Idaho Law Blog

Can a Murderer Receive Property from the Person they Kill?

Published on: January 7, 2017 | by Racine Olson

Is an estate planning attorney I enjoy watching television murder mysteries. It’s like a game of Clue. I am often surprised however by the number of times I am asked the question can a person who commits a murder receive property under the will of the person that they have killed? Usually the person is smiling and laughing when they asked the question so I know that they aren’t scheming or making plans, rather they just want to know out of curiosity.

Idaho actually does have a specific law on this issue. It is found at Idaho Code § 15-2-803. Attorneys in Idaho commonly called this the “Slayer” statute. Essentially what this statute says in part is:

Fog & Freezing Fog Develops in Parts of the Treasure Valley

Published on: January 7, 2017 | by Racine Olson

Several accidents were reported during the morning commute on I-84 Thursday morning, December 22^nd. As dense fog and freezing fog rolled into parts of the Treasure Valley, motorists were instructed by ISP, ITD and local police departments to be sure to slow down. Visibility was reduced in certain areas to a quarter of a mile.

An accident occurred on eastbound I-84 at milepost 36 near the Franklin exit in Nampa shortly before 6:30 a.m. which blocked the two left lanes of travel. ISP continues to investigate the cause of the crash; however, it is likely that weather and road conditions were contributing factors.

Fog can be quite dangerous, especially when temperatures dip below freezing. Fog can freeze instantly on exposed surfaces forming black ice on roadways catching drivers off-guard. Drivers should reduce their speeds to give themselves time to react if hazards appear. Never use your high beams which cause a glare but rather turn on your low beams so that other drivers can see your vehicle. Stay focused on the road and follow the lines to ensure that you remain in the proper lane. Remember to leave plenty of distance between your vehicle and those in front of you to account for sudden stops, hazards and/or changing traffic patterns.

Negligent Hiring and Negligent Supervision

Published on: January 6, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

In Idaho, employers have a duty to protect others from the foreseeable harmful conduct of its employees. The two types of cases that are usually brought against an employer when an employee engages in intentionally harmful conduct to others are negligent hiring and negligent supervision.

In the negligent hiring area Idaho has few cases. One worth discussing is Doe v. Garcia, et al., 131 Idaho 578 (1998). In Doe, the employee worked for a hospital as a respiratory therapist. However, the hospital, in hiring the employee, failed to request the employee’s personnel file from his previous employer. In failing to obtain this personnel file, the hospital failed to learn that the employee had been fired from his previous job because he had sexually molested a patient at his previous job. While working for the hospital, the employee admitted to a staff member the reason for his previous termination. However, the hospital took no further action. While working, the employee treated Doe, who was a minor and developed a friendship with him. The employee was later discharged by the hospital for encouraging under-aged employees to consume alcohol. After his termination, the employee sexually molested Doe. Doe filed suit against the hospital alleging that it was negligent in hiring the employee. The district court ruled in favor of the hospital. Doe appealed. The Idaho Supreme Court reversed and remanded the matter to the district court for further proceedings stating that a genuine issue existed as to whether the hospital was liable and whether it should have foreseen that the employee would use his position within the hospital that would lead to the molestation of Doe.

The Statute of Limitations for a Non-Judicial Foreclosure

Published on: January 5, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

One of the first things to consider when preparing to foreclose non-judicially on real estate is whether you have a legal right to do so. If you have waited too long to exercise your right to foreclose, you may have lost your right. When it comes to a non-judicial foreclosure the law allows a foreclosure to begin within five years of a default in the payment on the obligation secured by the Deed of Trust mortgage.

Non-judicial foreclosures are controlled by Idaho statutes, namely, Idaho Code §§ 45-1502 et seq. When it comes to “timeliness” or an applicable statute of limitations, Idaho Code § 45-1515 applies. 　This statute states:

Idaho Workers’ Compensation Claimants Can Usually Choose Their Doctor

Published on: January 5, 2017 | by Racine Olson

By Fred J. Lewis

We, as Americans, love to choose the doctor who will treat us for medical problems. This streak of independence has killed most universal health care or single-payer plans that have been advanced by various politicians over the last 50-60 years. Idaho Code Section 72-432 (7) allows employers to have the first crack at selecting a physician for injured workers in Idaho. Some aggressive insurance adjusters are pushing injured workers toward insurance-oriented doctors who will lean toward telling the Idaho Workers’ Compensation insurance company what they want to hear. The good news is that very few doctors in Idaho will intentionally try to hurt their patients’ Idaho Workers’ Compensation claims. If you are an injured worker in Idaho, the referral made by the insurance adjuster is usually to an urgent care or “doc in the box” physician. They will typically do the initial treatment and attempt to help you with your Idaho Workers’ compensation claim. They may even order diagnostic tests like MRI scans or CT scans, but if these initial diagnostic tests indicate you have a more serious injury, these urgent care physicians are typically helpful in referring you on to specialists who can do surgeries or other types of curative treatment. This is the point in time when you will need an experienced Idaho Workers’ Compensation attorney to help guide you to surgeons and other specialists that are willing to testify in support of your Idaho Workers’ Compensation claim. Don’t let your Workers’ Compensation insurance adjuster pick your surgeon or specialist.

Another tactic used by Idaho Workers’ Compensation adjusters is to send you to one of their independent medical evaluators. They may offer the opinion that you need no further medical treatment. Idaho Code Section 72-432 (1) allows you to furnish your own medical care at the expense of the employer if they do not provide you with reasonable medical care. All you have to do is prove, through medical testimony, that the medical care that you are requesting is “reasonable”. Many injured Idaho workers have to use their own private health insurance to pay for medical expenses after they are injured while their Idaho Workers’ Compensation claim is being disputed. Upon settlement, the private health insurance companies now have a subrogated claim or a right to reimbursement.

Idaho comparative fault

Published on: January 5, 2017 | by Racine Olson

By Patrick N. George

Accidents are almost never just a simple matter of one person being at fault and paying for the injuries caused. Usually both parties bear some responsibility and attorney’s, judges, and ultimately juries are the ones who end up assigning the percentage of fault to each side. The case is presented to the jury and it compares the fault and adds the percentages up to 100%. When the plaintiff or injured party is compared to the defendant, his or her fault reduces the amount recoverable. In other words, if he is 25% negligent in causing the accident and the defendant is 75% liable, the plaintiff’s jury award will be reduced by 25% giving only 75% to the injured party. This principle is known as the rule of modified comparative fault.

Thirty-three states observe the rule of modified comparative fault. Each is free to interpret it differently. Idaho follows the 50 percent bar rule. This means that a victim may only recover damages if he or she is found to be responsible for 50 percent or less of the accident.

Who Can Get a Copy of My Will?

Published on: January 5, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

You are preparing your Estate Planning including a Last Will and Testament. You are putting various information in your Last Will and Testament that is sensitive, such as disinheriting a family member. 　Or you are leaving more money or property to a specific family member than to another. You anticipate that your family will view the gifts that you have given in your Last Will and Testament as being unfair. Now your question is, who can get a copy of my Last Will and Testament?

The good news is that until you die, no one but you is entitled to have and hold your Last Will and Testament. Even your attorney would be required to give to you your original Last Will and Testament if you choose. Most attorneys keep ahold of the original Last Will and Testament so that if it is ever needed for probate purposes, it can be easily found. However, even then, your lawyer cannot distribute a copy of your Last Will and Testament to anyone without your prior approval and authority.

Removing a Homeowner After a Non-Judicial Foreclosure

Published on: January 4, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

You are a holder of a mortgage on real property located in Idaho. The borrower who owns the Home Depot that and making their regular payments to you. You did everything right and doing a non-judicial foreclosure under Idaho law. A trustee’s deed has been issued naming you as the titled owner to the property. However, the homeowner refuses to leave the property. What can you do now to remove the homeowner after completing your non-judicial foreclosure?

Idaho law provides a mechanism for removing a homeowner once a non-judicial foreclosure has been completed. This process is called an ejectment. Ejectment requires proof of (1) ownership, (2) possession by the defendants, and (3) refusal of the defendants to surrender possession. Pro Indiviso, Inc. v. Mid-Mile Holding Trust, 131 Idaho 741, 745, 963 P.2d 1178, 1182 (1998). Further, a suit for ejectment is equitable in nature and, therefore, that there is no entitlement to a jury trial on the ejectment claim. Ada County Highway Dist. v. Total Success Invs., LLC, 145 Idaho 360, 369, 179 P.3d 323, 332 (2008).

Limits on Using Off-Duty Conduct in Employment Decision

Published on: January 4, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

In Idaho the limits of using off-duty conduct in an employment decision are mostly controlled by either an employment agreement or the “at will” doctrine described above. However, some exceptions to this may still apply. Using social media as an example illustrates these narrow exceptions. While none of the incidents reported below occurred in Idaho they likely will in the future. As reported:

May 25, 2010, Brixx Wood Fired Pizza waitress Ashley Johnson was pretty fired up about the couple that lingered three hours over lunch, made her work an hour past her quitting time – and then left her only a $5 tip. So Johnson, 22, did the 21st century equivalent of griping to the kitchen staff (or the bartender down the street): She vented on Facebook. “Thanks for eating at Brixx,” she wrote, “you cheap piece of —- camper.” (For the record, the $5 tip was 17 percent of the customers’ bill.)

Using a Specific Gift List as Part of Your Estate Planning

Published on: January 3, 2017 | by Racine Olson

By Lane V. Erickson, Attorney

Oftentimes the simpler you can keep your estate planning the better it will be. If your Last Will and Testament is complex, then anytime a major circumstance in your life changes, you may need to rewrite your Last Will and Testament. Our goal in completing estate planning for our clients is to keep things as simple as possible and yet allow flexibility with regards to the giving away of specific gifts. To do this we incorporate a specific gift list into every Last Will and Testament that we draft. Idaho law allows us to do this if we find it to be a good practice.

WHAT IS A SPECIFIC GIFT LIST?