Fort Worth Injury Lawyer Blog

If you have a fire or someone breaks into your house and you need to file a claim on your homeowner's insurance, you could be in for a long and tedious process if you haven't done your home work properly, particularity with respect to your items of personal property.

For personal property claims, known as a "contents" claims, one of the first things you have to do is prepare a contents inventory of your property for your insurance company. Taking pictures of your property before having to make a claim is highly recommended. If possible take photographs of each room and, in particular, photograph expensive items and/or items that are special to you. Also, keeping an inventory of all your property is good idea, but can be time consuming. The failure to do these things before you have a claim may result in weeks or months of work for you to properly document your loss and give the insurance company an excuse for not promptly paying your claim.

If your property was lost in a fire, most insurance policies require the property owner to take steps to protect the remaining property from further damage. These steps should be taken as soon as possible. You need to make arrangements to have any openings in the structure covered in order to secure your property from further damage or theft. It is not recommended that you dispose of any damaged property until your claim is settled, except for health and safety reasons.

The next step you should take is to determine how you are going to proceed with the settlement of your claim. Any items that are damaged, even if only slightly, should be listed on the contents inventory sheet. Identify items with a model number and/or brand name where possible. If items such as electronics have manufactured dates on them, list the date. This is the importance of keeping an inventory of your property before you have a loss.

If you didn't keep an inventory, start your contents list with one room at a time. Begin at one wall and work your way around the room, listing all of the items damaged or lost. If possible make notes to indicate where items are located will help to find the item when the insurance company needs to verify the item.

Once you have made a list of all of the contents items that were damaged or stolen you then have to price each item. The internet has made pricing of most items easier; but it is still time consuming. If you know that you pay an average of price for certain items, then use that as the price for all those items.

Do not put down the price that you paid to purchase an item on sale. It does not matter what you paid for an item. If your purchased Replacement Cost Coverage, the Replacement Cost Value (RCV) of an item is based on what it will cost you to replace a particular item at today's prices. Typically, the cost of replacing an item is greater than what you paid for it. You don't have to wait to find the items on sale again.

Often insurance companies will require that you indicate the purchase date of the items in the contents inventory, because the insurance company wants you to age the item. The age of the item is used in order to apply Depreciation to arrive at the Actual Cash Value (ACV) of the item. Depreciation is also is used to take into account for usual wear and tear of the item. The Replacement Cost Value (RCV) of an item minus the Depreciation equals the Actual Cash Value (ACV) for the item that will be initially paid to you.

The amount of Depreciation applied to an item does not have to be based on the age of the item. The condition of an item may not reflect the age of the item. Items that are not used often should not be depreciated at the same rate that items used every day are depreciated. Also, keep in mind that there are items that might maintain or even increase in value such as fine furniture, antiques, art or jewelry.

After you have presented your claim and received payment based on the Actual Cash Value (ACV) of your property, if you have Replacement Cost Coverage, you will have money to start to repurchase the lost or stolen items. Under the Replacement Cost provisions of most policies, you are required to purchase the items damaged or lost and give the receipts for the purchase to your insurance company. After a review to insure that the items you purchased are of the same type and quality as those that were lost or damaged, you will then receive an additional payment for the cost to replace the item.

Your insurance policy may require you to advise your insurance company of your intent to make an additional claim under the replacement cost provision of your policy within a certain number of days, typically 180 days from the date of the loss. Not 180 days from the date you receive the Actual Cash Value (ACV) payment. Make sure that you notify your insurance company, in writing, of your intent to make a claim for the depreciation withheld from your initial Actual Cash Value (ACV) payment within the time frame required in your policy.

At the Law Office of Stephen O'Rear, P.C. we help people with insurance claims.

DISCLAIMER:
Information in this article is proved for general informational and educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes frequently. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. This firm does not represent any person unless and until it is retained and agrees to provide such representation in writing.

Adverse possession is a legal doctrine that allows a person to lawfully claim ownership to real property originally owned by another person. The statute governing the rules of adverse possession is Texas Civil Practices & Remedies Code Sec.16.021 et seq. ("CPRC"). The statute defines adverse possession as "an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person." A person seeking to establish adverse possession must show that they actually do possess the property. The mere belief of a right to possess it is not enough. The person must also continuously possess the property for the requisite period of time and that person must peaceably and intentionally assert a claim of ownership to the property to the exclusion of the rights of the original owner. Possession shared with or with the consent of the original owner is not enough. However, the doctrine of adverse possession does not apply to public lands or against a governmental entity.

The statute sets forth rules and conditions under which the doctrine applies. These must be conclusively met. The statute is drafted in such a way as to require an affirmative act by the original owner to reclaim the property within certain periods of time. These are known as statutes of limitation. Once an owner discovers the presence of a potential adverse possessor or is otherwise put on notice of an adverse possession claim, the owner must timely act to defeat the adverse possessor's claim within the period prescribed by one of the statutes of limitation or lose title. If the original owner is prevented from regaining possession of the property by the person claiming title by adverse possession, then owner must file what is known as a trespass to try title suit in order to reclaim possession and establish legal ownership. If the original owner does not take timely action to regain possession within the statute of limitations period, his claim of ownership of the property will be barred and the adverse possessor will considered the owner of the property.

The most commonly used statutes of limitation to establish a claim for adverse possession are sections 16.024, 16.025 and 16.026 of the CPRC.

Under Sec. 16.024 -The Three-Year Statute, the possessor must actually have title (i.e., a deed as part of a regular chain of title) or at least "color of title" which refers to a claim of title that has some reasonable basis but for some legitimate reason does not fit within the usual chain of title. So, the possessor must be able to produce some conveyance or title document to support his claim if he is to successfully assert an adverse possession claim under the three-year statute.

Under Sec. 16.025 - The Five-Year Statute, the person must cultivate, use, or enjoy the property, pay applicable taxes on the property and claim the property under a duly registered deed during there five year period. This statute does not apply to a claim based on a forged deed or a deed executed under a forged power of attorney.

Under Sec. 16.026 - The Ten-Year Statute, a deed or other memorandum of title is not necessary so long as the elements of adverse possession are met. That is the person must simply cultivate, use, or enjoy the property for the ten year period. Without a title instrument, peaceable and adverse possession under this section is limited to 160 acres, including improvements, unless the number of acres actually enclosed exceeds 160. If the number of enclosed acres exceeds 160 acres, the adverse possession extends to the property actually enclosed.

Two other sections, Sec.16.027 and Sec.16.028 of the CPRC, are used less frequently. The first provides a 25 year statute of limitation regardless of whether the person is or has been under a legal disability. The second allows a 25 year statute based on a title instrument, even if that instrument is void.

These statutes of limitation do not include any periods of disability on the part of the original owner (e.g., he was under 18 years old, of unsound mind, or serving in the armed forces in time of war). However, these statutes of limitation may be "tacked" or combined by various successive possessors of the property so long as there exists what is known as privity of estate or a direct legal connection between these persons.

Finally, Sec. 16.034 of the CPRC provides that the prevailing party in a suit for possession of real property may receive an award of costs and reasonable attorney's fees.

At the Law Office of Stephen O'Rear, P.C. we help people involved in real estate disputes.

If you car is damaged in a accident and you file a claim with your insurance company, you may be told that you have to have the vehicle repaired at a certain facility or that you must use certain types of parts to repair the vehicle. If this happens to you, your insurance company could be in violation of Sections 1952.301 through 1952.307 of the Texas Insurance Code.

These sections provide that under an automobile insurance policy that is delivered, issued or renewed in this state, an insurer may not directly or indirectly limit the insurer's coverage under a policy covering damage to a motor vehicle by specifying the brand, type, kind, age, vendor, supplier, or condition of parts or products that may be used to repair the vehicle; or limiting the policy holder from selecting a repair person or facility to repair damage to the vehicle.

These sections also state that, in settling a liability claim by a third party against an insured for property damage claimed by the third party, an insurer may not require the third-party claimant to have repairs made by a particular repair person or facility or to use a particular brand, type, kind, age, vendor, supplier, or condition of parts or products.

These sections prohibit the insurer, an employee or agent of the insurer, an insurance adjuster, or an entity that employs an insurance adjuster from:
(1) soliciting or accepting a referral fee or gratuity in exchange for referring a policy holder or third-party claimant to a repair person or facility to repair the damage;
(2) stating or suggesting, either orally or in writing, to a policy holder that the policy holder must use a specific repair person or facility or a repair person or facility identified on a preferred list compiled by the insurer for the damage repair or parts replacement to be covered by the policy; or
(3) restricting the right of a policy holder or third-party claimant to choose a repair person or facility by requiring the policy holder or third-party claimant to travel an unreasonable distance to repair the damage.

Under these sections an insurer may not prohibit a repair person or facility from providing a policy holder or third-party claimant with information that states the description, manufacturer, or source of the parts used and the amounts charged to the insurer for the parts and related labor.

These sections provide that a contract between an insurer and a repair person or facility, including an agreement under which the repair person or facility agrees to extend discounts for parts or labor to the insurer in exchange for referrals by the insurer, may not result in a reduction of coverage under an insured's automobile insurance policy.

At the time a motor vehicle is presented to an insurer, an insurance adjuster, or other person in connection with a claim for damage repair, the insurer, insurance adjuster, or other person must provide to the policy holder or third-party claimant notice of the provisions of these sections.

A policy holder, third-party claimant, or repair person or facility may submit a written, documented complaint to the Texas Department of Insurance to report a violation of these sections.

At the Law Office of Stephen O'Rear, P.C. we help people with insurance disputes.

Chapter 542 of the Texas Insurance Code requires insurance companies to follow certain procedures and meet certain deadlines when it receives, accepts, rejects or pays an insurance claim. The purpose of Chapter 542 is to promptly pay claims made by their insureds. Thus, Chapter 542 only applies to what is known as first party claims. Chapter 542 applies to most types of insurance claims except workers compensation, title insurance and marine insurance as well as a few others.

If an insurance company fails to comply with Chapter 542, it can be held liable for the statutory damages pursuant to Section 542.060 of the Texas Insurance Code which provides that if an insurer that is liable for a claim under an insurance policy is not in compliance with Chapter 542, the insurer is liable to pay the holder of the policy or the beneficiary making the claim under the policy, in addition to the amount of the claim, interest on the amount of the claim at the rate of 18 percent a year as damages, together with reasonable attorney's fees.

However, the amount of the claim used to calculate the statutory damages depends on whether the insurance company tendered any partial payment of the claim. If the insurance company did not tender any partial payment, statutory damages are calculated on the full amount of the jury verdict. If the insurance company tenders a partial payment then statutory damages are calculated on the difference between the amount of the claim as determined by the jury and the amount tendered.

Because the 18 percent is a yearly rate of interest, the corresponding monthly rate would be 1/12 of 18 percent or 1.5 percent per month. The daily rate is 1/365 of 18 percent or .0005 percent per day. This means that an insurance company who missed the deadline by one day would only be liable for .0005 percent interest on the claim as opposed to the full 18 percent.

Also, the statutory damages are computed as simple interest as opposed to compound interest. Simple interest is calculated as follows: Principle (the amount of the claim) x the applicable interest rate (yearly, monthly or daily) x the relevant time period. For example, if the insurance company is found liable for a $100,000.00 claim which it paid 3 years late, the statutory damages would be $100,000.00 x 18% x 3 = $54,000.00. Texas law is unclear whether multiple violations of the Chapter 542 deadlines can result in multiple statutory damage awards. Most commentators believe that courts will probably limit statutory damages to one award per rejected claim.

The statutory damages begin accruing on the date the insurance company violates the statute and end on the date the court enters a judgment.

At the Law Office of Stephen O'Rear, P.C. we help people with their insurance claims.

If you hire a contractor to do improvements to real property or you are a subcontractor hired to work on real property, you should be aware that the contractor and the subcontractor is entitled to prompt payment for their services. Prompt payment to contractors is required by law in Chapter 28 of the Texas Property Code.

Chapter 28 provides that if an owner or a person authorized to act on behalf of the owner receives a written payment request from a contractor for an amount that is allowed to the contractor under the contract for properly performed work or suitably stored or specially fabricated materials, the owner must pay the amount to the contractor, less any amount withheld as authorized by law, not later than the 35th day after the date the owner receives the request for payment.

Additionally, a contractor who receives a payment from an owner in connection with a contract to improve real property must pay each of its subcontractors the portion of the owner's payment, including interest, if any, that is attributable to work properly performed or materials suitably stored or specially fabricated as provided under the contract by that subcontractor, to the extent of that subcontractor's interest in the owner's payment. This payment required must be made not later than the seventh day after the date the contractor receives the owner's payment.

Furthermore, a subcontractor who receives a payment from a contractor in connection with a contract to improve real property must pay each of its subcontractors the portion of the payment, including interest, if any, that is attributable to work properly performed or materials suitably stored or specially fabricated as provided under the contract by that subcontractor, to the extent of that subcontractor's interest in the payment. This payment must be made not later than the seventh day after the date the subcontractor receives the contractor's payment.

However, if a good faith dispute exists concerning the amount owed for a payment requested or required under a contract for construction of or improvements to a detached single-family residence, duplex, triplex, or quadruplex, the owner, contractor, or subcontractor that is disputing its obligation to pay or the amount of payment may withhold from the payment owed not more than 110 percent of the difference between the amount the obligee claims is due and the amount the obligor claims is due. A good faith dispute includes a dispute regarding whether the work was performed in a proper manner.

If a good faith dispute exists concerning the amount owed for a payment requested or required under a contract for construction of or improvements to real property, excluding a detached single-family residence, duplex, triplex, or quadruplex, the owner, contractor, or subcontractor that is disputing its obligation to pay or the amount of payment may withhold from the payment owed not more than 100 percent of the difference between the amount the obligee claims is due and the amount the obligor claims is due. A good faith dispute includes a dispute regarding whether the work was performed in a proper manner.

A notification that a good faith dispute for payment exists must include a list of specific reasons for nonpayment. If a reason specified includes labor, services, or materials provided by a subcontractor that are not provided in compliance with the contract, the subcontractor is entitled to a reasonable opportunity to cure the listed items or offer a reasonable amount to compensate for listed items that cannot be promptly cured.

An unpaid amount required under Chapter 28 begins to accrue interest on the day after the date on which the payment becomes due. The unpaid amount bears interest at the rate of 1-1/2 percent per month. Interest on an unpaid amount stops accruing on the earlier of the date of delivery; the date of mailing, if payment is mailed and delivery occurs within three days; or the date a judgment is entered in a legal action brought under Chapter 28. In any legal action brought under Chapter 28, the court may award costs and reasonable attorney's fees as the court determines equitable and just.

If an owner fails to pay the contractor the undisputed amount within the time limits provided by Chapter 28, the contractor or any subcontractor may suspend contractually required performance the 10th day after the date the contractor or subcontractor gives the owner written notice informing the owner that payment has not been received and stating the intent of the contractor or subcontractor to suspend performance for nonpayment.

A contractor or subcontractor who suspends performance as is not required to supply further labor, services, or materials until the person is paid the amount due under Chapter 28, plus the costs for demobilization and remobilization and is responsible for any damages resulting from suspending work if the contractor or subcontractor has not been notified in writing before suspending performance that payment has been made or that a good faith dispute for payment exists.

At the Law Office of Stephen O'Rear, P.C. we help property owners, contractors and subcontractors with payment disputes.

The Attractive Nuisance Doctrine is an exception to premises liability claims brought by trespassers. It is typically applied to young children who trespass onto property as the result of some attraction on the premises. Under the Attractive Nuisance Doctrine, the premises owner owes the trespassing child the same legal duties it would owe to a business invitee. To establish a claim under the Attractive Nuisance Doctrine, the Plaintiff must prove the following:

(1)The child Plaintiff meets the definition of trespasser;
(2) The Defendant was an owner or possessor of the premises;
(3) The Defendant knew or should have known there was an artificial condition on the premises and that children were likely to trespass in the area around the artificial condition;
(4) The Defendant knew or should have known or realized the artificial condition posed an unreasonable risk of harm to trespassing children;
(5) The Plaintiff, due to youth, did not discover the artificial condition, or realize
the risk involved with it, or realize the risk involved in coming within the area made dangerous by the condition;
(6) There was a benefit to Defendant in maintaining the artificial condition and the burden of eliminating the danger were slight when compared with the risk to children;
(7) The Defendant breached its duty of exercising reasonable care by failing to eliminate the danger or otherwise protect the children; and
(8) The Defendant's breach proximately caused the Plaintiff's injury.

To be a trespasser, the child must have entered the Defendant's premises without permission or authority, and for the child's own benefit.

Artificial conditions do not include naturally occurring conditions such as lakes, rivers, trees, or creeks that have not been created or altered by the premises owner and these types of conditions do not obligate the premises owner to take measures of warning or protection. Only premises conditions that are artificially created and maintained can give rise to a claim under the Attractive Nuisance Doctrine. However, to establish liability, only the Defendant's express or implied knowledge of the artificial condition on the premises has to be be proven. It is not necessary to show that the Defendant created the artificial condition in question. Examples of artificial conditions to which the Attractive Nuisance Doctrine has been applied include: electric transmission towers, excavations filled with water, swimming pools and cement irrigation pipes.

Unless or until the Defendant receives information that would lead a
reasonable person to inquire whether children are trespassing onto his property, the
Defendant does not have an affirmative duty to inspect or inquire whether trespassing is
actually taking place. However, once the Defendant knows, or when a person of reasonable intelligence should know, that children are likely to enter the property, knowledge of the potential for trespassing onto the land will be imputed to Defendant.

The determination as to whether an artificial condition on the premises poses an unreasonable risk of harm depends upon whether a reasonably prudent person would foresee that harm was a likely result of the condition. But certain conditions do not qualify under the Attractive Nuisance Doctrine. For example, some courts have held that the open and obvious danger inherent in playground equipment removes such a condition from the purview of the Attractive Nuisance Doctrine.

Although the Attractive Nuisance Doctrine requires the child Plaintiff to qualify as a trespasser before application, Texas law does not place a specific age requirement for Plaintiff to qualify as a "child." However, despite the absence of an explicit age limit, the majority of the cases in which the Attractive Nuisance Doctrine has been applied, the Plaintiff has typically been a child of not more than twelve years of age.

Regardless of age, it must be proven that the Plaintiff was too young and inexperienced to appreciate the danger of the artificial condition. Factors such as the child's intelligence relative to peers in his age group or whether he suffered from any mental challenges, as well as the latency or hidden nature of the dangerous condition may be considered when assessing the Plaintiff's capacity to recognize and appreciate the danger. However, even in cases where the Plaintiff is either exceptionally intelligent or learning disabled, the child will be required to exercise the judgment of a person of that level of intelligence. Thus, to prove the required incapacity, the child must show that his youth and/or mental development prevented him from discovering the condition, realizing the risk presented by the condition, or realizing the risk in entering the area made dangerous by the condition.

The Plaintiff must also prove that there was a benefit to Defendant in maintaining the
artificial condition as a legitimate use of his land and that the burden of eliminating the
danger were slight when weighed against the severity of the risk to children posed by the artificial condition. Examples of situations where the severity of danger greatly outweighed the burden imposed on the premises owner to safeguard the danger include a case where a child drowned in a cattle dipping vat that had not been used for more than two years and could have been covered and sealed relatively inexpensively or where a Defendant could have easily erected a fence around an oil field pumping unit to deter children from climbing on it.

The duties owed to Plaintiffs under the Attractive Nuisance Doctrine are the same duties that are owed to invitees; that is, the duty to warn of or eliminate the dangerous condition. In order to recover, the Plaintiff must prove that Defendant's breach of that duty proximately caused the Plaintiff's injury. As with other negligence claims, the statute of limitations for claims governed by the Attractive Nuisance Doctrine is two years.

At The Law Office of Stephen O'Rear, P.C. we help people who have been injured due to the negligence of others.

The Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA), which
became effective on July 1, 2009, made significant changes to the Medicare Secondary Payer Statute (42 U.S.C. § 1395y). Particularly, Section 111 of MMSEA imposes strict reporting requirements on liability insurance plans, no-fault insurance plans and workers' compensation plans. These plans are now required to submit information about settlements of personal injury claims to The Center for Medicare and Medicaid Services (CMS). Penalties for non-compliance can be a high as $1,000 per person for each day of noncompliance.

The CMS takes the position that any settlement of a personal injury claim that extinguishes liability for future medical expenses in a claim against a primary payer represents a situation in which "payment has been made" for an item or service otherwise covered by Medicare. Thus, Medicare should not be required to provide future coverage for those items or services until the payment has been exhausted on future medical expenses recovered for the injury. This is true whether the primary payer is a worker's compensation plan, an automobile or liability insurance plan, or no fault insurance (including self-insured plans). CMS requires that its interests as secondary payer be "reasonably considered" in the settlement of any claim for medical expenses against a primary payer.

Several years ago, the Center for Medicare and Medicaid Services (CMS) published a memo outlining the policies and procedures for dealing with Workers' Compensation Medicare Set-Aside Arrangements (WCMSA). The basic premise of a WCMSA is taken from the Medicare Secondary Payer statute. The Medicare Secondary Payer (MSP) statute sets forth Medicare's status as secondary payer to any claim covered by a workers' compensation carrier or a self-insured employer. If a workers' compensation claim is settled and the settlement includes compensation for future medical expenses, then CMS refers to the case as a "WC commutation case." Medicare takes the position that by releasing the workers' compensation carrier from liability for future medical expenses, in reality, the settling person is transferring the liability for coverage of such future medical expenses to the Medicare program. Therefore, the CMS requires that any money paid to settle the future medical must be spent on medical expenses related to the injury before Medicare will resume coverage.

With a Medicare Set-Aside (MSA) arrangement, a portion of the workers' compensation claim settlement is set-aside and applied to future medical expenses which would otherwise be covered by Medicare. Only after this amount has been depleted from the MSA will Medicare begin to pay for medical care related to the injury. However, it is important to know that MSAs are not specifically required by federal law. The CMS has simply indicated that an MSA is its preferred way of "protecting Medicare's interest."

It is generally known that if a case is settled for a Medicare beneficiary and Medicare has covered injury-related medical expenses, then Medicare will have a claim to be reimbursed for any past medical bills that are part of a recovery from the responsible party. In the past Medicare was not asserting a claim for payment of future medical expenses outside the context of a WC commutation case. This is no longer the case. Medicare points to the MSP to support its policy that Medicare retains its secondary payer status after the settlement of any personal injury claim where the settlement or judgment extinguishes liability for future medical expenses.

The determination of how much money to place in the MSA remains a complicated issue that requires consideration of factors such as, life care plans, the "rated age" of the Beneficiary, and evaluation of the documentation that projects expenses for Medicare covered services and services not covered by Medicare.

The CMS guidelines require that all injury related medical expenses, including prescription drug costs, be calculated for the claimant's lifetime. The set-aside amount is determined by evaluating the claimant's past course of medical treatment, current condition, the reasonable probability of future medical needs and other factors based upon the claimant's medical history, life care plan, and physician statement. The set-aside amount must be calculated for the claimant's actual life expectancy unless a life insurance company will provide a rated or reduced age due to the claimant's medical condition. The MSA cannot be reduced by the costs related to the establishment of the MSA.

In order for an MSA allocation to be binding on CMS, it must be reviewed and approved. If an allocation is reviewed and approved by CMS, then Medicare will be bound by the MSA allocation and cannot require additional funds from the beneficiary in the future. However, that if CMS rejects the proposed MSA allocation, there is no formal appeal process to contest the rejection. The only alternative is to submit a bill to Medicare and have the bill denied and then pursue the appeals process through the regular administrative appeals process that exists for the denial of any "regular" Medicare billing denial.

Once an agreement is reached on the amount of MSA funding, the administration of the MSA must be handled such that only medical expenses that would be covered by Medicare will be paid from the account. The expertise to supervise the disbursements of the funds for Medicare covered medical expenses requires the knowledge of a medical claims administrator who is experienced in Medicare billing and the codes that Medicare uses to delineate various medical procedures and claims. The Medicare billing codes are difficult and the MSA rules are complex. If a person makes a mistake, the MSA beneficiary risks losing Medicare coverage. CMS requires annual reports for MSA accounts and can also require an MSA audit. If an MSA is out of compliance, the beneficiary will be required to compensate for any MSA deficiencies before Medicare will resume coverage.

The goal in preparing an MSA is to create and fund a trust or agreement with an amount of money that will be used to pay for future Medicare-covered medical care that is related to the injury for which the beneficiary received in a settlement of a claim. Once the money awarded to the beneficiary for future medical expenses is spent on expenses that Medicare would normally cover then Medicare will cover other medical expenses related to the injury. If CMS approved the MSA allocation, and the approved amount is less than adequate to cover costs over the beneficiary's lifetime, then Medicare will begin coverage when the MSA is exhausted. If CMS did not approve the allocation and the MSA is exhausted during a beneficiary's lifetime, Medicare may begin covering settlement-related expenses, but is not required to do so.

Because of the precarious position that a Medicare beneficiary may be placed in if Medicare refuses payment for emergency medical care or other vital treatment, it is extremely important that counsel for any settling beneficiary make sure that these issues are carefully addressed.

Note: The Law Office of Stephen O'Rear, P.C. does not claim to have any special expertise in handling Medicare Set Asides. This article contains a synopsis of the information presented in a paper prepared by Pi-Yi Mayo, Attorney at Law and presented at the State Bar of Texas 4th Annual Damages in Civil Litigation Conference in Dallas, Texas on February 16-17, 2012 and is being posted for informational purposes only.

If you hire a contractor to perform improvements to real property in Texas and a dispute arises as to payment, the contractor may be entitled to enforce a lien against the property to secure payment. However, in order to do so, the contractor must comply with Chapter 55 of the Texas Property Code.

Under Chapter 55, a contractor has a lien if the person labors, specially fabricates material, or furnishes labor or materials for construction or repair in this state of a house, building, or improvement; a levee or embankment to be erected for the reclamation of overflow land along a river or creek; or a railroad; and the person labors, specially fabricates the material, or furnishes the labor or materials under or by virtue of a contract with the owner or the owner's agent, trustee, receiver, contractor, or subcontractor. Certain other persons such as architects, engineers and landscapers also have lien rights under Chapter 55.

The lien extends to the house, building, fixtures, or improvements, the land reclaimed from overflow, or the railroad and all of its properties, and to each lot of land necessarily connected or reclaimed. However, the lien does not extend to abutting sidewalks, streets, and utilities that are public property.

The lien secures payment for the labor done or material furnished for the construction or repair; the specially fabricated material, even if the material has not been delivered or incorporated into the construction or repair, less its fair salvage value; or the preparation of a plan or plat by an architect, engineer, or surveyor.

The person claiming the lien must file an affidavit with the county clerk of the county in which the property is located or into which the railroad extends not later than the 15th day of the fourth calendar month after the day on which the indebtedness accrues. A person claiming a lien arising from a residential construction project must file an affidavit with the county clerk of the county in which the property is located not later than the 15th day of the third calendar month after the day on which the indebtedness accrues.

An indebtedness to a general contractor accrues on the last day of the month in which a written declaration by the original contractor or the owner is received by the other party to the original contract stating that the original contract has been terminated; or on the last day of the month in which the original contract has been completed, finally settled, or abandoned.

An indebtedness to a subcontractor or any other person who has furnished labor or material to a general contractor or to another subcontractor accrues on the last day of the last month in which the labor was performed or the material furnished.

An indebtedness for specially fabricated material accrues on the last day of the last month in which materials were delivered; on the last day of the last month in which delivery of the last of the material would normally have been required at the job site; or on the last day of the month of any material breach or termination of the original contract by the owner or contractor or of the subcontract under which the specially fabricated material was furnished.

The affidavit of the person claiming the lien must be signed by such person or by another person on the claimant's behalf and must contain substantially:
(1) a sworn statement of the amount of the claim;
(2) the name and last known address of the owner or reputed owner;
(3) a general statement of the kind of work done and materials furnished by the claimant and, for a claimant other than an original contractor, a statement of each month in which the work was done and materials furnished for which payment is requested;
(4) the name and last known address of the person by whom the claimant was employed or to whom the claimant furnished the materials or labor;
(5) the name and last known address of the original contractor;
(6) a description, legally sufficient for identification, of the property sought to be charged with the lien;
(7) the claimant's name, mailing address, and, if different, physical address; and
(8) for a claimant other than an original contractor, a statement identifying the date each notice of the claim was sent to the owner and the method by which the notice was sent.

A person who files an affidavit must send a copy of the affidavit by registered or certified mail to the owner at the owner's last known business or residence address not later than the fifth day after the date the affidavit is filed with the county clerk. If the person is not the general contractor, the person must also send a copy of the affidavit to the general contractor at the general contractor's last known business or residence address within the same period.

If an owner receives notice from a subcontractor, the owner may withhold from payments to the general contractor an amount necessary to pay the claim for which he receives notice. Unless the claim is otherwise settled, discharged, indemnified against, or determined to be invalid by a final judgment of a court, the owner shall retain the funds withheld until:
(1) the time for filing the affidavit of mechanic's lien has passed; or
(2) if a lien affidavit has been filed, until the lien claim has been satisfied or released.

Except for the amount required to be retained under Sec. 53.101 of the Texas Property Code, the owner is not liable for any amount paid to the general contractor before the owner is authorized to withhold funds under Chapter 55. If the owner fails or refuses to retain funds, a claimant complying with Chapter 55 has a lien, at least to the extent of the amount that should have been retained from the original contract under which he is claiming, against the house, building, structure, fixture, or improvement and all of its properties and against the lot or lots of land necessarily connected.

All subcontractors, laborers, and materialmen who have a mechanic's lien have preference over other creditors of the general contractor. When a debt for labor or materials is satisfied or paid by collected funds, the person who furnished the labor or materials shall, not later than the 10th day after the date of receipt of a written request, furnish to the requesting person a release of the indebtedness and any lien claimed, to the extent of the indebtedness paid.

A mechanic's lien may be foreclosed only on judgment of a court of competent jurisdiction foreclosing the lien and ordering the sale of the property subject to the lien. In any proceeding to foreclose a lien or in any proceeding to declare that any lien or claim is invalid or unenforceable in whole or in part, the court shall award costs and reasonable attorney's fees as are equitable and just. However, with respect to a lien or claim arising out of a residential construction contract, the court is not required to order the property owner to pay costs and attorney's fees to the contractor.

At the Law Office of Stephen O'Rear, P.C. with help people resolve disputes involving Mechanic's Liens.

If you are injured on the job and your injury was caused by the negligence of a third party and not your employer you can still recover workers' compensation from your employer's worker's compensation insurance carrier. However, if you bring a suit against the third party for your injuries after receiving worker's compensation benefits, you might be surprised to learn that the worker's compensation carrier is expecting to be reimbursed from your recovery for the benefits it paid to you. This is known in insurance law as subrogation.

The subrogation interest of the workers' compensation insurance carrier is generally granted in Chapter 417 of the Texas Labor Code. Section 417.001 gives a subrogation interest or a direct right of recovery to the workers' compensation carrier. Section 417.002 requires that the third party recovery be exhausted before the carrier is obligated to resume benefits to the injured worker. Section 417.003 sets forth rules for compensating the attorney who obtains the recovery out of which the subrogation interest is paid. Section 417.004 bars the negligent third party from seeking contribution or indemnity from a negligent employer in the absence of a prior agreement.

The statute authorizes the recovery by the carrier to take priority over common law, including the made whole doctrine. Any employee who receives workers' compensation benefits for an on the job injury must repay the carrier out of the proceeds of any third party settlement or judgment. "Third party" may include certain first party uninsured or underinsured motorist benefits.

Section 417.002 also provides that the net amount recovered by the employee in a third-party action shall be used to reimburse the insurance carrier for benefits. The term "net amount" means the amount recovered by the injured employee after payment of all attorney's fees and expenses incurred by the injured employee in obtaining the judgment or settlement. The Act further provides that, as compensation for pursuing the third-party action, the employee's attorney may also recover fees for services rendered to the carrier. Such fees are payable out of the carrier's subrogation recovery in an amount not to exceed one-third of the insurance carrier's recovery. Tex. Lab. Code Ann. § 417.003(c) (Vernon 1996). However, any agreement between the employee's attorney and the workers' compensation carrier for the payment of attorneys fees to the employee's attorney must be disclosed to the employee.

The employee's attorney and the employee may be jointly and severally liable for the failure to reimburse a workers' compensation carrier for its subrogation interest. The attorney does not owe a fiduciary duty to the workers' compensation carrier if the carrier did not separately contract with the attorney and is not liable to the carrier under a breach of contract theory or fraud theory for failing to reimburse the carrier. But the attorney's liability is not limited to the amount of his fee. In Garriga v. Ace American Ins. Co., 321 S.W. 3d. 187, (Tex. Civ. App. - Eastland 2010) the worker's compensation carrier was entitled to recoup the entire amount of the $12,600 settlement from the injured employee and his attorney after the attorney settled the injured employee's claim for less than the amount of the $44,287.90 subrogation lien. Garriga, the employee's attorney, and the employee were jointly and severally liable for the $12,600 although Garriga received only $2,706.83 from the settlement in attorney's fees.

The subrogation rights of the carrier are derivative of the injured employee. In Smith v.
Financial Insurance Co. of America, 229 S.W.3d 405 (Tex. App.- Eastland 2007), the court noted that the worker's compensation carrier did not have to file its own medical malpractice expert report, after intervening to protect its subrogation lien, because the injured employees had done so and the carrier's rights were derivative of the employees. However, because the worker's compensation carrier has the independent right to pursue its cause of action, a release of the negligent third party by the injured employee will not bar the carrier from pursuing its own cause of action.

In wrongful death cases, the courts have treated the recovery of a spouse and children as derivative causes of action. The derivative cause of action is subordinate to the right of the injured employee and the injured employee's rights are burdened by the subrogation interest. Therefore, the derivative recoveries of the spouse and children are similarly burdened by the obligation to reimburse the workers' compensation carrier out of the first dollars recovered for anyone's causes of action.

The employee and his or her attorney may not circumvent the subrogation provisions of the statute by arguing the made whole doctrine. The worker's compensation lien may not be defeated by a creative allocation of the recovery only to elements of damages such as pain and suffering, disfigurement or physical impairment that were not paid by the carrier. The only way to try to circumvent the workers' compensation lien is to obtain a jury verdict, or to obtain findings of facts in a contested hearing, which allocates the award or verdict to elements of damages not paid by the the insurance company. The past subrogation interest may, arguably, be limited to the amount actually recovered from the jury on the medical bills and indemnity for lost wages.

The employee and the worker's compensation carrier each share the same two year statute of limitations for filing a third party liability suit against a negligent tortfeasor. A suit to preserve the subrogation interest may be filed by the carrier in the name of the employee or in the name of the carrier. However, if the employee is not the named as a plaintiff, then the employee's cause of action has not been preserved. The carrier's subrogation interest need not be filed within two years of the date of the employee's injury if the employee's rights are preserved within the two year period by the filing of a petition, alleging the employee's causes of action against the third party defendant, because the employee is obligated to honor the statutory lien. However, an intervention filed by the carrier after the two year statute of limitations will relate back to the filing date of the employee's suit.

At the Law Office of Stephen O'Rear, P.C. we fight for the rights of injured workers.

If you are an employer in Texas, in some instances, you have a duty to properly hire, train, supervise and retain competent employees. If you breach that duty, you can be found liable to persons who are injured from your actions. Claims against an employer for negligent hiring are based on the direct liability of the employer and not the vicarious liability of the employer for the acts of the employee. The main advantage of a negligent hiring claim is that it does not require a finding that the employee was acting in the coarse and scope of his employment when the injury occurred. Instead the employer is liable if its negligence in hiring, supervising, training or retaining the unfit employee was a proximate cause of the plaintiff's injury.

To prove a cause of action for negligent hiring it must be shown that the employer owed the plaintiff a legal duty to hire, supervise, train or retain competent employees and that the breach of that duty was the proximate cause of the injury to the plaintiff.

An employer has a duty to use ordinary care in determining whether a prospective employee should be hired. This duty requires the employer to make an inquiry into the competence and qualifications of the prospective employee and may require the employer to look into the employee's criminal background. However, criminal background checks are not required for every employee. The need for a criminal background check largely depends on the nature of the job the employee is hired to do.

Sometimes the employer is required by statute to perform a criminal background check. Under Chapter 145 of the Texas Civil Practices and Remedies Code, an employer of persons hired to do in home service or in home delivery must either obtain a criminal history of the person or a certification that the person holds in good standing an occupational license by a Texas licensing authority that is required to perform a criminal background check in order to issue the license.

The duty to supervise the employee arises when the standard of care for a particular profession requires supervision or when there is evidence that the employee may pose a particular danger to others. For example, in Denton Regional Medical Center v. LaCroix, 947 S.W. 2d. 941 (Tex. App. - Fort Worth 1997, pet. denied.) it was held that a hospital had a duty to properly supervise an employee who administered anesthesia.

To prove that the employer failed to properly train the employee, the plaintiff must produce evidence showing that a reasonably prudent employer under the circumstances would have provided some training or would have provided more training than was given. However, the duty to train an employee does not arise if the employee is performing work the employee had performed previously.

An employer who retains an employee has a duty to remain knowledgeable of the employee's competence and fitness. To prove a breach of this duty it must be shown that the employer knew or should have known that the continued employment of the employee would create an unreasonable risk of harm to others.

For the purpose of negligent hiring claims an employer breaches its duty if it hires an employee after discovering information that would cause a reasonable employer not to hire the employee or that would put the employer on notice that hiring the employee may create a risk of harm to others. To be the proximate cause of the injury, the risk of harm that caused the hiring to be negligent must be the same risk that caused the plaintiff's injury. That is the plaintiff's injury was somehow connected to the employee's employment and the injury was a foreseeable consequence of the employer's hiring, supervising, training or retention of the employee.

The statute of limitations for negligent hiring claims is generally two years. However, in a negligent supervision suit arising from an employee's sexual assault, the statute of limitations is five years under Section 16.0045 of the Texas Civil Practices and Remedies Code. Also, claims for negligent hiring brought by co-employees for injuries caused by other co-employees may be preempted by the Texas Workers Compensation Act.

At The Law Office of Stephen O'Rear we represent people who have been injured by the negligence of others.

In order to prevent persons from asserting false liens or claims against real or personal property, the Texas Legislature enacted Chapter 12 of the Texas Civil Practices and Remedies Code.

Under Chapter 12, a person may not make, present, or use a document or other record with:

• knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property;


• intent that the document or other record be given the same legal effect as a court record or document of a court created by or established under the constitution or laws of this state or the United States or another entity listed in Section 37.01 of the Texas Penal Code, evidencing a valid lien or claim against real or personal property or an interest in real or personal property; and


• intent to cause another person to suffer: physical injury; financial injury; mental anguish or emotional distress.

A person who violates Subsection Chapter 12 is liable to each injured person for the greater of $10,000 or the actual damages caused by the violation together with court costs; reasonable attorney's fees and exemplary damages in an amount determined by the court.

However, a person claiming a lien under Chapter 53 of the Texas Property Code, is not liable under this section for the making, presentation, or use of a document or other record in connection with the assertion of the claim unless the person acts with intent to defraud.

An action to enjoin violation of Chapter 12 or to recover damages under Chapter 12 may be brought by the Attorney General of Texas; a District attorney; a County attorney or a Municipal attorney. However, in the case of a fraudulent judgment lien, the action may be brought by the person against whom the judgment is rendered or, in the case of a fraudulent lien or claim against real or personal property, the obligor or debtor, or a person who owns an interest in the real or personal property.

Notwithstanding any other law, a person licensed or regulated by Title 11 of the Texas Insurance Code (the Texas Title Insurance Act), does not have a duty to disclose a fraudulent court record, document, or instrument purporting to create a lien or purporting to assert a claim on real property or an interest in real property discovered in connection with a sale, conveyance, mortgage, or other transfer of the real property or interest in real property.

Furthermore, a purported judgment lien or document establishing or purporting to establish a judgment lien against property in Texas, that is issued or purportedly issued by a court or a purported court other than a court established under the laws of the state of Texas or the United States, is void and has no effect in the determination of any title or right to the property.

An action under Chapter 12 may be brought in any district court in the county in which the recorded document is recorded or in which the real property is located. The fee for filing an action under this chapter is $15. The plaintiff must pay the fee to the clerk of the court in which the action is filed. The plaintiff may not be assessed any other fee, cost, charge, or expense by the clerk of the court or other public official in connection with the action.

The fee for service of notice of an action under Chapter 12 charged to the plaintiff may not exceed $20 if the notice is delivered in person or the cost of postage if the service is by registered or certified mail. A plaintiff who is unable to pay the filing fee and fee for service of notice may file with the court an affidavit of inability to pay under the Texas Rules of Civil Procedure. If the $15 filing fee imposed is less than the filing fee the court imposes for filing other similar actions and the plaintiff prevails in the action, the court may order a defendant to pay to the court the difference between the fee paid by the plaintiff and the filing fee the court imposes for filing other similar actions.

The court shall award the plaintiff the costs of bringing the action if the plaintiff prevails and the court finds that the defendant, at the time the defendant caused the recorded document to be recorded or filed, knew or should have known that the recorded document is fraudulent. A document or instrument is presumed to be fraudulent if the document:

(1) Is a purported judgment or other document purporting to memorialize or evidence an act, an order, a directive, or process of a purported court or a purported judicial entity not expressly created or established under the constitution or the laws of this state or of the United States; or a purported judicial officer of a purported court or purported judicial entity.
(2) Purports to create a lien or assert a claim against real or personal property or an interest in real or personal property and is not a document or instrument provided for by the constitution or laws of this state or of the United States; or is not created by implied or express consent or agreement of the obligor, debtor, or the owner of the real or personal property or an interest in the real or personal property, if required under the laws of this state, or by implied or express consent or agreement of an agent, fiduciary, or other representative of that person;
(3) Is not an equitable, constructive, or other lien imposed by a court with jurisdiction created or established under the constitution or laws of this state or of the United States; or
(4) Purports to create a lien or assert a claim against real or personal property or an interest in real or personal property and the document or instrument is filed by an inmate or on behalf of an inmate.

For purposes of Chapter 12, the costs of bringing the action include all court costs, attorney's fees, and related expenses of bringing the action, including investigative expenses.

At the Law Office of Stephen O'Rear, P.C. we assist people in removing fraudulent liens or claims against real or personal property.

If you are the owner of a motor vehicle in certain circumstances you can be held liable for allowing someone else to operate your vehicle. Even if there is no alcohol involved, motor vehicle owners can be held responsible if they allow an unlicensed or habitually bad driver to operate their vehicle. This is known as liability for negligently entrusting a motor vehicle to another person.

To prove a claim for negligently entrusting a motor vehicle to another, the plaintiff must establish the following:

1. The owner allowed the vehicle to be operated by the person;
2. The person was a unlicensed, reckless or incompetent driver;
3. The owner knew or should have know that the person was a unlicensed, reckless or incompetent driver;
4. The driver was negligent on the occasion; and
5. The driver's negligence caused the accident.

Proof of ownership can be shown by establishing that the person is claiming ownership or possession of the vehicle or by showing that the person is someone who exercises control over the vehicle. Ownership is typically established by the certificate of title to the vehicle or evidence of the owner's liability insurance covering the vehicle.

To establish control it must be shown that the person had a superior legal right to control the vehicle and not just the right to exercise some control over it. A legal right to control the vehicle may be evidenced by the owner's consent or a contractual right. However, loaning money to another to purchase a vehicle does not give the creditor the right of control unless the debtor has defaulted under the loan and the creditor had the right to repossess the vehicle.

Entrusting means permitting the driver to use the vehicle and the controlling issue is whether the driver was initially entrusted with the vehicle, not whether the driver was using the vehicle for the original purpose. Implied permission may be inferred by the conduct of the parties when there is a lack of objection signifying consent.

Entrusting a vehicle to a person who does not have a valid driver's license is negligence per se. On the other hand, a driver's license is evidence that a person posses the minimum amount of competence and skill to operate a motor vehicle and proof of such, without any other evidence to the contrary, conclusively negates the element the owner knew or should have known the driver was incompetent.

A driver's recklessness or incompetence is determined at the time of entrustment of the vehicle. The type of conduct necessary to prove recklessness or incompetence is based on the particular facts and circumstances. For example, proof that a driver received multiple citations for driving without insurance is insufficient to establish recklessness or incompetence. However, a driver's driving record is admissible to prove recklessness or incompetence if the driver has multiple traffic violations or accidents. Furthermore, evidence of a driver's condition, state or situation at the time of the entrustment is also admissible to prove recklessness or incompetence. This could include evidence that the driver was intoxicated or physically incapacitated or other evidence that shows the driver's lack of judgment.

To be liable the owner must have known or should have known the driver was incompetent at the time of the entrustment. However, if the driver shows the owner a valid drivers license, the owner is under no further duty to investigate the driver's history unless there is additional evidence at the time of entrustment that the driver might be incompetent. Also to be liable it must be proven that the driver's negligence was the cause of the accident and without proof of the driver's negligence the owner cannot be held liable.

Defenses to negligent entrustment claims are the same as with other ordinary negligence claims such as comparative negligence or unavoidable accident. However, it is not a defense that the driver deviated from the initial scope of the entrustment. The statute of limitations for a negligent entrustment claim is two years.

At the Law Office of Stephen O'Rear we help people who have been injured in automobile accidents.

The National Center for Injury Prevention and Control estimates that there are over 4.5 million dog bites in the United States every year. Insurance company estimates indicate that dog bites cost insurance companies over $400 million in clams each year. If you own a dangerous domesticated animal you may be strictly liable if that animal causes injury to a person or even another animal. Strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of fault. A domesticated animal is any animal (i.e. dog, cat, pig, horse, etc.) that is by custom devoted to the service of mankind at the time and place it is kept.

To prove a cause of action for injury by a dangerous domesticated animal, the plaintiff must show that:

1. The defendant owned or possessed the animal;
2. The animal had dangerous propensities abnormal to its class;
3. The defendant knew or had reason to know that the animal had dangerous propensities; and
4. The animal's dangerous propensities were a producing cause of the plaintiff's injury.

The defendant can be held liable if he owned, kept or harbored the animal or if he owned or possessed the premises where the animal was kept. Even if the animal is owned by some one else, person who owns or controls the premises where a dangerous animal is kept that can be held liable if that person allowed the animal to be on the premises. For example, a landlord can be held liable for a dangerous animal owned by a tenant if the landlord had knowledge and is in control of the premises were the animal is kept.

To establish that the animal had abnormally dangerous propensities, the plaintiff must show that the animal's vicious or dangerous tendencies were not normal for that class of animal. An animal's class is not necessarily limited to a specific breed of the animal. One Texas court has held that a Weimaraner should be compared to the dangerous tendencies of all dogs, not just other Weimaraners. See Dunnings v. Castro, 881 S.W.2d. 559 (Tex. App. - Houston [1st] 1994).

A defendant has a reason to know an animal has dangerous propensities if he has information from which a reasonable person would infer that the animal is dangerous. However, whether a defendant knew or had reason to know of the animal's dangerous propensities depends on the facts. Typically, the defendant must acknowledge to third parties that the animal is dangerous. If the animal is owned by another person but kept on the defendant's premises, the plaintiff must still prove that the defendant had knowledge of the animal's dangerous propensities.

Unlike ordinary negligence which requires proof that the negligent act was the proximate cause of the plaintiff's injury, strict liability for dangerous animals only requires a showing of producing cause. To prove that the animal's dangerous propensities were a producing cause of the injury, the plaintiff only must show the animal's dangerous propensities contributed to the plaintiff's injuries.

Te remedies available in a dangerous animal case include actual damages, punitive damages, court costs and interest. However, under Chapter 822 of the Texas Health and Safety Code if a dog attacks a person and causes serious bodily injury, a court may order the dog seized, and after a hearing, can order the animal to be destroyed. This statute is limited in application only to dogs. A dangerous dog under the act is one that either makes an unprovoked attack on a person that causes serious bodily injury or commits an unprovoked act that causes a person to reasonably believe that the dog will attack and cause bodily injury.

One defense to strict liability for dangerous animals is assumption of the risk. This defense may bar a plaintiff's recovery if he voluntarily exposes himself to a danger that he knew about and fully appreciated. However, this defense does not apply to a plaintiff who does not understand the risk because of age or lack of information, experience, intelligence or judgment. Also, it is not a defense that the animal was chained because when the plaintiff has the right to be on the premises, the owner must ensure that the animal does not cause harm to the plaintiff. The statute of limitations for claims arising from a dangerous domesticated animal is two years.

At The Law Office of Stephen O'Rear we help people who have been injured by dangerous animals.

Texas property owners can be held liable for injuries to persons who enter upon their property. This is known as premises liability. The most common premises liability claims involve slip and falls, dog attacks, electrocution, chemical exposure, or injury caused by disrepair of the property. Basically, a premises liability claim is a specific type of negligence action brought as the result of alleged injuries caused by a condition of real property. In order to be liable for a premises defect claim, the responsible party must qualify as a possessor of the premises who was in control of the premises where the injury occurred. The responsible party need not own title to the land in question; occupiers entitled to exercise exclusive control over the premises, such as tenants and lessees or general contractors, are under the same duty as owners to keep the property in a safe condition.

Unlike some other states, Texas still maintains a legal distinction between status as an invitee, licensee, or trespasser. It is the determination of this status that controls the scope of a defendant's duty owed in a premises liability case.

A plaintiff's status is that of invitee if the plaintiff enters onto the real property with the owner's express or implied knowledge and for the parties' mutual benefit.

A plaintiff is a licensee if the plaintiff enters onto the real property with the owner's express or implied permission, but only for the plaintiff's own convenience or for the business of someone other than the owner. In Texas, a social guest is considered a licensee.

A plaintiff is considered a trespasser if he enters the real property solely for the plaintiff's own purposes or out of curiosity, without a lawful right or the consent of the owner.

A plaintiff's status can change from one to the other of these categories depending on the circumstances. For example, the status of a plaintiff may change from invitee to licensee or even a trespasser if the plaintiff makes an unforeseen departure into a portion of the premises where he was not invited.

The six required elements of a premises liability cause of action in claims brought by invitees are:

1. The plaintiff meets the definition of invitee;
2. The defendant was an owner or possessor of the premises;
3. A condition on the premises posed an unreasonable risk of harm;
4. The defendant knew or reasonably should have known of the danger;
5. The defendant breached its duty of ordinary care to protect the plaintiff from
danger by failing to adequately warn Plaintiff of the condition or
failing to make the condition reasonably safe; and
6. The defendant's breach proximately caused Plaintiff's injury.

These elements are virtually the same for licensees except liability with respect to a licensee depends on whether the defendant had actual knowledge of the danger and the plaintiff did not have actual knowledge of the danger. Liability to a trespasser depends on whether there was a condition on the premises that posed an unreasonable risk of harm and the defendant breached its duty of care by acting willfully, wantonly, or with gross negligence.

In a slip and fall case it is important to make a distinction as to whether the plaintiff's injury was caused by a defect on the premises or was caused by a negligent activity on the premises. Negligent activity encompasses malfeasance based on affirmative contemporaneous conduct by the defendant. Premises liability encompasses nonfeasance based on the defendant's failure to make the premises safe. This distinction was discussed in Ketch v. Kroger Co., 845 S.W.2d. 262 (Tex. 1992). In Ketch the plaintiff slipped on a substance that may have been applied to nearby plants about 30 minutes before the accident. The court stated that to recover for a negligent activity, the plaintiff would have to prove that he was injured by the activity on the premises and not by a condition on the premises created by that activity and because there was no "ongoing activity" at the time the plaintiff was injured the claim was for premises liability only. The court reasoned that even though the plaintiff was injured by a condition created by the spraying, the plaintiff was not injured by the spraying itself. Thus, in order to recover for a negligent activity the plaintiff must be injured by an ongoing activity of the defendant on the premises.

The standard of care in a negligent activity case is the same for ordinary negligence and the plaintiff's status as an invitee, licensee or trespasser is irrelevant. When it is unclear whether the plaintiff's injury was caused by a negligent activity or a premises defect, the plaintiff should plead and prove both theories. If the plaintiff submits only a negligent activity theory and an appellate court decides the case should have been tried as a premises case, the court can reverse and render against the plaintiff.

At the Law Office of Stephen O'Rear we help people who are injured by premises defects.

Charges for health care, once based on the provider's costs and profit margin, have more recently been driven by government regulation and negotiations with private insurers. A two-tiered structure has evolved: " list" or " full" rates sometimes charged to uninsured patients, but frequently uncollected, and reimbursement rates for patients covered by government and private insurance. Few patients today ever pay a hospital's full charges, due to the prevalence of Medicare, Medicaid, HMOs, and private insurers who pay discounted rates. Hospitals, like health care providers in general, feel financial pressure to set their "full" charges as high as possible, because the higher the "full" charge the greater the reimbursement amount the hospital receives since reimbursement rates are often set as a percentage of the hospital's "full" charge. Although reimbursement rates have been determined to be reasonable under Medicare or other programs, or have been reached by agreements between willing providers and willing insurers, providers nevertheless maintain that "list" rates are also reasonable. Providers commonly bill insured patients at "list" rates, with reductions to reimbursement rates shown separately as adjustments or credits. Portions of bills showing only list charges are often admitted in evidence in court proceedings, with proof of the reasonableness of the charges coming from testimony by the provider. Against this backdrop of health care pricing practices, the Texas Legislature enacted Section 41.0105 of the Texas Civil Practices and Remedies Code.

Section 41.0105, provides that, in addition to any other limitation under law, recovery of medical or health care expenses in a personal injury suit is limited to the amount actually paid or incurred by or on behalf of the claimant. In the recent opinion of Haygood v. De Escabedo, 356 S.W.3d 390 (Tex.2011), the Texas Supreme Court stated that Section 41.0105 is a limitation on the claimant's recovery so that only evidence of recoverable medical expenses is admissible at trial. In other words, only evidence of expenses actually paid or incurred by the claimant can be presented to a jury and any determination of what was paid or incurred precedes any reduction for the claimant's percentage of responsibility.

In Haygood, the Texas Supreme Court reasoned that although reimbursement rates have been determined to be reasonable under Medicare or other programs, or have been reached by agreements between willing providers and willing insurers, providers nevertheless maintain that list rates are also reasonable. The court stated that as a general principle, compensatory damages, like medical expenses, are intended to make the plaintiff whole for any losses resulting from the defendant's interference with the plaintiff's rights. But the collateral source rule is an exception to this principle. Long a part of the common law of Texas and other jurisdictions, the collateral source rule precludes any reduction in a tortfeasor's liability because of benefits received by the plaintiff from someone else as a collateral source. For example, health insurance payments to or for a plaintiff are not credited to the damages awarded against the defendant because of the collateral source rule..

The Petitioner in the Haygood case argued that the theory behind the collateral source rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party to which the wrongdoer was not privy and that any adjustment in billed medical charges required to be made by an insurer is a collateral benefit covered by the rule. But the Supreme Court disagreed. The court stated that the benefit of insurance to the insured is the payment of charges owed to the health care provider. An adjustment in the amount of those charges to arrive at the amount owed is a benefit to the insurer, one it obtains from the provider for itself, not for the insured. The collateral source rule reflects the position of the law that a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor. However, the court reasoned that to impose liability on the tortfeaser for medical expenses that a health care provider is not entitled to charge does not prevent a windfall to a tortfeasor; it creates one for the claimant.

In support of its ruling in Haygood, the court relied on Daughters of Charity Health Services of Waco v. Linnstaedter, 226 S.W.3d. 409 (Tex 2007). In that case Linnstaedter and Bolen sued Jones for injuries they sustained in a motor vehicle accident, claiming damages for the full amount of their hospital expenses. The hospital was reimbursed part of those expenses by workers' compensation insurance and was precluded from seeking payment of the unpaid balance from its patients by the Workers' Compensation Act. Nevertheless, the hospital asserted a lien on any damages the patients recovered against Jones. Jones settled with the patients and paid the hospital the balance on its bill to discharge the lien. The patients then sued the hospital for the amount of that payment. The court held that the hospital's claim to part of the patients' recovery against Jones was a claim against the patients themselves that was precluded by the Workers' Compensation Act. To allow the hospital to recover more than the reimbursement allowed by the Workers' Compensation Act would defeat its purpose of controlling medical costs. But the patients had sued Jones for the full medical charges billed by the hospital rather than the reduced amount paid by their compensation carrier. The court determined that a recovery of medical expenses in that amount would be a windfall and because the hospital had no claim for these amounts against the patients, they in turn had no claim for them against Jones.

The fallout from Haygood is that, if the claimant's medical expenses have been paid by a collateral source and the reimbursement to the provider was adjusted, only evidence of the claimant's "adjusted" medical expenses is admissible at trial. That is, a court can only admit evidence of what was actually paid to the provider or actually incurred by the claimant, the cost that the claimant was initially billed prior to adjustment is not admissible. In order to avoid violating the collateral source rule, the prudent practitioner should admit evidence of medical expenses as summary exhibit that gives the total amount for each provider after adjustment, or in redacted form, so that the jury does not see any reference to insurance payments.

At the Law Office of Stephen O'Rear, P.C. we help people recover their medical expenses.