Jonathan Cooper’s Blog

Although several of the small business owners I have encountered in the past few years thought they were immune from being sued for unpaid commissions by their salespeople, they learned — too late — that New York’s Labor laws dictated otherwise. As part of their Monday morning quarterbacking, these business owners came to realize that had they invested a modest amount of additional time and resources into drafting a comprehensive and clear commission agreement in the first place, they certainly would not face exposure to paying commissions at a salesman’s wished upon (rather than agreed upon) terms, and perhaps could have prevented litigation altogether. After some further analysis, it seems that these business owners’ surprise (and Achilles’ heel) was the product of their belief in one or more of the following myths:

Myth #1 - Signing bonuses are inherently discretionary - New York’s courts have held that where a signing bonus is guaranteed as a term of employment that is tied to the salesperson’s job performance (such as the sale of a new account), and further, is not expressly made subject to management’s discretion, the bonus is deemed wages under the Labor Law, and thus, cannot be forfeited if earned prior to termination and/or resignation.

Myth #2 - “If it Isn’t Written, It Doesn’t Exist - contrary to popular belief, just because a commission agreement is oral doesn’t necessarily mean it is unenforceable.  In that regard, while an employer can change the terms of an at-will employee’s agreement prospectively, it cannot change the terms of the agreement retrospectively. Simply put, once the salesperson has already earned commissions at an agreed upon rate, the employer cannot go back and refuse to pay those commissions.

Myth #3 - Termination for Cause Is Cause for Forfeiture of Commissions - New York’s Labor Law clearly states that commissions which are earned during employment (i.e., vested), cannot be forfeited as a matter of public policy.

Myth #4 - If It Isn’t Clear from the Contract that a Commission is Owed, the Salesperson Can’t Collect - a fundamental, and nearly uniform rule of law is that any ambiguity in a contract is construed against the drafter of the contract. As a practical matter, this means that the courts are obliged to side with the salesperson with regard to any provision in the agreement that does not make it patently clear as to whether, and if so, how much, commissions are owed for a particular sale.

As the foregoing makes clear, it certainly pays to have well-crafted and clear agreements with commission salespeople. The short-term cost in time and money will not only help avert misunderstandings, and thus safeguard company morale, but will likely save you untold sums of money by either minimizing, or preventing entirely, the costs of litigation.

In our prior article entitled “5 Rules to Succeed in Filing an Insurance Claim,” we provided tips to avoid some of the insurance industry’s favorite gambits for denying rightful claims, including the insurer’s receiving late notice of the claim. But let’s say you made a mistake, and failed to timely notify your insurer about the claim. Should you meekly accept defeat, and walk away with your tail held squarely between your legs? Assuming that the claim is of significant value, the answer to this question should be a resounding “NO — NOT WITHOUT A FIGHT!”

Although you could theoretically appeal the insurer’s denial of claim to your State’s Insurance Department, I have found this step to be a waste of time, money and effort.  Your resources will be far better spent in court.  That being said, your likelihood of success in contesting the insurer’s denial of coverage in court will be largely dependent on the particular facts of your case, and naturally, some of these defenses are more difficult to prove than others.  To help you make a more intelligent assessment of your chances, following is a list of possible challenges to the denial:

1) No prejudice, no denial - At the end of July, New York State Governor David Paterson signed into law new legislation that will bar insurers from disclaiming coverage for late claims unless they can demonstrate they were “materially prejudiced” by the delay. (Until the new law takes effect in mid-January, 2009, the rule remains that an insurer may deny claims on the grounds of late notice regardless of whether or not the insurer suffered harm by the delay.)

2) Lack of Knowledge of Injury - One justification for providing late notice of the claim is that was no reasonable basis to conclude that anyone was injured in the accident.  Bear in mind that this is not an easy burden of proof to satisfy, because the courts have held that in an accident where the property damage totaled just over $700, the insured was obligated to notify his insurer about the potential for a personal injury claim.

3) Lack of Knowledge of Accident - although somewhat self-evident, if you had no reason to know that an accident occurred, you are not obligated to report it to your insurance carrier.  Stated differently, you can’t report what you don’t know.

4) “They Would Never Sue Me — Would They?” - New York’s highest court has held that where it does not appear that any permanent injury has been sustained, and the nature of the relationship between the injured party and the insured (such as a close familial relationship) was such that the insured had reasonably believed that they would have been apprised if the injured party had been contemplating a lawsuit, late notice of the claim may be excused.

5) Lack of Knowledge of Coverage - New York’s courts have found justifiable an insured’s late notice of claim where the delay was caused by the insurance broker’s faulty advice that the policy had been cancelled. Similarly, the courts have deemed reasonable an insured’s untimely notice where the insured belatedly discovered that the defects in the workmanship of its products were caused by industrial sabotage, and there was substantial confusion as to which insurance policy was implicated.

6) Incapacity of the Insured - Finally, although infancy or illness do not, standing alone, toll the time within which the insured must provide notice of the claim, the courts have excused the timely notice requirement where the insured, a person of “limited personal and vocational backgrounds,” was misinformed by the agent of the insurer that coverage was provided under a policy issued by another company. Likewise, the courts exempted an insured from the timely notice requirement where her physical condition rendered her completely dependent on others, and she had relied upon what the driver, her nephew, told her about the accident.

In sum, your insurer’s denial of coverage for your late notice of claim need not be the final word on the matter. Under the right conditions, you retain the power to contest the denial - and win.

Many small business owners that I’ve encountered are surprised to learn that under New York law, anyone in a product’s chain of distribution can be held liable for injury that results from the foreseeable use of the product. This law includes a retailer, who may have just put that product on his shelf without ever opening the box, and a distributor, who merely transported the product from one destination to the other. Under this scenario, neither the retailer nor the distributor was actively at fault for the product’s defect or the plaintiff’s accident – and they can still be held liable. Does that sound scary from the retailer or distributor’s perspective? It sure is.The Plaintiff’s Burden of Proof in a Products Liability ActionIn very basic terms, in order to prevail in a products liability action, a plaintiff needs to prove two things: first, that the product is defective, i.e., the product is so likely to be harmful to persons or property that a reasonable person who had actual knowledge of its potential for producing injury would conclude that it should not have been marketed in that condition, and, second, that the defect was a substantial factor in causing plaintiff’s injuries.  The plaintiff can meet this burden of proof by demonstrating one of the following: (1) this specific product was defectively manufactured; (2) the product was defectively designed; or, (3) the safety warnings accompanying the product were inadequate. At first blush, this law seems particularly tough on middlemen like the retailer and distributor, which presumably have little to no input in either the manufacture or design of the product, or the warnings that are placed on the product. However, it bears mention that these entities reap the financial rewards from selling the product. Consequently, the courts have opined that in the interests of assuring that a plaintiff with a legitimate defective products claim has a viable and readily available party from whom he or she can be compensated (as opposed to a foreign manufacturer with no connection to the plaintiff or place of occurrence), it is fair to hold the middlemen liable for the product’s failures. This law does not leave retailers or distributors without recourse; to the contrary, they are still entitled to seek indemnity and/or contribution from the responsible party (generally, the manufacturer).  On the other hand, clearing the technical and procedural hurdles necessary to get indemnity from the manufacturer is often far from simple, particularly where the manufacturer is foreign.Assumption #1: The manufacturer has the requisite minimum contacts with the forum of the claim. In order to obtain personal jurisdiction over the foreign manufacturer, you must demonstrate that the manufacturer either transacts business or has some other tangible nexus with the forum state (see, e.g., New York Civil Practice Law and Rules §302).  Assumption #2: The manufacturer’s host country is a signatory to the Hague Convention’s Service of Process Rules. If Assumption #1 can be satisfied (which is uncertain at best), you will still need to assure that your legal papers are personally served on the manufacturer. This in turn requires that the manufacturer is not only readily located, but can be served under the Hague Convention’s rules.Assumption #3: The manufacturer is a viable entity with collectible assets. It goes without saying that a paper judgment against a defunct corporation is utterly worthless.So how can a domestic retailer or distributor protect itself against products liability claims?  Here are a few suggestions:3         Easy Steps to Protect Your Retail Business Against Defective Products Claims Step #1: Make sure that those entities above you in the chain of distribution carry adequate products liability insurance from a domestic, well-reputed and established insurer that specifically names your company as an additional insured on the policy. Do not rely on the manufacturer’s claim that you are named on the policy; get confirmation directly from the insurer (I have seen instances where the declaration sheet provided by the other party to the agreement was a complete fabrication).Step #2: Make sure that you have an agreement that indemnifies you against any claim of a product defect that is not of your own doing.  Stated otherwise, if you are a retailer or distributor, you should be indemnified against any claims of manufacturing or design defect and/or inadequate warnings.Step #3: Try to assure that those companies directly above you in the chain of distribution have a domestic presence, such as an office or agent for service of process.

While following these rules may cost some time and money in the short run, these safeguards are indispensable, for they may ultimately save your company from needless exposure to financial ruin.

 1)                  You Fail to Timely Notify Your Insurer That You Have Been Sued 

Nearly all insurance policies require you to inform the company of a lawsuit, or even an anticipated claim, “as soon as practicable.”  The courts have generally interpreted this provision as requiring that the insurer be given written notice of the claim within 30 days; otherwise, the insurer may correctly deny your claim. In order to best protect your interests, I suggest that you forward the insurer a copy of the suit papers both by fax (so you have a fax confirmation sheet)  and by certified mail, return receipt requested to head off any claim by the insurer that they did not receive timely notice of the claim.

 2)                  You Fail to Procure Enough Insurance to Protect Your Assets  

For a difference of roughly $100-$200 a year, you can probably get an additional $200,000 worth of liability insurance; for roughly $300 a year, you can get a $1 million umbrella policy. Very often, people look to save a few dollars on their insurance, and purchase minimum policies that leave their assets, such as their home and bank accounts exposed. This is pure foolishness. Simply put, at these low prices, you cannot afford not to purchase this additional insurance.

 3)                  “Since this Case is Frivolous, I Will Just Ignore it and it Will Go Away.”  

Ignoring the lawsuit will not make it go away – it will only make it far worse.  You may not want to spend the money to hire a lawyer to defend your interests (again, this assumes that your insurer is not defending you), but if you don’t, you will end up with a default judgment against you that prevents you from demonstrating that this claim is meritless. Further, you may end up with a judgment that clouds the title to your home, shows up on your credit reports, and the sheriff may levy on your bank accounts.