Advise from lawyers or people who know the law

  • Posted by a hidden member.
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    Feb 07, 2013 2:01 AM GMT
    Last summer I was scheduled to leave for Australia for study abroad but had to cancel my trip a week before because of a hospitalization and having to stay home for treatments. I purchased travel insurance for my flight just to be sure, I didn't think I would be needing it seeing as I was in perfect health when I bought the flight. After I cancelled the flight I sent my claim into the travel insurance company and soon found out I was denied for a "pre-existing condition". I want to take the company to small claims court to get my money back seeing as it was a big chunk of money that I could use to pay for my tuition now. HOwever, on the small claims website it says that the defendant has to live or do business in my county.

    Is this correct or am I still allowed to file a small claim against the company?

    any advise would be great! thanks!!
  • Posted by a hidden member.
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    Feb 07, 2013 2:07 AM GMT
    Contact an attorney that offers a free initial consultation, and confirm he/she handles this kind of lawsuit. Maybe you did have a preexisting condition that prevents a claim. Let an attorney tell you that. As well as any jurisdictional issues, and where such a claim should be filed.
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    Feb 07, 2013 6:03 PM GMT
    Arrgghhh those bloody small prints at the bottom of the contract !!!icon_confused.gif
  • Posted by a hidden member.
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    Feb 07, 2013 6:17 PM GMT
    I AM AN EXPERT AT LAW.

    Maybe you need to file it in the defendant's country? I ono.icon_neutral.gif
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    Feb 07, 2013 6:27 PM GMT
    If the company does "continuous and regular business" in most states (IE buying or selling a core product or service), this will grant the Court personal jurisdiction over the defendant as it has satisfied the requirement for minimum contacts under US Law. This would apply to intra-state cases only.

    In which country is the insurance company based?
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    Feb 07, 2013 6:30 PM GMT
    nse2075 saidIf the company does "continuous and regular business" in most states (IE buying or selling a core product or service), this will grant the Court personal jurisdiction over the defendant as it has satisfied the requirement for minimum contacts under US Law. This would apply to intra-state cases only.

    In which country is the insurance company based?


    I expect this poster is right, and that your more difficult task will be service of process.

    I'm not your lawyer and am not offering legal advice, just my uneducated guess.
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    Feb 07, 2013 11:30 PM GMT
    First, you need to research whether the insurance company is a CA corporation (I assume you live in CA based on your profile). Virtually every state corporation commission or secretary of state has a database that contains the names of certificated corporations. Start there. If it is not a CA corporation, check whether it has a certificate of foreign authorization (virtually all states require out-of-state corporations to register as a foreigh corporation in their state if the corporation is doing business there). If the corporation is either a CA corporation or a certified/registered foreign cororation, your issue is resolved. If it isn't one of those two, then you need to determine whether the corporation is "doing business" in CA. "Doing business" is a term of art in most jurisdictions, and it is a term of art under CA state law. I have provided the definition of "doing business" below for your purposes. Note: if you determine that the insurance company is "doing business" in CA under CA law and it's not registered as a foreign corporation, you may be able to report that infraction to the CA secretary of state. If the secretary of state determines that the company has been doing business in CA without proper authorization or registration, the corporation may be subject to penalties, taxes, etc. So not only will you be able to file a lawsuit with the small claims court (remember that there's a damage cap in small claims court), you may be able to create additonal problems for the company. It's worth pursuing. Good luck. Please consult a competent CA attorney for additional information. THIS INFORMATION DOES NOT CONSTITUTE LEGAL ADVICE AND NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED HEREBY.

    ***************

    California Corporations Code


    Corporations - The Legal Definition of Doing Business in California

    CALIFORNIA CORPORATIONS CODE SECTION 191
    191. (a) For the purposes of Chapter 21 (commencing with Section 2100), "transact intrastate business" means entering into repeated and successive transactions of its business in this state, other than interstate or foreign commerce.
    (b) A foreign corporation shall not be considered to be transacting intrastate business merely because its subsidiary transacts intrastate business.
    (c) Without excluding other activities which may not constitute transacting intrastate business, a foreign corporation shall not be considered to be transacting intrastate business within the meaning of subdivision (a) solely by reason of carrying on in this state any one or more of the following activities:
    (1) Maintaining or defending any action or suit or any administrative or arbitration proceeding, or effecting the settlement thereof or the settlement of claims or disputes.
    (2) Holding meetings of its board or shareholders or carrying on other activities concerning its internal affairs.
    (3) Maintaining bank accounts.
    (4) Maintaining offices or agencies for the transfer, exchange and registration of its securities or depositaries with relation to its securities.
    (5) Effecting sales through independent contractors.
    (6) Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where such orders require acceptance without this state before becoming binding contracts.
    (7) Creating evidences of debt or mortgages, liens or security interests on real or personal property.
    (icon_cool.gif Conducting an isolated transaction completed within a period of 180 days and not in the course of a number of repeated transactions of like nature.


    (d) Without excluding other activities which may not constitute transacting intrastate business, any foreign lending institution, including, but not limited to: any foreign banking corporation, any foreign corporation all of the capital stock of which is owned by one or more foreign banking corporations, any foreign savings and loan association, any foreign insurance company or any foreign corporation or association authorized by its charter to invest in loans secured by real and personal property, whether organized under the laws of the United States or of any other state, district or territory of the United States, shall not be considered to be doing, transacting or engaging in business in this state solely by reason of engaging in any or all of the following activities either on its own behalf or as a trustee of a pension plan, employee profit sharing or retirement plan, testamentary or inter vivos trust, or in any other fiduciary capacity:
    (1) The acquisition by purchase, by contract to purchase, by making of advance commitments to purchase or by assignment of loans, secured or unsecured, or any interest therein, if such activities are carried on from outside this state by the lending institution.
    (2) The making by an officer or employee of physical inspections and appraisals of real or personal property securing or proposed to secure any loan, if the officer or employee making any physical inspection or appraisal is not a resident of and does not maintain a place of business for such purpose in this state.
    (3) The ownership of any loans and the enforcement of any loans by trustee's sale, judicial process or deed in lieu of foreclosure or otherwise.
    (4) The modification, renewal, extension, transfer or sale of loans or the acceptance of additional or substitute security therefor or the full or partial release of the security therefor or the acceptance of substitute or additional obligors thereon, if the activities are carried on from outside this state by the lending institution.
    (5) The engaging by contractural arrangement of a corporation, firm or association, qualified to do business in this state, which is not a subsidiary or parent of the lending institution and which is not under common management with the lending institution, to make collections and to service loans in any manner whatsoever, including the payment of ground rents, taxes, assessments, insurance and the like and the making, on behalf of the lending institution, of physical inspections and appraisals of real or personal property securing any loans or proposed to secure any loans, and the performance of any such engagement.
    (6) The acquisition of title to the real or personal property covered by any mortgage, deed of trust or other security instrument by trustee's sale, judicial sale, foreclosure or deed in lieu of foreclosure, or for the purpose of transferring title to any federal agency or instumentality as the insurer or guarantor of any loan, and the retention of title to any real or personal property so acquired pending the orderly sale or other disposition thereof.
    (7) The engaging in activities necessary or appropriate to carry out any of the foregoing activities. Nothing contained in this subdivision shall be construed to permit any foreign banking corporation to maintain an office in this state otherwise than as provided by the laws of this state or to limit the powers conferred upon any foreign banking corporation as set forth in the laws of this state or to permit any foreign lending institution to maintain an office in this state except as otherwise permitted under the laws of this state.
  • Posted by a hidden member.
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    Feb 07, 2013 11:34 PM GMT
    ^^^^^ I'm sorry, but I suddenly find legalese in a wet t-shirt extremely hawt!!! This could make court cases much more interesting. Just sayin'...