Saturday, December 21, 2013

Your 30-year shingles are just like your 50,000 mile tires!

So you think you have a 30-year replacement warranty for those 30-year shingles on your house?

Think Again.  A recent December 2013 Michigan Appeals Court case affirmed a defendant Shingle Supplier's win over a grieved Plaintiff who sued the supplier after about 13 years because his 30-year shingles were failing.

The plaintiff claimed that there was a breach of implied warranty and a violation of the Magnuson-Moss Warranty Act (Federal Law).  The court ruled that where a plaintiff seeks to recover for economic loss caused by a defective product, the exclusive remedy is provided by the Uniform Commercial Code(UCC).  There was no evidence of any express warranty.

Unfortunately for the Homeowner Plaintiff, the UCC has a defined statute of limitations.  The UCC, codified at MCL 440.2725, has a four-year limitations period for a breach of implied warranty.  Therefore the filing of the lawsuit after 13 years was way past the limitations period and therefore time-barred.  The claim under the Magnuson-Moss act also failed for the same reason.

While the shingles were marketed as “30 year shingles,” that is NOT the same as having an express warranty with full coverage for 30-years.  In this case, there was no proof of any express warranty, therefore the lawsuit was filed over an implied warranty and it was too late for that.

Today, the reality is you will be given an express warranty that reads something like this:   During the first five years defendant would pay the full cost of labor and materials to repair defective shingles or apply new shingles to replace defective shingles. After five years, a limited warranty provides for prorated coverage for materials only.

The Homeowner loses!  Your 30-year shingles are just like your 50,000 mile tires!

Wednesday, December 11, 2013

Do you need a driver's license to "travel"?

I've never heard the argument in person, before today.  I am certainly not advocating their position, but it was interesting hearing it in open court this morning. 

The defendant was caught for driving without a valid license.  The defendant engaged in a "sovereignist" argument,  making the argument that because one of the fundamental rights under the US Constitution is the right to travel, there should be no licensing requirements that would impinge on that right.   He repeatedly referred to himself as a "traveler", not a "driver" of a car.

In short, here's his argument:

1. It is well established that a Fundamental Right under the US Constitution is the right to travel.

2. The claim and exercise of a constitutional right cannot be converted into a crime.  Miller v. US, 230 F.2d 486, 490 (1956).
3. By requiring a drivers license to "travel", a state has converted this right to a privilege, a privilege that can be, and is often, taken away.  If you drive without a license, the city and state laws and ordinances make it a crime.

4.  Therefore, any law or ordinance that requires a driver's license is invalid and the court has no jurisdiction to convict or sentence someone for not having a drivers license, as it can't be a crime to do so.

Predictably, this argument did not go very far with the Judge. It is well established that the states have the right to license and regulate for the safety and security of their residents.  Requiring a driving test, a written test, and an eye test certainly fall within established parameters providing for the safety and security of the state's residents, whether they are the drivers, passengers or pedestrians.

This "sovereignist" argument can be akin to the movement that believes the IRS doesn't have the power to collect taxes, and so those in the movement either file under protest or don't file at all.

Saturday, December 7, 2013

Issue -- Family Law, Change of Circumstance for Custody purposes

Issue -- Family Law/Custody:  Is it a "change of circumstances" if there is an escalation or expansion of disagreements between the parents?

In November 2013, the Michigan Court of Appeals said yes in Gates v. Kadoguchi.

The court held that the trial court properly awarded the defendant-father sole legal and sole physical custody of the parties' children.  On appeal, the court first rejected the plaintiff-mother's argument that the trial court's finding of proper cause or COC was against the great weight of the evidence, holding that an incident involving plaintiff calling the police, which occurred after the judgment of divorce, constituted a COC. It found the incident relevant to several best interests factors, and noted that plaintiff's subsequent "inability to control the children" based on the incident was "a change in the children's environment that would have a significant effect on their well being."

The court found that the trial court did not commit clear legal error and its findings regarding best interest factors (a), (b), (d), (e), (h), (j), and (l) were not against the great weight of the evidence. "The trial court did not abuse its discretion in changing custody."

Tuesday, December 3, 2013

Does your adult Child have Powers of Attorney?

Does your College Student have a Durable Medical Power of Attorney (patient advocate)?    Many parents don't think about this document even for themselves, much less for their child when that child turns 18 and goes to college or moves out.  Once the child turns 18, parents are not necessarily the default decision maker in medical decisions for that child.  Having an attorney draft up and execute this document will memorialize the intent of your now adult child in regards to medical decisions for that child in the event of his incapacity.
The same applies for a Durable Power of Attorney, but given the lack of assets of most young adults, this may not be as critical as having a Durable Medical Power of Attorney.