Legal Thursday – Hoarders and Arbitration Questions

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Welcome back to Lawyer Thursdays!  Last week went over so well, Hewy is going to allow me to continue to answer your legal questions each week! You can submit your legal question to cbdavidson@davidsonlawoffice.com any time.  You don’t have to have specific problem or issue.  I will be happy to answer those legal questions that you may have been wondering about for years!  Please put “Lawyer Thursdays” in the subject line as I also receive many emails through my website at www. Davidsonlawoffice.com.  You may also call Davidson Law Firm at 685-4822 or come by the office located in Old Towne Helena.

Question: My next-door neighbor is a hoarder.  Does Helena have any restrictions for such activity?

Answer: That depends on what your neighbor is hoarding and where.  Helena does have an ordinance restricting junk, trash, and debris from your yard.  If the hoarding activity is inside the residence then the issue becomes more difficult and diverse.  Helena cannot do anything about what’s inside your residence (outside of illegal activity) unless it either becomes a public nuisance or a fire hazard.  For example, 28 dogs barking all hours of the day and night would be a public nuisance while hoarding of stacks of newspaper and magazines would be a fire hazard.  If the hoarding activity is creating a health hazard then your recourse is through the Shelby County Health Department.

Question:  Why is it that every time I want to buy something they make me sign a paper that says I can’t take them to court but instead I have to go a mediator?  Is this just a State of Alabama thing or does this occur in other states?

Answer:   I could write a whole book on this issue.  What you are referring to are arbitration agreements that exist nationwide and really started to encroach into our daily lives in the mid to late 1980’s.  Arbitration is legally binding mediation where the parties submit their arguments and evidence to a mutually agreed upon or Court appointed Arbitrator (who you have to pay in whole or in part) who will then decide the case.  There are no rights to appeal and there are no requirements that the Arbitrator even has to apply the law.

The Federal Arbitration Act was first passed by Congress in 1925 to encourage and allow businesses to agree to resolve disputes without the Court system.  However, as we all know, arbitration has now creeped into every aspect of consumer transactions and now employment agreements as well.  In essence, in exchange for the privilege of purchasing that car, house, motorcycle, boat, mobile home, mouse trap, or pack of gum you are also agreeing to the waiver of your rights under the Seventh Amendment of the United States Constitution which states,

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

The legislature of Alabama specifically prohibits arbitration. Ala. Code § 8-1-41(3) (1975).  However, the Federal Arbitration Act preempts our State law in almost every circumstance thanks to the U.S. Supreme Court’s decision expanding the scope of the Commerce Clause in Allied-Bruce Terminix Companies v. Dobson, 513 U.S. 265 (1995).  Under Dobson, there doesn’t seem to be any activity or transaction that does not affect interstate commerce bringing in the preemptive Federal laws.

Send your legal questions to Brian Davidson at cbdavidson@davidsonlawoffice.com

PSYCHIATRIC INJURIES IN WORKERS’ COMPENSATION

PSYCHIATRIC INJURIES IN WORKERS’ COMPENSATION

By C. Brian Davidson

            One of the most difficult and complex types of workers’ compensation cases is that which involves mental injuries.  These cases are difficult to litigate for both the employee and the employer due to the often complex issues of medical and legal causation and extent of vocational impairment. However, the numbers of workers’ compensation claims in which a mental injury or disorder is involved is on the increase.  The medical community is increasingly diagnosing injured workers with mental disorders such as depression and post traumatic stress disorder as a result of the injured workers’ accident and/or subsequent pain and disabilities in conjunction with the physical injuries suffered by the worker.  The appellate courts are affirming trial court awards of permanent and total disability which included mental disorders and disabilities and physical disabilities.  Continue reading