DerryNews.com, Derry, New Hampshire

January 19, 2011

Lost wages, lost earnings are not the same

About the law
Andrew Myers

Q: My sister was going to school to become a teacher and completed everything except her internship. She was in a car wreck and now cannot be a teacher. She is not asking for lost wages, because she was mostly a stay-at-home mom without a clear actual employment history. Would she be eligible for a lost opportunity claim instead for her future lost income?

A: A lost wage claim looks backward and says if the injured person made X amount, then they should recover X times the amount of time they are medically determined to be unable to work. By contrast, a lost earnings claim looks ahead and says if the accident had not occurred, then the injured could have done Y. Arriving at Y presents legal challenges at numerous levels.

By way of example, who knew Bill Gates would become the richest man in the world the year he dropped out of Harvard? One problem with lost earnings claims is that courts and juries are not permitted to speculate. Damages must be based on documentation.

Also, injured persons have an absolute duty to mitigate their damages. That means they must do their best under the circumstances to do what they can to get back on their feet and to go forward with life.

Q: I was expelled from my church. In connection to this defamation issue, I was charged with serious offenses and punished, with no due process safeguards being followed.

Before all of this happened, I started to question this individual on possible child safety violations. I was punished, but other church members were not being disciplined at all, despite documented infractions, some involving child welfare. What about due process?

A: First of all, if there was child endangerment I would hope that this would have been reported immediately to child care licensing agencies and/or law enforcement.

As to your treatment, "due process" is a concept that applies only to governmental entities or people claiming that their rights are being infringed by some government process.

Due process is a constitutional issue requiring that in many, but not all, circumstances when any governmental entity is making a decision with regard to the rights of a citizen, that there be notice and an opportunity to be heard. Due process does not apply to a private decision, a corporate decision or a church decision.

If a church decides that it wants to give something similar to due process rights, it is free to do so — and it may bestow such rights in bylaws or elsewhere. But, there is no such due process requirement in the private sector.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.