You Are Essential Business

You Are Essential Business

You are “Essential Business.”



Today, Buncombe County Government issued a “Stay Home – Stay Safe” order. A copy of the order can be found here.

The order provides that “Exceptional Businesses” may remain open, and the order defines those businesses. All business may maintain “minimum basic operations.”

Brian Elston Law was designed to be there for our clients, no matter the circumstances. As the founder of the firm, I am grateful to share that we are still available even during times of crisis. Our firm has systems set up where operations can continue, and that our primary goal of being there for clients is being met.

“At their best, lawyers assure the availability of legal services to all, regardless of ability to pay, and as leaders of their communities, states, and nation, lawyers use their education and experience to improve society.”

-Preamble to the NC Rules of Professional Conduct”

We will get through this time together, and we are here to do our part.

If you have a pending legal matter, and need assistance give us a call. Examples of pending legal matters that we handle are:

  • Should I apply for unemployment if I am receiving workers’ comp benefits?
  • How will this crisis affect my workers’ comp. benefits?
  • How will COVID-19 affect my motor vehicle accident claim?
  • What happens if I do not receive my workers’ comp check?
  • Can I still count lost wages in my personal injury claim during this time?
  • and others…..

Feel free to contact us if you have any questions. We are there for you.

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Rent Abatement during the Coronavirus Pandemic

Rent Abatement during the Coronavirus Pandemic

Rent Abatement during the Coronavirus Pandemic



Of the many fears associated with the COVID-19 Pandemic, one of the biggest is the direct and indirect economic disruption associated with the Pandemic. Put another way, the legitimate fear of losing your job or having your hours reduced to the point of not making enough money to pay your mortgage, rent, bills and feed your kids. For many folks in Western North Carolina right now, this fear is quickly becoming a scary reality.

The good news is that that some financial help is on the way. As this blog is being written, the United States Congress is still debating the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”). Provisions of the CARES Act include providing financial payments to citizens and low interest loans and grants to small business if they keep workers employed. In the wake of the Pandemic, North Carolina has eased unemployment benefit restrictions. However, even with these promised financial tools, many people are still worried about how they are going to pay their monthly mortgage payments or rent.

A. Mortgage Hardship Forbearance.

Just last week, the Federal Housing Finance Agency advised lenders to offer forbearance options for individuals impacted by the coronavirus and who are in jeopardy of falling behind on their mortgage payments. A “mortgage forbearance” is a situation where a lender temporarily reduces or suspends mortgage payments for a period of time (generally no greater than six months) while the borrower’s financial stabilizes. While the interest on the mortgage still accrues, payments stop. Most of the major mortgage lenders have provided information on their websites addressing forbearance and hardship options for individuals impacted by the Pandemic. Here is a link to a recent web article posted by Forbes magazine listing major financial institutions and what they are doing to help assist their customers. Even if your financial institution is not listed, visit its website or call to learn what options might be available.

The most important thing is don’t put your head in the sand and just unilaterally stop making your mortgage payment. BE PROACTIVE. Contact your financial institution immediately and ask about what forbearance or hardship options are available and if you qualify. Being ahead of the curve and requesting a mortgage forbearance is a significantly better position that having your mortgage go into foreclosure and then trying to work-out a solution with your lender.

B. Rent Abatement.

If you currently have a residential lease agreement, it is certainly worth discussing with your landlord about rent abatement. Rent abatement is just like a mortgage forbearance, a temporary reduction or suspension of rental payments for a specified period. In North Carolina, a landlord is not required to voluntarily provide rent abatement in most situations. However, if you or your spouse have lost a job or had hours significantly cut as a result of the Pandemic, it is certainly worth exploring this option with your landlord. Keep in mind, if you have been a good tenant in the past, your landlord should have an incentive to work with you. It is much easier and cheaper to keep a good tenant than having to search for a new one – particularly now.

While you can’t force your landlord to agree to a rent abatement, try to convince your landlord using reasonable positions:

A. Do Your Homework! Anecdotal stories carry far less weight than hard numbers. Before you discuss this topic with your landlord, know your numbers. How has the Pandemic impacted your immediate household budget? Using conservative estimates, how might the Pandemic impact your household budget for the next 3-6 months if the current situation remains the same.

B. Lease Extension. Depending on how your lease is structured, you could agree to extend the term of the lease for each month of rent abatement. For example, if your landlord agrees to a three-month rent abatement period (i.e., no payment of rent for three-months), then you could agree to extending your lease by adding three extra months to the end of your lease.

C. Compromise. Something is better than nothing. If your landlord will not agree to a full rent abatement, then try a partial rental abatement – 50% or 25%. If your landlord will not agree to three-months (which seems reasonable in light of what medical professionals are forecasting with the Pandemic), then try two or one-month.

D. Get it in Writing. Make sure to have a written agreement which properly amends your current lease.

It is hard not feeling overwhelmed and scared watching the news. It is only natural given everything that is going on and it is easy to be reactive rather than proactive. Hang in there! Now, more than ever, Brian Elston Law is here to help you and your families through these uncharted waters. Don’t hesitate to contact us if you have questions or need to talk to someone about your situation. We are all in this situation together, and together, we will do our best to get out of it.

Coronavirus (Covid-19) Public Health and Safety

Coronavirus (Covid-19) Public Health and Safety

Coronavirus (Covid-19) Public Health and Safety

Important Announcement


We would like to take a moment during this Coronavirus public health emergency to reiterate that the well-being of our clients and potential clients is, and has always been, the focus of Brian Elston Law. As a private, client-centric personal injury firm, we regularly make ourselves available through phone calls, in-person meetings, emails, and even text messages. Due to our specialized size, we can be there for each of our clients.

Our clients can trust that we are here for them, even amidst the recent Covid-19 concerns. We do not anticipate any disruption in service. We will be, however, taking extra precautions for in-person meetings. As our office is private with already limited foot traffic, we believe that we can still offer in person meetings with extra precautions in place.

We will be doing our part as members of the community by limiting social interactions to an as-needed basis. We will continue our “in-person by appointment” only policy. Prior to scheduling the appointment, we will verify that the in-person meeting is necessary, the individual is well enough to attend and has not been exposed to any illnesses, the rooms and door knobs are wiped down, hands are sanitize and that a “warm hello” will take the place of a handshake. For potential clients, we will do what we have always done: carefully review their matter prior to scheduling p an in person meeting. We’ve always protected our clients, and we will continue to do so in this challenging time.

For more information on what to do to protect yourself, the CDC’s guidance can be found here. Symptoms for COVID-19 are found here. For information on our private setting, see here.

Thank you for your cooperation and support.

Does my immigration status affect my right to benefits?

Immigration and Benefits?

It is the law in North Carolina that all workers, even undocumented workers, have a right to file for workers’ compensation benefits.  Rivera v. Trapp, 135 N.C.App. 296, 519 S.E.2d 777 (1999).

What happens if an injured worker is not able to return to work because of their immigration status?


In North Carolina, if an undocumented worker was able to find work before their injury despite their immigration status, the assumption is that their injury is preventing them from a return to work, not their immigration status.  Gayton v. Gage Carolina Metals, Inc., 149 N.C.App. 346, 351, 560 S.E.2d 870, 874 (2002).

If you have experienced a job-related injury that makes it impossible for you to return to work, your immigration status should not keep you from receiving workers’ compensation benefits.  If you can present proof that you cannot find a new job because of your injury, your employer will have to provide you with benefits even if your immigration status was a factor in your job search.

It is important to remember that worker’s compensation claims can be complex.

For more information about how we can help, please call Brian Elston Law at 828.575.9700 to schedule a consultation today.

(The information above is is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Brian Elston Law (or their own legal counsel) regarding any specific legal issues. Brian Elston Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.)

Brian Elston Law announces plans to relocate to Patton Parker House in 2017

Brian Elston Law is pleased to announce that it is relocating to the  Patton Parker House effective January 1, 2017.  The historic house is located at 95 Charlotte Street near downtown Asheville, NC.




The Patton Parker House is an ideal fit for Brian Elston Law’s mission and its clients.  As an experienced workers’ compensation attorney and personal injury lawyer, Brian Elston understands that an injury at work or due to the negligence of another effects more than just the injured, but also their husband, wife, son, or daughter.  The firm appreciates that being injured can put families through a very stressful time, even jeopardizing their own home.  In addition, choosing an attorney to fight is more than just a business decision, but involves trusting someone with a once-in-a-lifetime legal matter.  The firm looks forward to continuing to fight to protect the rights of the injured and their families and welcomes them to the Patton Parker House.




The Patton Parker House is conveniently located off of Charlotte Street, which can be accessed off of I-240 in Asheville.  The House provides ample parking in the front and rear, and is handicap accessible.




The Patton Parker House, originally built in 1868, will showcase its rich history.  Listed on the National Register of Historic Places and part of the Chestnut Hill Historic District,  the house was built by Thomas W. Patton, a Civil War hero who rose to the rank of captain.




Patton served as Asheville mayor, Buncombe County commissioner and county tax collector. His efforts included trying to bring electricity to parts of the city and county, as well as helping local citizens in their day to day affairs. He returned to military service as a volunteer officer during the Spanish-American war.  Patton also hosted a group of civic-minded women in November 1894 in support of women’s right to vote. The meeting launched the North Carolina Equal Suffrage Association and the campaign for voting rights for both sexes. His descendant, Mary Toole Parker, helped make Asheville’s YWCA the first integrated chapter in the South.




The home was purchased by Attorney Jim Siemens in 2015, ensuring the survival of a city landmark for future generations.  “It turned out that Jim’s proposal was the most sensitive to the integrity of the house. We think that a professional use is the best use to keep the historic fabric” according to Jack W.L. Thomson, executive director of the Preservation Society (Asheville Citizen Times, November 2015).




Brian Elston Law will be sharing the House with Siemens Family Law Group, an established firm devoted to family law, that handles all matters that rise from the dissolution of marriages and domestic partnerships.




Pictures courtesy of Pack Memorial Library:









Circa 1901 Picture of Parker Patton House

Circa 1901 Picture of Patton Parker House

Patton Parker House


I was hit by a drunk driver, does that make a difference in my case?

I was hit by a drunk driver, does that make a difference in my case?

Yes. If you were hit by a drunk driver, then you may be entitled to recover “punitive damages.” Punitive damages can be awarded when the other driver’s actions were to such a degree, they can be classified as carelessness and recklessness, more than just ordinary negligence. Courts have held that the intentional act of driving while impaired is sufficiently reckless to warrant punitive damages. Ivey v. Rose, 94 N.C.App. 773, 776, 381 S.E.2d 476, 478 (1989).

However, punitive damages are not automatic. There has to be other circumstances beyond mere intoxication in order to award punitive damages. Howard v. Parker, 95 N.C.App. 361, 365, 382 S.E.2d 808, 810 (1989).

If you were hit by a drunk driver, or a driver that was charged with DWI/DUI, contact my office to review your case to see if you could be entitled to punitive damages.

What if you were hit by a driver that was drinking, but not charged with driving while impaired, could you be entitled to punitive damages?

Yes, but it depends on the circumstances. Take a look at the cases below to get an idea of what cases an a court would allow a jury to consider the issue of punitive damages.

  • Driver fell asleep while driving and did not wake up until after his vehicle rear-ended victim’s car. The defendant driver conceded that he had consumed two beers and taken three prescriptions drugs prior to the incident. After the crash, the defendant driver went to a nearby house where he called the police. The police picked up the defendant and returned him to the scene and the state trooper gave defendant an Alco-Sensor test, which indicated defendant’s blood-alcohol level was below the legal limit. The Court of Appeals allowed the issue of punitive damages to go forward. Byrd v. Adams, 152 N.C. App. 460, 462, 568 S.E.2d 640, 642 (2002).
  • Driver caused a collision after consuming two twelve ounce beers and fled the scene to avoid taking the Breathalyzer. Driver spent the entire night at a hotel before contacting police, and no blood alcohol content was ever obtained.   Court of Appeals allowed the issue of punitive damages to go forward. Eatmon v. Andrews, 161 N.C. App. 536, 588 S.E.2d 564 (2003).

If you were hit by a driver that was drinking, contact my office and we can discuss whether you may be entitled to punitive damages.