Judge Merritt's Blewett dissent:* Restoring fairness and enforcing a "no-change" sentencing policy based on "finality" are incongruous. Congress intended to remedy irrationality and disproportion. Court is thwarting this effort. * Cites NACDL and NAACP amicus briefs. * "Practically all observers" now recognize the ills of the old system. Judge Cole's dissent:* Applying 100-to-1 ratio and mandatory minimums to deny 3582(c)(2) relief violates equal-protection principles. * African-Americans treated more harshly than Caucasian offenders under this regime. And 88% of the inmates that would be eligible for a reduction if mand mins not a bar are African-American. * Claim of "finality" cannot withstand even rational-basis scrutiny under equal-protection principles.* "Finality " not a bar to other 3582(c)(2) resentencings. Irrational to allow sentence to be lowered in one case and not the other. . . .* Quotes Judge Nathaniel Jones: "As judges, we should no longer remain wedded to that which experience shows is neither rational nor fair." Judge Clay's dissent:* Majority is furthering prior injustice by holding that the FSA is not retro. Individuals like Blewetts will continue to be imprisoned "in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause." * Not sure of procedural mechanism for relief. * "Although the FSA is not facially discriminatory, an interpretation of the FSA foreclosing the retroactive application of its new mandatory minimums would present an equal protection problem inasmuch as it would subject a group that is overwhelmingly predominately African American to starkly different treatment under the law. Such an interpretation can meet neither strict scrutiny nor rational basis review and should therefore be avoided by this Court."* "Adopting new mandatory minimums for the purpose of righting the racially discriminatory wrongs of the past and not extending the benefits of the new enactment to the thousands of predominately African American individuals serving disproportionate sentences under a now-rejected statue violates equal protection because Congress has recognized and reaffirmed 'its adverse effects' upon the African American community."* Congress has distinguished crack and powder offenders, "the former being overwhelmingly impoverished African Americans." This group---crack offenders---is exceedingly "abject, disparaged, powerless," a minority group that may be the most powerless. Here the democratic process "breaks down" and "traditional rational basis review is insufficient to protect the group of individuals convicted under federal crack cocaine mandatory minimums." More than 82% of this group is African-American (2005 stat). The courts should not defer "to government enactments under circumstances where an irrational classification based on the form of cocaine, which has real-world consequences in terms of sentencing disparities, tracks so closely with race." No legitimate penological/pharmacological reason for the continued incarceration of inmates who were subjected to extended sentences under the repudiated 100-to-1 ratio. In the face of a "more rigorous rational basis standard, the government can only offer finality as its legitimate interest in support of the continued application of the old mandatory minimums." Won't cut it. Judge Rogers's dissent:* Finds that "Dorsey supports the idea that, when a post-Fair Sentencing Act sentence is properly calculated under 3582(c)(2) because a guideline has been retroactively changed, the new statutory minimums should be applied as well. In other words, when a post-Fair Sentencing Act sentencing court properly has before it the calculation of a sentence, the court should use the Fair Sentencing Act minimums."* Majority's analysis is anomalous.* With Dorsey in view, not logical to rely on saving statute's default rule. * 3582(c)(2) = Congress's "background principle of retroactivity." * Illogical to provide GL relief and not statutory relief. * Cites argument re. "worse guys" who were sentenced above GLs getting break while less culpable guys (sentenced at mand min) not getting break. * "It may be that the Supreme Court Justices and litigants in Dorsey assumed that the 18-1 minimums could not be applied whenever sentencing occurred prior to the Fair Sentencing Act's passage. But assumptions are not law. Likewise the holdings of other circuits, and of our prior three-judge panels, are not binding, however persuasive they may or may not be. The plain fact is that the language of the Fair Sentencing Act does not require the anomaly that the 18-1 ratio applies retroactively to reduce guideline-driven sentences but not mandatory minimum-driven sentences, when both the guidelines and the minimums were reduced by the Fair Sentencing Act."* Somewhat distinguishes the adverse law in other circuits. (Footnote 1.)* "This analysis does not mean that the Sentencing Commission is trumping the statute. The revised statutory minimums are, after all, created by statute. The Sentencing Commission, acting properly under 28 U.S.C. 994(u), made the Fair Sentencing Act-driven guidelines retroactive. Doing so provided the statutory key to making the statutory minimum changes applicable under 3582. This is a reasonable statutory interpretation, and it is particularly reasonable to avoid an incoherent anomaly."* Does agree with majority that constitutional avoidance doesn't apply. Judge White's dissent:* She concurs in Judge Rogers's dissent and writes "separately to express the view that the fair implication of the Fair Sentencing Act is that Congress intended that the Sentencing Commission determine whether and to what extent the newly enacted increased base-cocaine quantity thresholds for triggering mandatory minimum sentences would be applicable to defendants already under sentence. Further, allowing application of the new 18:1 ratio to all offenders already under sentence except those whose sentences under the new ratio would clash with the old 100:1 ratio's mandatory minimum sentences bears no rational relation to any identified Congressional purpose."* "It is the majority that turns the Fair Sentencing Act on its head by its rigid adherence to the general savings statute in the face of the Commission's clear authority to establish the new guidelines based on the greater mandatory-minimum thresholds and to decide whether and to what extent the new thresholds should be applied to prisoners under sentence."* She addresses several arguments regarding the Commission's powers. * "The Blewetts's claim does not rest on an asserted constitutional right to the retroactive application of the Fair Sentencing Act. It rests on the irrationality of allowing its application to all sentences that have become final and are affected by the new guidelines except sentences based on the very mandatory minimum levels that the Fair Sentencing Act amended. Congress did not intend this irrationality, and that is why Judge Rogers is correct. Nevertheless, if Congress is understood to have the intent ascribed to it by the majority, that intent is irrational and violates the Equal Protection Clause absent rational justification other than finality."
Blewett Dissents
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Texas State Fire Marshall is Commended for Transforming State's Law Enforcement
In a Dallas News opinion piece, Cory Session, policy director at the Innocence Project of Texas, declares: State Fire Marshall Chris Connealy should be named "Dallas Morning News Texan of the Year for 2013." He says that Connealy has taught him "what is good in Texas law enforcement." Session is the brother of Texas exoneree Tim Cole, who was wrongfully convicted of rape in 1988 and served 13 years of a 25-year sentence before he died in prison in 1999. Session writes: "I've learned how easy it is for most officials to cover up their mistakes and never admit to doing anything wrong." According to Session, he's sees a sea change with Connealy-the state's law enforcement is beginning to evolve. "When Connealy, a 36-year firefighter, took over the job," says Session, the agency "was seen as a national joke. Within a few weeks, Connealy started turning everything around." Connealy resumed the position of state fire marshal just a year ago, when the state was receiving national attention for the execution of Cameron Todd Willingham, whose murder conviction had been based on expert testimony and evidence that was later discredited by the Texas Forensic Science Commission. Within the past year, Connealy has begun to rebuild the reputation of his office. According to Session, "As Dr. John DeHaan, one of the most prominent fire scientists in the world . . . put it recently, Connealy's efforts are turning Texas into a model for the entire country." Connealy has made important allies during his short tenure. Earlier this year, he teamed up with the Innocence Project of Texas to launch a review of more than 1,000 arson convictions. That review led to the creation of a scientific advisory panel that is made up of the nation's top arson experts. The panel has completed five reviews. Of those cases, three were found to contain flawed science. Session commends Connealy not just for the work he's done with the Innocence Project of Texas, but for the way he has "energized his agency from top to bottom." "In the space of a little over a year, he has made his agency into what it should have been all along," writes Session, "a dynamic force of dedicated men and women seeking the truth and keeping the rest of Texas safe." Read the full story. Learn more about Tim Cole.
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Refusing a Breath Test and Drivers License Suspension in Michigan
In Michigan, laws regarding drunk driving are extremely strict. If arrested for DUI and you refuse a chemical test, your driver's license may be suspended for one year. Under Michigan's Implied Consent Law, MCL 257.625c, any individual who operates a vehicle gives his or her consent to submit to chemical testing if arrested on suspicion of driving under the influence. This applies to anyone who operates a vehicle in any location open to the general public, including not only roadways but parking lots and other areas. You agreed to this when you applied for your driver's license, although you likely were not aware of it.
A one-year suspension applies to first-time offenders; if you are arrested for DUI a second time within seven years of the first, your driver's license will be suspended for two years. Suspension of your license is separate from the criminal offense of driving under the influence, and is administrative in nature. Your driver's license will be submitted immediately after refusing a breath test administered at the police station (this does not apply to a roadside or preliminary breath test).
If your driver's license was suspended after refusing to take a breath test, it may be possible to challenge the suspension in court according to the circumstances of your case. For example, the traffic stop may have been unlawful; police must have reasonable suspicion to pull you over. If you have no prior drunk driving conviction or arrest, it may be easier to have your driving privileges restored. Ultimately, it is highly recommended you discuss your situation with an experienced Michigan driver's license reinstatement attorney, who can review your case and help determine whether it may be possible to have your license restored.
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UK - Ex-deputy head (John Bryan Thomas) had indecent child images
John Bryan ThomasOriginal Article
12/06/2013
A primary school deputy head-teacher who became addicted to pornography when he retired was caught downloading hundreds of indecent images and videos of children.
John Bryan Thomas, 61 - who described himself as something of a “Jekyll and Hyde” character - had been told the offences were serious and that he could not complain if he went to prison immediately.
But he was spared jail yesterday when a crown court judge he would be “a prime...
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Illinois Concealed Carry License Applications open 1/5/2014
Starting January 5, 2014, the Illinois State Police will be issuing applications for Illinois residents to obtain a concealed carry gun license. These licenses will be issued by the State Police. If you want to apply for a concealed carry license, you must have a valid firearm owner’s identification card (FOID), must be at least […]
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ME - Maine Public Safety reviewing procedures after sex offender falls through cracks (Video)
Video Description:
Maine Public Safety officials blame a clerical error for the state's failure to notify Berwick Police about a convicted sex offender, who failed to re-register. WMTW News 8's Paul Merrill reports.
© 2006-2013 | Sex Offender Issues (Facebook)
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California Law Enforcement Groups Considering Ballot Initiative
The San Diego Union-Tribune reports, "Coalition talks of backing death penalty reforms," by Teri Figueroa. A coalition of members of local law enforcement agencies met Thursday to discuss backing reforms to California’s death penalty process, from streamlining appeals to finding...
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Friday Open Thread
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CANADA - Top court to weigh whether Ontario’s sex-offender registry should be public
Original Article
12/04/2013
By SEAN FINE
The Supreme Court will hear arguments on Thursday over whether to allow the public to view information in an Ontario government registry of sex offenders, the latest development in a four-year battle that pits the right to know against fears of vigilantism.
A journalist, Patrick Cain, is seeking information about the number of registered sex offenders who live in particular communities. Ontario is strongly opposed, arguing that vigilantes will hunt...
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What is the Difference Between a ” Personal Injury,” and “Crime” Charge?
In modern terms, a “personal injury,” is most commonly used to refer to a tort action claiming that a plaintiff has endured an injury caused by the negligence of another, called the defendant. In the opposing side, a “crime,” is something that entirely different that arises when a person has violated either a state or […]The post What is the Difference Between a ” Personal Injury,” and “Crime” Charge? appeared first on .
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DC - Cop (Marc Washington) Arrested For Making Child Porn
Marc WashingtonOriginal Article
12/03/2013
A D.C. cop has been arrested and charged with making child pornography.
Charging documents (PDF) obtained by WUSA9 allege that Metropolitan Police Department Officer Marc Washington took naked photographs of a 15-year-old girl at the beginning of December.
The girl had been reported missing by her mother a few days earlier, according to the charging documents. Washington was the officer to take the mother's report at her apartment, and also...
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California Ships Prisoners Out of State to "Reduce" Its Prison Population
California Ships Prisoners Out of State to "Reduce" Its Prison Population
Danielle Rigney's son was arrested and sentenced to six years in prison when he was 19. He spent two years imprisoned in California. Each weekend, family members or friends drove four hours to visit him. "He got to see his sisters growing up; he got to keep up with their lives," she told Truthout. "We constantly talked
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Sex Offender Reintegration (Pod Cast)
Original Article
12/06/2013
NOTE: Audio disabled - Your browser cannot handle HTML5.
This week, we'll discuss reintegration. Once deemed a "sex offender" or worse, a "sexually violent predator," how can you start over as a member of society? Most go through this process alone. But in recent years, programs.have been popping up all over the world & in several U.S. states.
We'll discuss the difficult process of reingrating without help. See this experience through the eyes of Derek...
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St. Johns County teen arrested for bringing a gun to school
A student at St. Augustine High School was arrested last month for allegedly bringing a gun into school and now faces criminal charges as well as significant discipline from the St. Johns County School Board. A concerned student told teachers the teen might have a gun and the staff alerted a deputy assigned to the school, according to a report in the Florida Times-Union. When approached, the student said he did have a gun in his bag, which was underneath his desk, the newspaper reported. The accused student never displayed the gun, nor did he threaten any students, teachers or other staff with the weapon, the newspaper reported.
In Florida, the state makes the guidelines for facing criminal charges in all cases including this St. Johns County Gun Crimes Case but, in the case of guns in schools, also has a law that determines the length of an expulsion. Any student bringing a firearm into a school or school event is automatically expelled from school for one year. Now, the school district has the discretion to place the student in an alternative school or a disciplinary program, but the student cannot return to his or her school for at least one full year. The term is for a full calendar year, not just a school year, which is the length of time many think of when it comes to school discipline.
On the criminal side of this St. Johns County Juvenile Crimes case, the third-degree felony charge has a maximum penalty of five years in prison. The age and criminal history of the student were not available in the newspaper report, but they will both play a significant role in the punishment the student receives in this St. Johns County Gun Crimes case. In some St. Johns County Juvenile Crimes Case, a teen will be charged as an adult, and that is more likely in crimes when a gun is involved. In other St. Johns County Juvenile Crimes, the case will stay in the juvenile court system. When it does, there are varying degrees of incarceration for juveniles, from house arrest to minimum security detention facilities to what amounts to a juvenile version of the state prison. The point of juvenile sanctions should be to play a role in getting the student or teen on the right track. The school expulsion makes sense for the safety of the students and teachers at the school, especially given the rash of school shootings over the past several years. Our St. Johns County Juvenile Crimes Attorney will work to help negotiate a disposition that will allow the teen to continue some form of education and an opportunity to get on a track to graduate.
If you or a loved one needs a criminal defense attorney in Jacksonville or the surrounding area, call The Mussallem Law Firm at (904) 365-5200 for a FREE CONSULTATION. Our St. Johns County Juvenile Crimes Attorney, Victoria "Tori" Mussallem, is available 24 hours a day, 7 days a week.
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Involuntary Confession Erroneously Admitted at Conspiracy Trial Warrants New Trials for All Three Co-Defendants
UNITED STATES V. TAYLOR, ET. AL., NOS. 11-2201(L), 11-2426(CON), 11-2639(CON) (2D CIR. DEC. 4, 2013) (KEARSE, JACOBS, AND CARNEY), AVAILABLE HEREThis published decision vacated three defendants' convictions for conspiracy to commit Hobbs Act robbery of a Manhattan pharmacy in 2008 and brandishing of a firearm. The Court remanded for new trials after determining that interrogating agents took undue advantage of one defendant's diminished mental state and overbore his will in obtaining what was held to be an involuntary confession. The Court further held that admitting the tainted confession at trial, even with a limiting instruction, was not harmless beyond a reasonable doubt as to all three defendants.According to the opinion, Vasquez drove Taylor, Rosario and a woman named Luana Miller to rob a pharmacy in Manhattan on Christmas Eve in 2008. With Miller already inside posing as a customer after hours, Rosario entered the pharmacy brandishing a gun and announced the robbery. Vasquez demanded OxyContin and along with Miller took controlled substances, cash and subway cards. All the while, Taylor remained a lookout at the front door with Vasquez waiting in the getaway car. In January 2009, Miller was arrested on outstanding warrants. In hopes of benefitting, she cooperated regarding the pharmacy robbery. On April 9, 2009, the FBI and NYPD arrested Taylor at his apartment around 6:00 a.m. Taylor claimed he ingested a bottle-full of Xanax pills at that time as part of a suicide attempt. His interrogation began around 9:30 a.m. with Agents Burch and Tomas. Taylor signed a Miranda form and confessed. He provided a second confession to Tomas the morning of April 10 prior to arraignment.At an evidentiary hearing on motions to suppress Taylor's statements, Burch testified that Taylor was coherent at times during the two to three hour interrogation on April 9, but also described how Taylor nodded off, how Taylor's body was shutting down, and how Taylor had to be "refocused" by agents. Post-interrogation, agents took Taylor to the hospital rather than the jail. According to Tomas, they questioned whether the Marshals Service would assume custody of someone who "might be off." Taylor slept the rest of the day at the hospital before going to the MCC that evening. Witness testimony revealed that MCC psychologists examined Taylor the morning of April 10, at which time he exhibited a thought disorder, drooled, was vague, stared blankly and lacked spontaneity with his thoughts. With an impaired thought process, Taylor could not elaborate when asked questions. Taylor told doctors he tried to kill himself by ingesting Xanax. Later that morning, Taylor proceeded to arraignment. Tomas testified that while awaiting a pretrial services officer, Taylor told him that he wanted to clear up issues about the charges. Tomas re-delivered Miranda warnings and Taylor confessed again. The pretrial services officer who then met with Taylor testified that Taylor appeared sleepy, had to be woken up for the interviewed, fell asleep several times during questions, but was awake and coherent at times.The Court quickly held that Taylor's reading, acknowledging and signing an advice of rights form before making statements was a knowing and voluntary waiver of his Miranda rights. The evidence indicated that Taylor was lucid and knew what was going on at this time. The Court held, however, that Taylor's statements were involuntary under the totality of the circumstances. Taylor could not summon the will to make a knowing and voluntary decision due to his Xanax ingestion. Taylor's body language and his falling asleep during the interrogation, as well as the agents waking him and "coaxing him" to answer questions and focus, all supported such a conclusion. Moreover, agents knew that Taylor was in and out of consciousness during the April 9 questioning and was in a trance or stupor when awake. Their persistent interrogation "took undue advantage of Taylor's diminished mental state."The Court also held that the April 10 confession was involuntary under the totality of the circumstances, i.e., the effects of the Xanax, and that the taint from the first confession carried over to the second confession despite renewed Miranda warnings. Less than a day elapsed between the two confessions and Taylor was hospitalized during that time. Despite interrogation occurring at different locations, Tomas was present at both. Finally, agents, psychologists and the pretrial services officer observed Taylor either falling asleep or being mentally impaired that day.The Court concluded that admitting Taylor’s involuntary statements at trial was not harmless beyond a reasonable doubt. First, the confession was critical to the government's case. Apart from the confession, the evidence against Taylor consisted of Miller's testimony and GPS telephone data. Miller's criminal history and the benefit she sought by cooperating subjected her testimony to attack. Though GPS evidence may have corroborated Miller's version of their whereabouts, no other witness or evidence linked Taylor to the robbery. Second, the prosecution emphasized Taylor's confessions throughout trial. Third, the confessions were important to the case because they corroborated Miller’s testimony. Fourth, the confessions were not cumulative to Miller's testimony because a confession has a greater impact at trial than witness testimony.Despite the district court’s limiting instruction regarding the use of Taylor’s statements against Taylor and not his co-defendants, the Court ultimately held that the erroneous admission of Taylor's confessions was not harmless error in Rosario and Vasquez’s trials. Though the Court normally assumes that jurors follow limiting instructions, it explained that "a confession by one co-defendant in a joint trial poses substantial risk for the other co-defendants notwithstanding such an instruction."Because the government’s case relied "chiefly" on Taylor’s statements and "drew its strength" from those statements against Rosario and Vasquez respectfully, the confession was critical. Due to the remaining evidence being impeachable or inconclusive as to Rosario and Vasquez’s involvement in the robbery, the confession’s admission at their trial was not harmless error.CONGRATULATIONS TO FDNY’S COLLEEN CASSIDY ON HER VICTORY FOR HER CLIENT MR. VASQUEZ!
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MIAMI GARDENS COPS GET A PASS
The Miami Dade State Attorneys Office (Motto: "nolle prosse unless you're poor or black") has declined to prosecute any officers from the Miami Gardens Police Department for their activities in harassing a Quikstop convenience stores customers and employees. There is at least one federal civil rights lawsuit already filed against Miami Gardens. But the SAO never let videotaped evidence stand in the way of giving a police officer a pass. In this case, it's most of the Miami Gardens Department. Here's the CBS channel 4 story. Site Feed
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What is Considered to be a “Personal Injury.”
According to various sources, including statutes and case law, a personal injury is simply a legal term that is used for any injury to a person’s body or mind (including emotions.) Injury to property however is considered to be something entirely different and is a different type of “damage” that is typically covered by the […]The post What is Considered to be a “Personal Injury.” appeared first on .
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Tis the Session for Giving & Getting Back
Bronx Community Solutions first Community Impact zone was in the Summer 2008 at Timpson and St. John Avenue near the Bruckner Blvd. Community Impact is a unique type of community service project that provides a faster response to graffiti and sanitation issues. This section of the Bronx was plagued with many issues; abandoned cars, illegal dumping, prostitution, drugs and graffiti. In collaboration with the 41st Precinct and several landlords in the neighborhood, BCS began cleaning and maintaining this area on a consistent base. On November 7, 2013 Mike Stanton, manager of Hop Energy LLC., a fuel company located on 595 Timpson Blvd, met with Ramon Semorile, Crew Supervisor of the Graffiti Program, to share his gratitude for the work BCS has put into the community, especially his business which has being graffiti tagged a few times over the year. Ramon explained Bronx Community Solutions works in the community and these services are free of charge. He also explained that this is a community impact area and a waiver was signed by the previous landlords granting permission to remove the graffiti on several walls. Community Impact is measured by its impact both in community’s perception and visual improvements and we feel that one of the huge indicators of this success is when Mr. Stanton wanted to show his gratitude by donating supplies to our program. “Wedonate small amounts of supplies about two to three times a year to at least four or 5 companies. We appreciate. Bronx Community Solutions and the work they provide. Our company will continue the relationship with Bronx Community Solutions”. In the 8 years that Bronx Community Solutions has provided community service assistance to the many businesses, neighborhoods and organizations in the Bronx, this is the first time an agency has giving back to us. It is truly appreciated. Happy Holidays.
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The “CSI Effect” in Maryland Criminal Cases
People in Maryland and elsewhere are often curious about how realistic television shows involving lawyers are. How television affects jurors and trials, however, is less often explored. One phenomenon in the latter category, the “CSI effect” has led to some interesting scholarship and legal rulings over the past decade. The “CSI effect” allegedly occurs in […]
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Kaiser v Motor Vehicle Accident Indemnification Corporation
Kaiser v Motor Vehicle Accident Indemnification Corporation
Court Discusses Delay in Filing Notice of Claim to the Motor Vehicle Accident Indemnification Corporation
The petitioner, who was the owner and operator of motor vehicle that was involved in a motor vehicle collision after the other driver involved, was driving while intoxicated DWI on October 2, 1961. The petitioner later commenced a negligence claim against the intoxicated driver; however, his insurance company never appeared in the action. On March 18, 1962 the petitioner’s Queen County Personal Injury Lawyer was given a cancellation notice by the driver evidencing that his insurance policy was cancelled seven weeks after the accident on November 21, 1961. After the identity of the insurance carrier was revealed, the petitioner’s attorney was informed that by the driver’s insurance company that the company would disclaim liability as it was not liable at the time of the accident. On March 30, 1962 a notice of disclaimer was then sent to the petitioner’s criminal attorney which stated that the policy was cancelled prior to the accident. However, the intoxicated driver of the motor vehicle told the investigating police officer at the scene of the accident that he was covered by liability insurance. The petitioner was also told by the intoxicated driver that he was insured. Further, when the driver along with the petitioner appeared in court, his New York Personal Injury Attorney informed the court that the driver was covered by liability insurance.
On March, 31 1962 a formal notice of the claim was filed to the accident indemnification corporation who were the respondents in this claim. The purpose of the indemnification corporation was to provide coverage to claimants who were eligible. The petitioner’s right to receive compensation from the indemnification corporation came from liability insurance purchased which contained an uninsured motorist clause. Under the New York Insurance Law the policy which the petitioner purchased, insured him for any sums he might be entitled for personal injuries due to the negligence of an uninsured operator or owner. As a result, the indemnification corporation was compelled to arbitrate the claim. The respondents however, denied the claim because of the unreasonable delay to file the notice of the claim. The petitioner then sought the relief of the court. A gun was not found.
The petitioner had the burden in proving that the delay was reasonable. Where the petitioner offered an excuse which showed that delay in giving the notice was reasonable, it was triable whether the notice was timely. There was a reasonable excuse for the delay in notifying the indemnification corporation several months after the accident. The petitioner received the notice of disclaimer of liability by the other driver's insurer seven months after the accident. It was believed for several months after the accident that the intoxicated driver was covered by liability insurance. Also, the notice to the indemnification corporation was timely as it was immediately filed after the insurance company issued the notice of disclaimer.
The court was of the belief that if the petitioner were to be denied of his legal entitlement to recover damages from the driver and owner of the insure motor vehicle then he would be denied coverage. The petitioner could not be denied the right to recover damages due to the fact that the driver was insured at the time of the accident, as that would result in the plain and obvious meaning of the statute being ignored. Under the uninsured motorist clause, the respondent can only be compelled to arbitrate a claim where the claim was filed with 90 days. Where there was a delay of more than 90 days, the question of reasonableness in notifying the indemnification corporation was to be determined by an official referee because the petitioner received the notice of disclaimer and presented the claim to the indemnification corporation one day later. There was no bail reduction.
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More Pages to Explore .....
