Limitations.jpgIf you have been injured or you owe someone a debt, there is a certain of time in which a suit must be brought to recover damages for you injury or to hold you liable for the debt. This time period is known as the statute of limitations. Many of the applicable statute of limitations in Texas are codified in Section 16.001, et. seq. of the Texas Civil Practices and Remedies Code (TCPRC).

The most common statute of limitations are the two year statute, section 16.003,TCPRC, applicable to personal injury actions and the four year statute, section 16.004, TCPRC, applicable to suits on contracts or debts.

In addressing the statute of limitations the most important thing that must be determined is when did the cause of action accrue. Accrual refers to the date when the limitations period begins to run, that is, when the person is legally entitled to bring a suit. For some causes of action the accrual date is defined by statute. For example in medical negligence cases the cause of action accrues on the date the breach of duty occurred or the date of last treatment. (Section 74.251, TCPRC) or in wrongful death cases the cause of action accrues when the person dies. (Section 16.003(b), TCPRC).

House Fire.jpgIf 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.

Fences.jpgAdverse 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.

Car Repair.jpgIf 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.

Penatlies.jpgChapter 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.

Construction workers.jpgIf 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.

Child Trespassing.jpgThe 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;

Medicare.jpgThe 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.

Lien.jpgIf 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.

Injured worker.jpgIf 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.