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EEOC Issues Resolution

The Equal Employment Opportunity Commission (EEOC) issued a Resolution mourning the deaths of George Floyd, Breonna Taylor and Ahmaud Arbery last week. In the resolution, the EEOC committed the agency to redouble its efforts to address institutionalized racism, advance justice, and foster equal opportunity in the workplace.

The EEOC advances opportunity in the workplace by enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

The anti-discrimination laws provide a limited amount of time to file a charge of discrimination. In general, a person needs to file a charge within 180 calendar days from the day the discrimination took place. The 180-calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. The rules are slightly different for age discrimination charges. For age discrimination, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law. The deadline is not extended if only a local law prohibits age discrimination.

If you have questions related to employment discrimination, harassment, or retaliation, please feel free to contact Goodin Abernathy.

What is Fraud?

What is Fraud?

Most everyone is familiar with the word fraud. They’ve heard it used to describe a person that is not what they appear to be, or they have heard it used to describe an act of deceit. However, this common and acceptable use of the word fraud, in every-day conversation, can lead to misunderstandings as to what amounts to fraud under the law when an interaction with another person or business does not end in a desirable manner.

For example, most people have bought an item only to have it not work the way they expected, or they have hired someone to do a job and have been unhappy with the result. Unsatisfying as these types of experiences might be, it does not always mean a fraud has occurred within the meaning of Indiana law.

To prove actual fraud, within an Indiana legal context, there must be a:

  • (i) material misrepresentation of past or existing facts by the party to be charged
  • (ii) which was false
  • (iii) which was made with knowledge or reckless ignorance of the falseness
  • (iv) was relied upon by the complaining party and
  • (v) proximately caused the complaining party injury.

It is this first portion (i) that can sometimes be confusing because fraud cannot be based on unfulfilled promises or on statements concerning future events.

For example, if a person is given $20 in exchange for a promise to mow the lawn, and then fails to mow the lawn, the person has breached an oral contract to mow the lawn, but has not committed fraud because they only failed to fulfill a promise. On the other hand, if that same person said they had been hired by ten of the neighbors, they were incorporated and insured, and possessed industrial lawn mower equipment, a different result is likely if none of the statements were true. Indeed, if none of the neighbors had ever hired this person, there was no insurance or corporation, and there was no industrial equipment, the person likely made the material misrepresentations of past or existing facts that are needed to prove fraud.

From the above example, it can be seen that cases involving allegations of fraud are almost always unique to the specific facts and circumstances of the individual matter, and sometimes it can be challenging to know if you have been a victim of fraud or if you have been falsely accused of committing fraud.

The attorneys at Goodin Abernathy can help sort through these types of issues and are available for a free consultation if you have questions about fraud.

Business Interruption During COVID-19 & Commercial Insurance

Business Interruption During COVID-19 & Commercial Insurance

The economic impact on small businesses due to COVID-19 is undeniable. Further, the uncertainty surrounding the length of the shut-down and the availability of funds for relief loans has left many business owners wondering whether the business interruption coverage in their commercial general liability policy will provide coverage to offset financial losses incurred. Politicians in Washington have asked insurers to justify the refusal to pay out claims, and already class action lawsuits are being filed around the country against insurance companies.

When assessing whether business interruption coverage in a commercial general liability insurance policy applies to economic losses caused by COVID-19, the answer is—it depends on the particular policy. Generally speaking, however, most business interruption clauses require the loss of business income to be caused by direct physical loss or damage to the property that prevents the business from operating. Although it appears the COVID-19 virus can survive on surfaces for up to five (5) days, it is doubtful that this phenomenon would qualify as direct physical loss or damage to the property or be of sufficient duration to trigger most insurance clauses. In addition, many commercial general liability insurance policies exclude coverage for losses caused by viral contamination.
On the contrary, it is possible that the specific wording and coverages in any particular policy may provide coverage. For example, businesses operating in the food service industry or the hospitality industry may have specific clauses in their respective insurance policies that relate to losses caused by viruses or alternative business interruption losses like event cancellations. Consequently, all business owners who have sustained financial losses due to COVID-19 are encouraged to examine their insurance contracts.

If you need legal assistance in these matters, please contact us for a free initial legal consultation.

The Dram Shop Act

The Dram Shop Act

In lieu of the recent case against Tiger Woods, we thought it would be beneficial to explain the Dram Shop Act. Who is responsible when an accident or injury occurs because of someone being intoxicated?

Federal statistics & data show deaths caused by drunk drivers have dropped significantly in last 30 years, however, the phenomenon still occurs far too frequently.

In Indiana, when a drunk driver injures or kills a person, the bar or person that served the driver might share responsibility for the event. Under what is known as the Dram Shop Act, giving alcohol to a visibly drunk person can cause civil liability.

Now, the bar or person must possess or control the beverage and actually serve the alcohol. In addition, the person serving the alcohol must possess actual knowledge that the recipient was drunk at the time the beverage was provided. So, many times it is important to determine how much alcohol the person drank, over a certain time period as well as whether the person showed signs of intoxication like slurred speech or strange behavior.

If you have questions, an attorney can help sort through the issues to determine if these factors in the Dram Shop Act apply.

Please feel free to contact Goodin Abernathy.

Injuries at the County Jail

Injuries at the County Jail

Individuals are generally housed at a County Jail while they wait for their trial or when they are waiting to be sent to a Department of Correction facility after being sentenced.

While at the County Jail, Indiana law dictates the County Sheriff is the one charged with a duty to administer the jail in a manner which preserves the safety of the inmates. Indeed, the Sheriff must exercise reasonable care to preserve the life, health, and safety of those in custody.

Frequently, the County Sheriff will delegate duties to jail employees to run the jail, and sometimes the County Sheriff will delegate the responsibility for providing medical attention to inmates to a doctor or an outside health care provider. However, even when duties are delegated, the Sheriff is responsible for the acts of jail employees, if the employees, acting in the course and scope of their employment, commit negligence. Similarly, the Sheriff is responsible for the acts of heath care providers. Therefore, when an inmate at a County Jail commits suicide; is sexually assaulted by a jail employee; or is deprived reasonable medical care; the Sheriff, in an official capacity, may be liable for damages.

Any individual who desires to make a claim against a County Sheriff, in their official capacity, must file what is known as a Notice of Tort Claim. This Notice must be filed within 180 days after the loss or event and must contain specific required information or the claim will be barred. Consequently, it is important that individuals who have suffered an injury or event at a County Jail, as a result of the actions of a jail employee or medical care provider, consult with an experienced attorney.