The Gods Must Be Crazy!

Workers' CompensationIn the almost already impossible realm of workers comp there is an area of case in law that allows the insurance carrier to remain not liable for compensation if the injury arose ouT of an "Act of God," unless the employment exposes the injured worker to a "greater risk of injury from an act of God than ordinarily applies to the general public" Section 406.032(1(E)

By the term "act of God" as used herein is meant any accident that is due directly and exclusively to natural causes without human intervention and which no amount of foresight, pain or care, reasonably exercised, could have prevented. The act must be one occasioned by the violence of nature, and all human agency is to be excluded from creating or entering into the cause of the resulting mischief. The term implies the intervention of some cause not of human origin and not controlled by human power. [Emphasis added]. Transport Insurance Co. v. Liggins, 625 S.W.2d 780, 782-83 (Tex. App.-Fort Worth 1981, writ ref'd n.r.e.).

What does this mean? The Appeals Panel (case law) has determined that it is up to the Administrative Law Judge to decide it what the injured worker was doing for his or her employment exposed the worker to a greater risk of injury from the act of God than the general public.

Insect bites, icy road conditions, slip/falling in water from a rain storm, in most cases, are not considered an act of God for purposes of liability on an insurance carrier. Getting struck by lighting, leaving the office to beat a bad storm when you are hit by a tornado are examples where the carrier would not be liable. The circumstances place you in the same danger as the general public, ie being outside in bad weather, or trying to get home like the rest of the general public.

I do not see these types of claims often, but in the recent months, there have been hurricanes, earthquakes, fires and floods, and its easily foreseeable that there are employees that get injured while at work due to these events. The injured worker has the burden of proof to establish that the employment exposes them to a greater risk from the act of God than ordinarily applies to the general public. This is a question of fact for the Administrative Law Judge to resolve. APD 002641

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To all the first responders and the volunteers, including Bailey & Galyen's own Travis Wyatt who joined his father and uncle in rescue efforts to those stranded during Hurricane Harvey floods...we thank you! Be safe, but just in case...email or call our offices at 844-402-2992 regarding any questions you may have regarding a work related injury.

Class Action Suit filed in Equifax Matter

Equifax Data BreachDALLAS, Oct. 27, 2017 -- Complaints were filed on September 19, 2017, in federal district courts in Mississippi and Texas as the result of a data breach at Equifax, Inc., and Equifax Information Services, LLC, providers of credit reporting services and collectors and compilers of sensitive and confidential personal financial information for hundreds of millions of American consumers and businesses. The lawsuit, brought by Samantha Woods and Joshua Woods, on behalf of all persons whose personal information may have been stolen, alleges that:

  • Equifax breached its duty to use reasonable care to protect sensitive credit and financial information

  • Equifax willfully violated the provisions of the Fair Credit Reporting Act

  • Equifax engaged in negligent violation of the provisions of the Fair Credit Reporting Act


The complaint seeks declaratory relief, asking that the court require Equifax to implement and maintain reasonable security measures. The complaint also asks for compensatory and punitive damages.
The actions filed in Texas and Mississippi have been filed as class actions. Accordingly, the plaintiffs have asked the court to certify a class of similarly situated individuals.

Your Rights in a Class Action


A class action is a special type of lawsuit that allows parties with similar claims to pool resources and consolidate claims, so that multiple cases don't have to be prosecuted simultaneously in jurisdictions across the country. In a class action, all parties who qualify for the class are collectively represented by a single member of that class. The total losses of all class members are consolidated into that one proceeding and any damages recovered are allocated to all qualified class members.

A class action offers a number of advantages over traditional litigation:

  • Class action litigation typically reduces the overall costs of litigation

  • A class action can allow parties with smaller damage amounts to participate and receive some type of damage award, without incurring the costs of a separate lawsuit

  • A class action can provide the impetus to change wrongful practices

  • A class action avoids the problems that arise when different courts return different verdicts


The lawsuits were filed by Stephen C. Maxwell, of the Bailey & Galyen Law Firm in Bedford and Fort Worth and Shane F. Langston, of Langston & Langston, PLLC, in Southlake, Texas.

Contact:
Cagney McCormick
Managing Attorney
CMcCormick@galyen.com
(855) 446-9997
www.EquifaxLawFirm.com
www.EquifaxAbogados.com

HAS YOUR PERSONAL INFORMATION BEEN EXPOSED BY THE EQUIFAX DATA BREACH?

CLICK HERE TO FIND OUT NOW »



The Uninsured and Underinsured Motorists Law in Texas

Personal Injury LawWhen you are hurt in motor vehicle accident, one of your first responses is to gather information from the at-fault driver about automobile insurance coverage. But what are your options if the other driver either doesn't have enough insurance to cover your losses, or perhaps has no insurance at all? Statistics show that as many as one of every five drivers on the road in Texas don't have a valid policy of insurance.

The Texas legislature, aware of the high number of people operating motor vehicles without insurance, has required that any automobile insurer doing business in the Lone Star State offer uninsured/underinsured (also known as UM/UIM) coverage as a standard part of a personal automobile insurance policy in Texas. Under the law, limits of coverage are set at a minimum, which is now $20,000/$40,000/$15,000. A policyholder may increase coverage amounts for an additional premium.

Such a rider would pay up to $20,000 to a specific person and a total of $40,000 for all injured persons and a maximum of $15,000 for all property damage. The bodily injury portion is specifically intended to compensate or reimburse injured persons without deductibles. It provides broad coverage, compensating victims for past and future medical bills, pain and suffering, mental anguish, permanent scarring and disfigurement, lost wages or earning capacity and even funeral expenses. The property damage component will reimburse the costs of repair of a vehicle, up to the fair market value of the automobile.
It's important to understand that the Texas UM/UIM laws will provide coverage if you are injured by a hit-and-run driver. The statute specifically defines "uninsured motorist" to include "unidentified motorist." The only requirement, under the law, is that the injured party report the accident to police in a timely manner.

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At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas Personal Injury Attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.

The New Second Chance in Texas: Non-Disclosure of DWI Convictions

Criminal LawIf you've made a single mistake in Texas, including getting behind the wheel after a little too much celebration with friends, a conviction can haunt you for years. You may find it difficult to get the job you really want, to find suitable housing, or to even get credit. Under a new law in Texas, which went into effect on September 1, 2017, many Texans will get a new second chance.

Under the new statute, House Bill 3016, a person convicted of many nonviolent misdemeanors, including DWI, can ask the court for an order of nondisclosure. The amendment to the law also changes the waiting period for nondisclosure of some offenses. Under the revised law, if the misdemeanor was punishable only by a fine, you can petition the court for an order of nondisclosure as soon as you pay the fine. If there were additional sanctions, you must wait two years from the completion of any sentence before you can seek nondisclosure.

An order of nondisclosure essentially seals a criminal record, so that it cannot be viewed by the public. Accordingly, in most contexts, the person whose record is sealed may deny the conviction without consequence. Such records always remain accessible to law enforcement officers, state and federal officials and government employers.

Under the new law, a person may seek nondisclosure of a first-offense DWI, provided the blood alcohol concentration was less than .15, and the following conditions have been met:

  • The petitioner has completed any community service requirements or incarceration

  • The petitioner has paid all fines and costs, including restitution, if ordered

  • The petitioner has not been convicted of or placed on deferred adjudication for any other non-traffic offense

  • Any required waiting period has expired



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At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas criminal defense attorney, contact us online or call us at 844-402-2992. We will take your call 24 hours a day, seven days a week.

Fake News

Estate PlanningThe term “Fake News” is thrown around a lot these days. It usually means the person using it is not happy about something that has been reported. It is frightening to those of us who see a free press and an informed citizenry as essential to our form of government. The gossip mongers with internet access appear to have as much influence as legitimate press, but without the training, experience, or code of ethics. In Estate Planning and Probate we deal with our share of bad information and miscommunication. It is true that half truths, like half bricks, can do a lot of damage.

Bad information about Estate Planning and Probate can be motivated by profit. If I want to sell you a product with a high mark up, I may be tempted to up sell you from what you need, to what is most profitable. The most common sales technique is to speak of DANGERS like taxes, lack of privacy, and greatly exaggerated costs of probate. The person promoting these products has a one size fits all approach and the one they sell is the most profitable for them, not necessarily the best plan for you.

Another misleading form of information is the national expert who paints with a broad brush. The law of each of the fifty States is different. The challenge for the big time presenter is that they can’t take the time to listen to you or analyze the factors that will impact your estate plan where you live. They may have valuable insights about your finances, but they almost always overreach.

In addition to the profiteer and the over generic financial guru, your neighbor may be unknowingly publishing fake news. Recently, the forms for Statutory Durable Powers of Attorney have changed. While it would be wise to review your documents at least every five years or anytime you experience a big life event, it is not necessary to redraft all your documents based on these changes. I have received numerous calls based on bad information from a television or radio personality over the years, but friends and neighbors frighten folks with fake news in ways that dwarf the talking heads in the media.

So, what can you do to combat fake news in this area of your life?

Pick up the phone when you have a question and talk to someone who practices in this area of the law. Mr. Bailey answers numerous questions everyday and loves to hear the relief in the voice of the caller when they get to hear accurate answers based on their facts, in their jurisdiction, from a trusted source.

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To set up a free initial consultation, contact us online or call us at 844-402-2992. For your convenience, we answer our phones 24 hours a day, 7 days a week. We will meet with you.

MEDIATION

Family LawAs I am sitting here today in Mediation it got me to thinking about what a large role it plays in the domestic or family law litigation. About 30 years ago the legislature passed a law encouraging the use of alternative dispute resolution methods in family law cases. One of those methods is Mediation. Most divorces are referred to mediation and the overwhelming majority of them are settled in mediation. Lots of people have heard of Arbitration such as a forced arbitration clause in a credit card dispute or with Ezekiel Elliot’s ongoing dispute with the NFL.

Arbitration is when the parties present their case to an arbitrator who decides the evidence and renders a decision much the same as a judge. However, Mediation is different because the mediator DOES NOT render a decision. Instead the mediator simply assists the parties find areas of agreement or “common ground.” If the parties are able reach agreement the mediator files something with the court that the parties reached agreement. If the parties do not reach agreement the mediator files something with the court that the parties did not reach agreement. The mediator cannot be subpoenaed to testify.
One of the great things about mediation is that it is confidential. Rather than airing your laundry for the whole world to see in a courtroom you meet privately with your attorney and a mediator and resolve your dispute. Another great thing is you can resolve your case much quicker. According to an article in the Fort Worth Star Telegram last week there are over 60,000 divorce or child cases filed each year in Tarrant County. What ends up happening is they sit on a court’s docket often times for a year as there simply are not enough hours in the day to hear them all.

Perhaps my favorite thing about mediation is that it allows the parties to craft their own solution. A judge is pretty limited in what they can do. They must strictly follow the guidelines in the Family Code. The parties are not bound as tightly. They can decide what is most important to them. They can decide how to craft their solution. I try and most attorneys and judges I know try very hard to do a good job. But no matter how hard we try we will never know your life and your situation as well as you do. I liken mediation versus litigation as the difference between having someone give you a blue Toyota Camry (litigation) or giving you $20,000 and telling you to pick out the car that works best for your needs (mediation). Unless you happen to want a blue Toyota Camry the second option will work better for you.

When hiring an attorney make certain they are familiar with and make mediation a regular part of their practice. I can promise you, you will be happier with the result.

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To set up a free initial consultation, contact us online or call us at 844-402-2992. For your convenience, we answer our phones 24 hours a day, 7 days a week. We will meet with you evenings or weekends upon request.

Trump Department of Defense Slows the Path to Citizenship for Military Members

ImmigrationBeginning Friday, October 13, 2017, expedited naturalization through Military service in the US Armed Forces is no longer available for certain foreign-born recruits.

In order to apply for expedited naturalization, a U.S. lawful permanent resident (green card holder) must obtain a “certification of honorable service.” Previously, green card holders were allowed to enlist and enter basic training while background checks were pending. The certification was then given after just one day of service in the Military.

The new policy change increases security vetting for all foreign-born recruits. The security clearance process will take over a year to complete and the Department of Defense estimates that approximately 30% of those enlisted in the military will fail the new, increased background checks. What’s more is the enlistee may not attend basic training until the background clearance is complete. Also, the new policy states that no certification of honorable service will be issued until he foreign-born recruit completes basic training plus 180 consecutive days of service in the Military or one year of service in the reserves.

For lawful permanent residents who enlisted in the Military prior to this change and received a certification of honorable service, but whose background checks are still pending, their certification will be revoked. This causes uncertainty about the future of their current military assignments.

The increased vetting of foreign-born recruits will result in two to three year delays in the naturalization of recruits based on military service.

On October 27, 2017, a U.S. federal judge heard arguments for a group of about 500 foreign-born reservists seeking an injunction of this new policy that revokes their previously-obtained military service certifications.

All of this is despite the fact that it has been shown that lawful permanent residents recruited into the military stay in the military longer than U.S.-born recruits, which is why the Military specifically began to recruit this demographic in the first place. Now, their status hangs in limbo.

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At the law office of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas immigration law attorney, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.

Can I get Worker’s Compensation and SS Disability?

Social Security LawThe short answer is yes. The full answer is yes, but… you cannot receive the full amount of both at the same time. In all but 5 states, if you are receiving Worker’s compensation benefits or SS Disability benefits as a result your Disability benefits will be reduced. (In the 5 states, worker’s compensation is reduced)

How much? The Disability benefits will be reduces so that the entire amount you get from both sources is no more than 80% of the individual’s average current earnings. So if you were hourly or salaried with bonuses, they will look at the monthly average you actually made, and get the 80% from this figure.

Retirement benefits are not offset because typically worker’s compensation would end when the injured worker reaches retirement age. Congress recently updated this to reflect the change in SS, “full retirement” age so there is no gap. Now, instead of ending at 65, worker’s compensation benefits terminate when the worker reaches their, “full retirement” age, instead of a static number.

Please visit our website: www.socialsecuirtyjustice.com or contact one of our Bailey & Galyen offices for additional information.