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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 16189
Experience:  Licensed Texas General Practice Attorney
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Dilema. California Civil complaint names as defendent both

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Dilema. California Civil complaint names as defendent both the individual and the individual's sole proprietorship. Biz has no employees. Plaintiff is suing because the defendent sent to a state licensing board an ad run by the plaintiff, stating only that the ad was unprofessional. Board investigated and determined that plaintiff was practicing without the required license. The plaintiff was convicted of felony of practicing without license and is suing defendent in civil court for defamation, negliegence, persnal injury etc.. Defendent has only general biz liability insurance but is concerned the insurer will refuse to take case as defendent is being sued both as an individual and business and insurer may argue that what the defendent did was act of a natural individual as opposed to a business. . How does one explain that this was a reasonable activity the defendent did as part of defendent's business? Complaint was on business letterhead.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I'm sorry to hear about your situation. Is the plaintiff a competitor or yours? What interest would you have in whether or not the ad was unprofessional?

Customer:

Direct competitor, no. Not in same communities. The ad was a poor reflection on our area of business, our profession as a whole and we are a very small profession. Dont have a copy of the ad, still being sought it from the board. But believe it was misreppresenting the success rate of a medical procedure, or offering a cut rate on a medical procedure

ScottyMacEsq :

Do you have a copy of the letter that you sent?

Customer:

I have an unsigned copy of the letter but not of the ad.

ScottyMacEsq :

I understand. What is the nature of your profession? That is, if the ad was able to run, would it have an impact on your business (basically bringing the entire industry into disrepute, and by extension, your business)?

Customer:

A health care specialty. Dont know if i should be more specific in this forum. But yes, the the ad, these types of ads, do bring the specialty into disrepute, and by extention my reputation. These kinds of ads give a sleaze factor to profession.

ScottyMacEsq :

thank you for that information. That's really what you need to put on this explanation of how this filing was in business activity. If your business could, even potentially, suffer business losses as a result of this individual's actions, then your actions would be in your business role, rather than your personal role. The whole point is to show that you frankly don't care as an individual, but only as a business owner who would be affected by the advertisement.

ScottyMacEsq :

Now having said, an official letter will never be the basis for a defamation action, nor would matters of opinion. You can still represent yourself in this action, and make him essentially prove all the elements of this cause of action. It's pretty clear that your actions certainly would not constitute defamation (if they were opinions rather than facts) nor would constitute negligence of personal injury.

Customer:

Is there an argument ot be made that it was an issue of medical ethics and consumer proteciton as being tied to business as oposed to individual?

ScottyMacEsq :

Certainly, but for to be a business of matter, the best argument would be that it would be something that would directly impact your specific business, rather than the industry as a whole or from the consumer protection perspective.

Customer:

Should one consider a motion to strike and an answer as first response.

ScottyMacEsq :

again, even a reasonable belief that it would affect your business would be enough to show that it was a business matter, and the fact that he is suing her business as result would certainly indicate that as well.

ScottyMacEsq :

*suing your business

ScottyMacEsq :

By the way, I apologize for any errors in this answer. I am using a voice recognition program, and while it is accurate most of the time, is not 100% accurate, so if there's something that doesn't look quite right, or appears out of place or not grammatically correct, the reason is likely the software that I'm using. If will try to catch any errors, but if if you need clarification at the end, please let me know.

ScottyMacEsq :

a motion to strike, maybe. but you would certainly want to file an answer to it.

ScottyMacEsq :

Now this is certainly something that you want to make sure that the insurance company is not going to cover before you personally involved in legal process, but assuming that they do not cover your legal defense, then I would suggest going into the courthouse and seeing if they have any forms on file to file an answer. I would also suggest going to the library and checking out a book on how to represent yourself in court, and the specific things to allege in an answer to essentially telling him to prove his case, and say to the court that you do not believe that he can prove his case.

ScottyMacEsq :

that's really what an answer is in the first place.

ScottyMacEsq :

After that point, if he does not produce any evidence to support his case, then you could file a motion for summary judgment, rather than a motion to strike, which would essentially be a definitive judgment on the merits of the case, and would prevent him from filing lawsuit again. A motion to strike, on the other hand, would be a way to stop the case, but would not prevent him from filing another lawsuit at another point in time.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

ScottyMacEsq :

Did you have any other questions before you rate this answer?

Customer:

You've been a great help. one last question, when reporting the complaint to biz insurer, would it be better to state up front in a cover letter the reason it is a biz activity, or wait and see if they either ask why this is a biz activity or say they wont cover because it isnt biz activity?

ScottyMacEsq :

I would state that it was a business activity, if specifically asked already how this was a business activity, but even if not specifically asked, I would still state that it was and how.

Customer:

Thanks, XXXXX XXXXX a 5. If more questions arise through this procedure, am i able to ask for you again to be my answerer?

ScottyMacEsq :

Yes. You can basically send a question, starting it "To ScottyMacEsq" and it should get to me.

ScottyMacEsq :

 


If there's nothing else right now, please rate this answer. Please note that I don't get any credit for the time (~1 hour) and effort that I spent on this answer unless and until you rate it a 3, 4, 5 (good or better). If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, XXXXX XXXXX luck to you!

 

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