Delaware Business Lawyer Blog

When there’s a dispute as to whether a broker has earned a commission, in Delaware (like many other states), the general rule is that a broker is entitled to recover a commission only when he is the procuring cause of a consummated transaction. A broker is the “procuring cause” of a sale if his efforts bring his principal and the purchaser together and lead directly to the consummation of the transaction.

In cases where the negotiations do not progress promptly to a conclusion, but, after considerable delay, are finally satisfactorily concluded between the principal and the purchaser, close questions arise. In such cases, the courts have evolved a subsidiary rule that in order for the broker to be the procuring cause of the sale, it must appear that there was no substantial break in the negotiations. Whether there was a substantial break in the negotiations depends not so much on lapse of time as upon the chain of circumstances.

A principal has the privilege of taking over the negotiations from his agent, after introduction of the prospect, and acting on his own behalf in the consummation of the transaction. Such substitution by the principal of himself for his agent, per se, does not amount to a dismissal of the broker. And the action of the principal in so doing does not become an intervening or predominant cause such as will constitute a break in the chain of causation that, otherwise, would "lead directly" from introduction to consummation and constitute procuring cause.

There are two exceptions to the general rule.

(1) if, after producing the prospect, the broker was dismissed by his principal in bad faith as a device to avoid the commission.

(2) if a broker produces a prospect ready, willing, and able to meet his principal's expressed terms, the commission is earned regardless of whether or not the transaction is thereafter consummated. and this is so even though the principal may thereafter withdraw the broker's authority and dismiss him.

This is the 3rd article in a series of articles on the subject of teen dating violence. Previous articles are:
Delaware Attorney Discusses Schools and Teen Dating Violence
Teen Dating Violence In Schools

In June 2009, Delaware’s General Assembly established a Teen Dating Violence Task Force. The Task Force was given the responsibility of submitting a report containing recommendations for schools relating to policies on teen dating violence. The report has been written, and here are some of the highlights:

First and foremost is the adoption of the following definition of dating violence:
“Dating violence shall be defined as a pattern of assaultive and controlling behaviors that one person uses against another in order to gain or maintain power in a current or past relationship. The abuser intentionally behaves in ways that can cause fear, degradation, humiliation, injury or harm or uses any other coercive behaviors to control the other person. Abuse can occur in both heterosexual and same-sex or serious and casual relationships and covers a wide range of behaviors that includes harassment, verbal, emotional and economic abuse, sexual abuse, stalking, and physical abuse.”

The Task Force did some research into what other states are doing about this problem, and noted that “in 2009 and 2010, twenty-two (22) states introduced or enacted legislation that directs their Department of Education to implement policies for reporting and responding to dating violence and/or required schools to provide dating violence education.”

Examining the social implications of dating violence, the Task Force found that “dating violence involves a pattern of coercive, manipulative behavior that one teen uses against the other for the purpose of establishing and maintaining power and control.’

And, the Task Force explained why it is so important to establish school policies: “teen dating violence is a threat to school safety and undermines our schools’ capacity to accomplish their core mission, academic achievement.”

If you are a student or the parent of a student who is the victim of teen dating violence in school, contact a Delaware attorney to learn what your options are for ending the violence.

In Delaware, we have a mediation program that applies to mortgage foreclosures. The idea is that with the help of a trained mediator, the homeowner and the mortgage company might be able to work out an alternative to foreclosure. The mediation program applies only to the primary residence of the homeowner.

When the attorney for the mortgage company starts a foreclosure lawsuit in the Court, he must also send to the homeowner the following things:
(1) a document called “Special Notice Hotline Flyer”
(2) a hotline number
(3) a Universal Intake Form, and
(4) a Foreclosure Intervention Counseling Client’s Checklist

The Special Notice Hotline Flyer informs the homeowner that they should seek counseling with a HUD certified counseling agency by calling the hotline number. The Flyer also gives the homeowner information about the mediation program.

If a homeowner wants to enter the mediation program, they should meet with a HUD certified counseling agency and submit a completed Universal Intake Form to the mortgage company’s attorney and Delaware Volunteer Legal Services. In order to qualify for the mediation program, the homeowner and the counselor have to prepare a good faith proposal for making monthly mortgage payments. The monthly payment includes principal and interest, as well as escrows for taxes and insurance. These payments cannot exceed 38% of the homeowner’s gross monthly income, the repayment term cannot be more than 40 years, and the interest rate cannot be less than 2%.

There are other steps to follow, and any homeowner who has questions about this mediation program should contact an attorney to get all of the details.

If you were a patient in the hospital and you asked if you could go home, what would you do if the nurse or doctor said you could leave as long as you sign a discharge form? Would you sign the form and leave? What if you took the time to actually read the form and you discovered that it says you are leaving against medical advice?

Believe it or not, a surprising number of patients get discharged from hospitals against medical advice. This is the first article in a series of articles which discuss the problem. In this article, we’ll focus on what the form typically says.

Above the doctor’s signature are the following statements:
(1) In my best judgment, the patient is alert, oriented, and has the ability to understand his or her current situation.
(2) I have explained to the patient in clear language the nature of his or her medical problem and what the outcome may be if not treated.
(3) The form then has a place for the doctor to indicate what the diagnosis is, and another place for the doctor to write down the possible consequences of non-treatment.

At the bottom of the form is a place for the patient’s signature, and the following language: “I do hereby release and hold harmless the hospital, its employees, and the medical staff of and from any and all liability which may arise from my departure from the hospital against the advice of my physician.

Imagine a case where the doctor writes on the form that a possible consequence of non-treatment is ‘you may die.” Now imagine that the patient leaves anyway, and then dies the same day.

An important issue is the patient’s capacity to really understand the risk of leaving. We’ll talk about this in the next article.

If you or a loved one has a question about a discharge against medical advice, contact a Delaware medical malpractice attorney to learn what your rights are.

There’s been a recent Court decision that should be a tremendous help to nursing home residents who suffer from bed sores and infections. An 80 year old woman who was in a Pennsylvania nursing home died after she developed bed sores, became malnourished, and developed sepsis. This woman’s daughter sued the nursing home in federal court. One of the daughter’s claims was that the nursing home had violated her mother’s civil rights by failing to provide the level of care that’s required under a law known as the Federal Nursing Home Reform Amendments.

In the past, if a nursing home violated the standards set by the Federal Nursing Home law, the only risk to the nursing home was that the state or federal government might take action if the violations were discovered. This hardly ever happened because inspections were few and far between. As a result, nursing homes didn’t worry too much about being caught. But now, each and every resident of a nursing home is basically keeping an eye on the nursing home and can sue the nursing home to enforce the standards whenever there’s a violation. This is like having a cop on every street corner, and so hopefully nursing homes will make a much greater effort to provide the quality of care that’s required.

If you have a loved one in a nursing home who is not receiving the quality of care they deserve, contact a Delaware attorney right away to discuss your options.

A catheter, of course, is a tube that’s placed into a patient’s large vein, usually in the neck, chest, arm, or groin. It’s generally used to draw blood, or to give fluids or medications.

A bloodstream infection occurs when live bacteria (or other germs) travel through the catheter and invade the bloodstream.

I’ve previously written about hospital-acquired infections. These are infections that patients acquire during the course of receiving treatment in a hospital for other conditions. It’s estimated that about 99,000 patients die each year from hospital-acquired infections. According to the Centers For Disease Control, of these 99,000 deaths, approximately 30,000 deaths are caused by catheter-related bloodstream infections (CRBSIs). Studies show that almost 100% of CRBSI’s could be prevented if hospital workers would:
(1) wash their hands with soap;
(2) clean patient's skin with an effective antiseptic;
(3) put sterile drapes over the entire patient;
(4) wear a sterile mask, hat, gown and gloves; and
(5) put a sterile dressing over the catheter site.

To show how outrageous it is that these infections occur, Medicare has classified CRBSIs as “never events” (meaning they’re preventable) and will no longer reimburse hospitals for the costs they incur due to these kinds of infections.

In Delaware, there’s a law called the “Hospital Infections Disclosure Act”. Under this law, a hospital-acquired infection is one that was not present or incubating at the time the patient was admitted to the hospital. Hospitals in Delaware are required to report health-care acquired infections to the Department of Health & Social Services. The purpose behind this law was to make available to the public information about the risk of hospital-acquired infections in each of the following hospitals:
AI duPont Hospital for Children;
BayHealth Medical Center – Kent General Hospital;
BayHealth Medical Center – Milford Memorial Hospital
Beebe Medical Center;
Christiana Care Health System – Christiana Hospital;
Christiana Care Health System – Wilmington Hospital;
Nanticoke Memorial Hospital; and
Saint Francis Hospital

An Advisory Committee that was established under this law decided that the first thing to be reported by these hospitals would be central line associated blood stream infections from the Intensive Care Unit (ICU) in each of Delaware’s hospitals. It’s unfortunate that the reporting requirements are limited to the ICU’s because the risk of hospital acquired infections exists throughout the entire hospital, and reports of infections in ICU’s does not provide the public with the information the law was designed for.

If you or a loved one contracted an infection while in the hospital, contact a Delaware medical malpractice attorney to discuss your rights.

There are times when an employer is held vicariously liable for the negligent acts of his employee. Vicarious liability comes into play under a doctrine known as “respondeat superior.” In order for an employer to be held liable under the doctrine of respondeat superior, the employee must be acting during the course of and within the scope of his employment at the time of the accident. The meaning of the phrase “scope of employment” has been the subject of many lawsuits.

The Delaware Courts which have dealt with this issue say that the conduct of an employee is within the scope of his employment if:
(a) the employee’s actions are the kind of conduct he is employed to perform;
(b) the employee’s actions take place within the authorized time and space limits; and
(c) the actions are taken, at least in part, for a purpose to serve the employer.

Using these guidelines, the mere fact that an employee happens to be driving his employer’s car at the time of the accident is not enough to make the employer liable for the employee’s negligence.

I don’t want to leave you with the impression that an employer can never be held liable for an employee’s negligent operation of a car unless the injured person can prove scope of employment. I bring this up because an employer, or for that matter, any owner of a car can be held liable for the driver’s negligence under a doctrine known as “negligent entrustment.” An employer or any other owner of a car will be held liable for injuries caused by the driver’s negligence if the injured party can prove the following:
(1) entrustment of the automobile by the owner;
(2) to a reckless or incompetent driver such that in said driver's control the automobile becomes a dangerous instrumentality;
(3) the owner knows or has reason to know that said driver is reckless or incompetent; and
(4) said driver causes damage to the property or person of another by his operation of the automobile.

If you or a loved one has been injured in a car accident, you should probably contact a Delaware personal injury lawyer to discuss your rights.

As a Delaware attorney who fights for victims of abuse, I am especially saddened when I hear about a young woman who has been physically abused by her boyfriend. And the situation gets even worse when the girl and her abuser attend the same school. There is a great deal of information available about teen dating violence in the schools, and if you're interested in learning more, a good place to start would be to check out the links provided below.

One interesting site is from a non-profit group called "Break The Cycle." Here's a brief excerpt:
Teen dating violence is an urgent, silent epidemic. One in three teens will experience abuse in a dating relationship and more than two-thirds of them will never report it to anyone. Break the Cycle believes everyone has the right to safe and healthy relationships. We are the leading, national nonprofit organization addressing teen dating violence. We work every day towards our mission to engage, educate and empower youth to build lives and communities free from domestic violence.

Break The Cycle publishes a State Law Report Card which surveys the civil domestic violence protection order laws of all fifty states and the District of Columbia, assessing their impact on teens seeking protection from abusive relationships. The State of Delaware earned a grade of "B" on its report card for 2010.

Invisible Victims: Holding the Educational System Liable For Teen Dating Violence at School written by Christine N. Carlson

Schools have a unique responsibility to address the issue of dating violence for several reasons. First and foremost, schools force contact between a batterer and a victim in a way that most other environments do not

Second, schools have a duty to provide protection for their students, including safeguarding them from physical harm inflicted by other students.

Third, schools have a unique opportunity to affect a teen abusers behavior to a greater degree than actors in most other settings.

Fourth, schools and school districts are liable for sexual harassment that occurs on school campuses if the harassment is known to a school authority figure who has the power to stop the harassment but ignores the problem or does not address it sufficiently.

CDC

Teen Dating Violence Prevention:On-Line Tips and Tools For Educators

Teen Dating Violence

Understanding Teen Dating Violence

NPR - New Dating Seminars Target Teen Violence

Should a school district in Delaware be held liable when it fails to protect a female student who is a victim of dating violence while she’s at school? This is the first in a series of articles on this topic. Let’s start with an explanation of the problem.

As far as I can tell, Delaware is lagging behind some other states in protecting young girls from teen dating violence. The only law on the books at this time is one that allows persons in a current or former substantive dating relationship to apply for a domestic violence protective order. However, it also appears that Delaware is finally getting the message. Here are the most recent actions by Delaware’s General Assembly.

Last year, for example, Delaware created a Teen Dating Violence Task Force to evaluate and make recommendations on policies for Teen Dating Violence Awareness Education in Delaware. The reason the task force was created was because teen dating violence has become a prevalent problem in high schools, junior high schools and middle schools throughout the U.S. The Task Force was required to submit its written report and recommendations by May 1, 2010. It appears that there’s been some sort of delay, and I’m looking into it.

In the meantime, the month of February of 2010 was designated as Teen Dating Violence Awareness and Prevention month in the State of Delaware. The basis for designation was the following:

(1) approximately 1 in 4 adolescents report verbal, physical, emotional, or sexual abuse each year;

(2) 61% of teens in a relationship say that a partner has made them feel bad or embarrassed about themselves;

(3) 40% of teenage girls between 14 and 17 years of age reported being physically abused or sexually abused by a dating partner;

(4) 1 in 4 teens in a relationship say they have been called names, harassed, or put down by their partner during cell phone conversations and in text messages;

(5) 2/3 of these teens were with someone who they said acted jealously and who regularly asked where and with whom they were;

(6) almost 1/3 of girls who have been in a relationship said they’ve been pressured to have sex or to engage in sexual acts when they didn’t want to do so;

(7) 25% of pregnant teens reported being physically abused by their boyfriends, and half of those pregnant teens said the battering began or intensified after their boyfriends learned of their pregnancy;

(8) violent relationships in adolescence can have serious ramifications, causing victims to be at a higher risk for substance abuse, eating disorders, risky sexual behavior, unplanned pregnancy, suicide, and adult re-victimization;

(9) a study of adolescents and college students revealed that date rape accounted for 67% of sexual assaults;

(10) 81% percent of parents surveyed don’t realize that this is a problem.

The problem begins after the buyers move in to their new home and discover problems that were not disclosed to them. Depending on what the problem is and how much it will cost to repair, the buyers contact their real estate attorney for help. Many real estate attorneys do not get involved with litigation, and so they refer their buyers to an attorney who has experience litigating these kinds of disputes.

The easiest and least expensive way to get the problem resolved is for the attorney to write a letter to the sellers describing what’s wrong and asking for money. If the sellers refuse, the next step is to decide who to sue and what to ask for.

WHO TO FILE A LAWSUIT AGAINST
The obvious answer is the sellers. However, depending on the facts, it sometimes is appropriate to include the real estate agents and the buyer’s home inspector in the lawsuit.

WHAT TO ASK FOR
In most cases, the purpose of the lawsuit is to recover enough money so the buyers can pay to get the problem repaired. In some cases, however, money is not an adequate remedy, and so the buyers ask for rescission. If rescission is ordered by the Court, the buyers give the house back to the sellers, and the sellers return to the buyers the money the buyers paid for the house.

CLAIMS OF FRAUD
Fraud can arise from fraudulent concealment or fraudulent misrepresentation.

To prove fraudulent concealment, the buyer has to show that the seller took action intended to prevent (and which actually did prevent) the buyer from discovering the damage. This can occur when the seller takes action to conceal the defect. However, it can also occur when the seller takes action to dissuade or prevent the buyer from making an investigation that a buyer would have made and which would have disclosed the defect.

To prove fraudulent misrepresentation, the buyers must show the following 5 things:
(1) the seller made a substantial, material misrepresentation
(2) the representation was false
(3) the seller must have known it was false
(4) the seller made the representation with the intention of inducing the buyer to act upon it
(5) the buyer did act in reliance on the statement and was harmed as a result.

If you believe you've been the victim of fraud in connection with the purchase of your home, contact a Delaware real estate attorney to discuss your options.

Although I’ve never heard of this before, there’s apparently an old saying among doctors: “do not let your friends and family schedule a surgery in July.” There’s actually a term for this. It’s called the “July Effect” It has to do with the theory that during the month of July, there’s a significant increase in medical negligence in teaching hospitals. Well, a recent study conducted by David Phillips, a professor of Sociology, University of California, San Diego, indicates that there could very well be some truth to this.

The study examined 62.34 million computerized death certificates over a period of 27 years, from 1979 to 2006, and it focused on the 244,388 deaths involving medication errors. The study found that in teaching hospitals, there’s a 10% increase in deaths caused by medication errors during the month of July. As it turns out, July is when thousands of new doctors, fresh out of medical school, begin their residencies at teaching hospitals throughout the country.

The rate of medication errors drops back down in August, presumably because the new doctors are up to speed by then.

What's the message to take from this? If you're going to be admitted to the hospital, you might think twice about being admitted during the month of July.

I was recently contacted by a client who’s been sued in a Delaware Court even though he lives in another country and is not even a U.S. citizen. The first question that comes to mind is whether the Delaware Court can actually exercise personal jurisdiction over this nonresident. The answer to this question requires an explanation of Delaware’s Long Arm Statute.

The Delaware Courts apply a two-prong test in determining if personal jurisdiction exists over a nonresident. The first prong is statutory, where the Court must decide whether Delaware’s Long Arm Statute applies. The second prong is constitutional, and the Court must decide whether subjecting the nonresident to jurisdiction in Delaware violates the Due Process Clause of The Fourteenth Amendment (this is commonly referred to as the so-called “minium contacts requirement.”

To satisfy the first “prong” of the test relating to the Long Arm Statute, the plaintiff must show that the Court has either specific jurisdiction or general jurisdiction.

SPECIFIC JURISDICTION
For the Court to have specific jurisdiction, the plaintiff must show that (1) the defendant engaged in conduct that falls within at least one of the activities described below, and (2) that the plaintiff’s cause of action arises from defendant’s acts or omissions that took place in Delaware. The activities in question are:
(A) transacted any business or performed any character of work or service in Delaware;
(B) contracted to supply services or things in Delaware
(C) was present in Delaware when tortious acts or omissions occurred;
(D) had an interest in, used or possessed real property in Delaware; or
(E) contracted to insure or act as surety for, or on, any person, property, risk, contract, obligation or agreement located, executed or to be performed within Delaware.

GENERAL JURISDICTION
For the Court to exercise general jurisdiction, the plaintiff must show that:
(A) defendant engaged in tortious conduct outside of Delaware which caused injury in Delaware, and that defendant regularly does business or solicits business in Delaware;
(B) engages in any other persistent course of conduct in Delaware; or
(C) derives substantial revenues from the services or products used or consumed in Delaware.

Even if the plaintiff is able to establish that the Long Arm Statute applies to the defendant, that doesn’t end the inquiry because the Court must then determine whether exercising its jurisdiction over the defendant would violate the minimum contacts requirements of the Due Process Clause of the Fourteenth Amendment.

In a future article, I’ll discuss the minimum contacts requirements.

An injunction is a Court Order requiring someone to do something, preventing them from doing something, or making them stop doing something. A mandatory injunction seeks to change the status quo. are requested in a number of different situations. Here are a few examples.

(1) A school district in Sussex County refused to allow a student to enroll in a local high school. The parents sued for a Court order requiring the school district to enroll their child.

(2) A restaurant sued New Castle Count seeking an order requiring the Count to issue a certificate of occupancy.

(3) A homeowners association sued the owner of a house who they say built an encroachment in a common area. The Association asked for an order requiring him to remove it.

(4) A company sought injunctive relief against someone who obtained trade secrets by improper means.

(5) A widow sued several government officials seeking an injunction preventing them from publicly releasing the results of her husband’s autopsy report which would reveal the circumstances and cause of her husband’s death.

(6) An employer sues a former employee to obtain an order preventing him from soliciting the employer’s customers in violation of a contract.

One thing that all of these cases have in common is the requirement that the plaintiff establish that it does not have an adequate remedy at law. In other words, money damages will not provide the plaintiff with justice.

When there’s been a delay in diagnosing cancer, and the delay is caused by negligent error (failure to adhere to the standard of care), the question frequently comes up when does the 2-year statute of limitations begin? Under Delaware’s Medical Negligence Act, a lawsuit cannot be brought against a health care provider more than 2 years from the date upon which the injury occurred. As I’ve explained in a previous article, if the injury was unknown to the patient and could not have been discovered by the injured person during the 2-year period, the statute gives them 1 additional year within which to sue, even if they don’t discover it during the 3rd year.

Think that’s a bad result? It gets even worse. Imagine a situation where the doctor negligently failed to diagnose cancer, and the damage doesn’t show up until much later, such as when the cancer metastasized. The 2 years begins to run on the date of the misdiagnosis. The Court has come out and said that it may seem harsh that a statute of limitations begins to run on a misdiagnosis from the date of that misdiagnosis when the patient is unaware of the allegedly negligent error causing the injury. At the same time, the Court pointed out that this harshness is lessened by giving the patient 1 additional year to bring a suit in cases where the patient did not have knowledge of the claim until after the two-year period expired.

The Court also makes a point of distinguishing “manifestation of injury” from the definition of “injury.” Under the statute, the injury was the delay in treatment, and that injury occurred on the date that the cancer could have been diagnosed but was not. The metastasis of the cancer is considered to be a manifestation of the damage caused by the injury, i.e., the delay in treatment caused by the failure to diagnose the cancer earlier on

Some like to refer to the term “SOL” as statute of limitations. When I see things like this, I prefer to think of it as “ .... out of luck.”

If you or a family member is the victim of a misdiagnosis, you should consult with a medical malpractice attorney without delay.

Even though the general rule is that an at-will employee can be terminated for any reason, with or without cause, and at any time, Delaware recognizes that there are exceptions which allow an at-will employee to sue for wrongful discharge. In a previous article, I listed the 4 exceptions. In this article, let's focus on 2 of them.

THE PUBLIC POLICY EXCEPTION
The concept behind the public policy exception is based on good faith and fair dealing. To qualify under this exception, a two-part test must be satisfied:
(1) the employee must assert a public interest recognized by some legislative, administrative or judicial authority and
(2) the employee must occupy a position with responsibility for advancing or sustaining that particular interest.

PROMISSORY ESTOPPEL
The purpose of promissory estoppel is to prevent injustice. And it applies not only to pre-hire promises but also to post-hire promises that at-will employees have relied on. In order to establish a claim for promissory estoppel, the employee must show by clear and convincing evidence that:
(1) a promise was made;
(2) it was the reasonable expectation of the employer to induce action or forbearance on the part of the employee;
(3) the employee reasonably relied on the promise and took action to his detriment; and
(4) such promise is binding because injustice can be avoided only by enforcement of the promise.

If you were an at-will employee who was fired for reasons you feel were unjust, consult with a Delaware attorney to discuss your rights.