notice, AND that person’s insurance company will have to cover all of the losses to other motorists who were affected by the accident.  Conversely, if someone involved was determined to be less than 50% at fault, that individual’s insurance company will only be liable to other parties to the extent that they were not at fault. There are 19 standards of fault that are used to determine if a motorist is more than 50% at fault. (See link).   Chapter 175 § 113B of the Massachusetts General Laws sets out the rules for premium charges in connection […] Read More
By Adam D. Schmaelzle, Esq.   This article serves as a brief guide for landlords/property managers in Massachusetts who wish to evict a tenant.   Unfortunately for you, Massachusetts is a very pro tenant state. This means that although you are afforded many opportunities to give your tenants the boot, the state will not make it easy for you.   Back in the day a landlord would prevent an unruly or non-paying tenant from enjoying his or her property by changing the locks, removing the tenants belongings or shutting off the utilities.  Today, if a landlord takes this type of personal approach toward evicting, he or she might end up with a serious civil or even criminal penalty.  To avoid this, a landlord should first determine what type of tenancy the agreement is under.  There are two major types of tenancy in this state:     1. Tenancy under a lease: which means that the landlord and the tenant have come to a written agreement which will govern the terms of the tenancy; and 2. Tenancy at will: Which means that the landlord and tenant have some agreement, whether oral or written that expresses the terms of the leasing agreement.   If […] Read More
By Robert Linch   Imagine being whisked away to a magical time and land: America, 2012. Exotic, I know. The Supreme Court seems to have done just that upon granting a new challenge to the Affordable Healthcare Act (“Obamacare”) this last week. While this challenge is not based upon a constitutional argument, but upon the application of the in the law itself, it nevertheless holds the fate of the law in the balance. A short explanation of the difference between the challenges:   The essential argument in the first challenge was whether Congress has the constitutional power to force individuals to purchase health insurance i.e. the “individual mandate”. The Supreme Court, however, did not view the ACA as doing precisely that. Instead, the Court interpreted the law as saying that in fact no American was “forced” to purchase health insurance, but that they would be penalized for not doing so via income tax penalty. While this may effectively feel like the same thing, the constitutional issue hinges on the distinction. Congress does not have the power to force people to participate in the healthcare or any other market. Congress may, however, use the tax code to engineer how people operate […] Read More