Legalese

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Legalese

Postby MFH » Sat Feb 20, 1999 4:36 pm

Mr. Castanet:

In the course of our discussion on Insurance on the Business/Marketing Forum Mr Van Canna used the term tort-feasor. Could you explain the meaning of this please?

Thanks,

MFH
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Postby Robb in Sacramento » Sat Feb 20, 1999 7:01 pm

MFH:

I hope I don't step on Mr. Castanet's toes by responding to your query, but since I have a copy of Black's Law Dictionary handy (and I find it strange you don't have your own copy), a tort-feasor is a "wrong-doer."

For whatever reason, most of us tend to think of the law and legal consequences in terms of criminal law. But, for business owners, drivers, home owners, workers, employers, etc., there is greater likelihood that contact with the law will come in the form of a civil action. That is, some one will take you to court. In many circumstances, they are taking you to court for having committed a tort (a wrong).

While there are many kinds of torts, they generally fall within three categories (though thanks to lawmakers and creative attorneys, there are many actions for wrongs that fall outside these categories)

1. An intentional tort. This category includes assault, battery, (assualt is putting someone in fear of harmful or offensive contact, battery is making the contact), defamation, intentional infliction of emotional distress, etc. A classic example of this tort would be a funeral home mishandling the remains of a loved one. The classic remedy at law was a suit for intentional infliciton of emotional distress.

2. Negligence. OK, now without putting you through the torture and perhaps the tort of inflicting emotional distress, simply put, negligence means you have failed to perform a duty owed to another, and the other person has suffered actual harm as a result of your failure. So, for example, you have a duty to drive safely. When you don't, and it causes harm to another, you have "breached" your duty, and the other person, the person you harmed, can bring an action in tort against you. In this case, you would be the tort-feasor.

3. Strict liability. Modernly, this tort is used mainly in the product liability area. A manufacturer puts a dangerous or defective product in the marketplace. Say for example a manufacturer of a pain reliever puts a tainted or poisoned product into the market, this is where strict liability would come into play.

Sorry if I put you to sleep. If you were like me, you probably thought a tort was one of those neat cookies with the fruit on it, and a tort-feasor was the guy who set the price you paid for 'em. Oh well.

Peace.
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Postby gmattson » Sat Feb 20, 1999 7:30 pm

Robb: Pleasure to read your easy to follow explanations. Thanks.

Would like to hear more regarding instructor liability and things we should be aware of when accepting new students, teaching them and dealing with Uechi techniques involving contact. . .

My check is in the mail!!


------------------
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Postby Robb in Sacramento » Sat Feb 20, 1999 9:50 pm

Mattson Sensei:

Thanks for the compliment...BUT, first the thing with DEWAR'S and now inviting an attorney to talk more!!! Clearly J.D. has his work cut out.

But since you asked, how about a tasty discussion of the Doctrine of Worthier Title or the Rule Against Perpetuities??? OK, subinfeudation then??? You see, once upon a time....

Peace
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Postby RACastanet » Sun Feb 21, 1999 12:20 am

Robb: Thanks for replying. I'm an engineer. I had no clue what that term meant.

Please skip up to the business section and look at my latest insurance situation. How would you define 'professional'?

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Postby Robb in Sacramento » Sun Feb 21, 1999 3:16 am

Mr. Castanet:

I checked out your post and discussion on insurance. To say insurance law varies from state to state is like saying Texans and Californians speak a bit differently. I mean whoa dude y'all, but while some states are fairly loose with the insurance industry, others, such as California, have elected insurance commissioners and enough regulation to keep a small army of attorneys employed.

As to how would I define professional, I believe Mr. Canna is over inclusive, having attempted to elevate those in the medical vocation to status of those practicing the legal profession.

What is a profession? Who knows. I have followed trucks advertising for drivers to join the company's team of professionals (that would be a professional truck driver, a profession that allows one to put the hammer down, as opposed to being a professional contractor, which often requires one to pick the hammer up). If one is paid for a sport, are they not termed professional athletes? In California, we license professionals from attorneys, doctors, nurses and engineers, to barbers, cosmotologists and message therapists.(Also insurance agents, realtors, appraisers, accountants, and day care operators.) As they all have a state license, I suppose one could view them all as professionals.

Then, of course, there is the world's oldest profession, again licensed in Nevada, with no doubt its own problems in getting both liability and malpractice insurance.

But, I digress. Whether you believe being and black belt and teaching martial arts makes you a professional isn't really the issue. In your case, it's what your insurance carrier thinks. And, while Mr. Canna is right with regard to seeking declaratory relief to resolve the issue, such relief would probably have little long term effect on your situation. (Oh, and declaratory relief is one of those oddities of the law, it is just what it sounds like. Basically, you go before a judge and present a contract and ask the judge to make a declaration as what rights you have under the contract. The objective of declaratory relief is prevent breaches of agreements before the breach occurs.)

As to insurance, many sports organizations have undertaken getting insurance for their members. How they get the insurance program underwritten is a mystery to me, but I suppose an ambitious group of Uechi instructors could form an association for the purpose of providing an insurance pool, just like many gymnastics schools have had to do. If it is any help, when I taught Uechi for money, I checked with several other karate schools and with gymnastic, and exercise schools in order to find a broker that could link me up with an insurance provider. With the growth in such things and cardio karate, I gotta believe there is some insurance company out there making a killing off martial arts related exercise and a broker in your area willing to take his or her cut of your premium in order to put you in touch with the insurance company.

Good luck!

Peace
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Postby RACastanet » Sun Feb 21, 1999 3:31 pm

Thanks Robb. It appears Markel is a sound choice to further investigate. And, please call me Rich.
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Postby MFH » Mon Feb 22, 1999 3:26 am

As to how would I define professional, I believe Mr. Canna is over inclusive, having attempted to elevate those in the medical vocation to status of those practicing the legal profession.


Ummmm, ummm. Git out da gloves!

This is good!

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Legalese

Postby MFH » Mon Feb 22, 1999 3:30 am

Excerpted from Robb in Sacramento's 10:16 pm posting:

As to how would I define professional, I believe Mr. Canna is over inclusive, having attempted to elevate those in the medical vocation to status of those practicing the legal profession.

And my (MFH) comment:

Ummmm, ummm. Git out da gloves!

This is good!

MFH
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