Tuesday, February 28, 2017

What Employment-Related Bills are on the Texas Legislature’s Plate in 2017?

Originally published by Leiza Dolghih.

Tcapitold_1024he 85th general session of the Texas Legislature started in January and will end in May 2017. Numerous employment-related bills have been filed during the general session, and while many of them will not become the law of the land, they provide a good insight into what’s on the legislators’ mind.  A lot of times, even though a bill won’t pass on the first try, it will be reintroduced and passed during the second or even a third attempt.  Here’s a summary of current 2017 employment-related bills filed in the house or senate:*


  • HB 192 – Relating to the prohibition of housing discrimination on the basis of sexual orientation or gender identity or expression and to the enforcement of that prohibition.
  • HB 225 / SB 165 J – Relating to the prohibition of employment discrimination based on sexual orientation or gender identity or expression.
  • HB 228 / SB 223 – Relating to unlawful employment practices regarding discrimination in payment of compensation.
  • HB 258 – Relating to a prohibition on the award of a state agency contract to a person in a state with laws allowing or requiring discrimination based on sexual orientation or gender identity or expression.
  • HB 290 – Relating to a prohibition on sex discrimination in compensation.
  • SB 92 – Relating to prohibition of certain regulations by a county, municipality, or other political subdivision.
  • SB 165 – Relating to the prohibition of certain discrimination based on sexual orientation or gender identity or expression.
  • SB 296 – Relating to the liability of the state for a violation of the federal Americans with Disabilities Act

Employee / Family Leave

  • HB 88 – Relating to an unlawful employment practice by an employer whose leave policy does not permit an employee to use leave to care for the employee’s foster child.
  • HB 629 – Relating to leave for certain veterans obtaining medical and mental health care.
  • HB 656 – Relating to employment leave for certain family or medical obligations.
  • HB 718 – Relating to family care leave for certain employees.
  • SB 73 – Relating to leave policy and procedures for state employees.
  • SB 191 – Relating to the ability of a nonexempt employee to participate in certain academic, disciplinary, college and career readiness, and developmental activities of the employee’s child or grandchild.
  • SB 285 – Relating to the right of an employee to time off from work to obtain an election identification certificate.

Human Resources – General

  • HB 252 – Relating to the requirement that certain employers provide advance notice of employee work schedules.
  • HB 317 / HB 334- Relating to the consideration by certain employers of the consumer credit reports of certain employees and applicants for employment.
  • HB 329 – Relating to breast-feeding policies of state agency worksites.
  • HB 334 / HB 317 – Relating to the consideration by employers of the consumer credit reports or other credit information of employees and applicants for employment.
  • HB 548 – Relating to the consideration of criminal history record information regarding applicants for employment.
  • HB 568 – Relating to authority for certain state employees to work flexible hours and to work from home or other authorized alternative work sites.
  • HB 577 – Relating to the authority of a political subdivision to adopt or enforce certain regulations regarding whether a private employer may obtain or consider an employment applicant’s or employee’s criminal history record information.
  • SB 75 – Relating to the requirement for parental consent for a minor to join a labor union.
  • SB 279 – Relating to expression of breast milk in the Capitol and other public buildings.

Immigration / E-Verify 

  • SB 23 / SB 254 – Relating to requiring state contractors to participate in the federal electronic verification of employment authorization program, or E-verify.
  • SB 85 – Relating to the verification of employment authorization by state contractors and state grant recipients, including the use of the federal E-verify program, and to authorization for the suspension of certain licenses held by private employers for the knowing employment of persons not lawfully present in this state; authorizing a fee.

Pay / Benefits / Wages and Hours

  • HB 202 – Relating to a database of employers penalized for failure to pay wages or convicted of certain offenses involving wage theft.
  • HB 253 – Relating to the period during which an employee may file a claim for unpaid wages with the Texas Workforce Commission.
  • HB 285 / HB 475 Relating to the minimum wage. ($15/hour or federal minimum wage, whichever is higher)
  • HB 326 – Relating to the payment of gratuities to certain employees.
  • HB 373 – Relating to administrative penalties assessed by the Texas Workforce Commission against certain employers for failure to pay wages.
  • HB 510 / SB 13 – Relating to payroll deductions for state and local government employee organizations.
  • SB 70 – Relating to the required earnings statement provided by employers.
  • SB 229 – Relating to the minimum wage. ($10.10/hour or federal minimum wage, whichever is higher)

Employment – Miscellaneous

  • HB 92 – Relating to the entitlement of spouses of certain veterans with disabilities to a veteran’s employment preference.
  • HB 108 – Relating to the creation of the Recruit Texas Program to facilitate the relocation to or expansion in this state of employers offering complex or high-skilled employment opportunities.
  • HB 148 – Relating to electronic benefits transfer cards used for recipients of benefits under certain assistance programs.
  • HB 436 / SB 268 – Relating to the drug testing of certain persons seeking benefits under the Temporary Assistance for Needy Families (TANF) program.
  • HB 595 – Relating to a franchise tax credit for entities that employ certain students in certain paid internship or similar programs
  • HB 230 – Relating to the eligibility of school bus drivers for unemployment compensation benefits.
  • HB 463 – Relating to the disqualification from receiving unemployment benefits of certain individuals who are terminated from employment after giving notice of resignation.
  • HB 563 – Relating to whom certain violations of the law by a state or local governmental entity may be reported.
  • HB 665 – Relating to the requirement that contractors verify compliance with wage payment laws in contracts with public bodies.
  • SB 283 – Relating to the offense of unlawfully prohibiting an employee from voting.

* The information was originally compiled by the Texas Workforce Commission and all bills have an effective date of September 1, 2017 unless otherwise noted. 

Leiza is a business and employment litigation attorney in Dallas, Texas. If you need assistance with a business or employment dispute contact Leiza for a confidential consultation at LDolghih@GodwinLaw.com or (214) 939-4458.

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Make Sure You Read Your Renewal Cargo Insurance Policy, You May Not Have the Same Coverages Year to Year

Originally published by Jennifer Van Voorhis.

For my clients in the shipping industry, be sure to read your renewal policy to ensure that your shipments are covered; don’t assume that your agent or broker will notify you of policy changes, and be especially aware that they (the broker or agent) may not even have a duty to alert you to the … Continue Reading


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What Landowners Need to Know about Field Rules

Originally published by John McFarland.

Two recent appellate opinions illustrate why landowners and their counsel need to know the basic fundamentals of field rules and how they can affect provisions in oil and gas leases. I wrote about those cases in 2015. Both involve the interaction between field rules and lease provisions. ConocoPhillips Co. v. Vaquillas Unproven Minerals, Ltd., 2015 WL 4638272 (Tex.App.-San Antonio Aug. 5, 2015), was appealed to the Texas Supreme Court but settled before the court acted on ConocoPhillips’ petition. Endeavor Energy Resources, L.P. v. Discovery Operating, Inc., 448 S.W.3d 169 (Tex.App.-Eastland 2014), has been briefed on the merits and is awaiting the court’s decision on whether to grant review. You can read my summary of the two cases here.

The root of the issue is that oil and gas lease forms typically refer to and adopt field rules to regulate how large pooled units and earned acreage units can be. For example, a printed form oil and gas lease that has been commonly used in Texas for many years contains the following provision:

Lessee is hereby granted the right, at its option, to pool ur unitize any land covered by this lease with any other land covered by this lease, and/or with any other land, lease, or leases, as to any or all minerals or horizons, so as to establish units containing not more than 80 surface acres, plus 10% acreage tolerance; provided, however, units may be established  … so as to contain not more than 640 acres plus 10% acreage tolerance, if limited to … gas, other than casinghead gas…. If larger units than any of those herein permitted, either at the time established, or after enlargement, are required under any governmental rule or order, for the  drilling or operation of a well at a regular location, or for obtaining maximum allowable from any well to be drilled, drilling or already drilled any such unit may be established or enlarged to conform to the size required by such governmental order or rule.

To understand how the italicized sentence in this lease form works, one must know what governmental rules govern the size of units for drilling wells at a “regular” location, and for “obtaining maximum allowable” from a well. These regulations are included in “field rules” adopted by the Texas Railroad Commission. (Warning: this post is longer than usual, so be prepared.)

Two other examples of lease language dependent on field rules can be found in the Vaquillas and Endeavor cases referred to above. In Vaquillas, the lease provided:

Lessee covenants and agrees to execute and deliver to Lessor a written release of any and all portions of this lease which have not been drilled to a density of at least 40 acres for each producing oil well and 640 acres for each producing or shut-in gas well, except that in case any rule adopted by the Railroad Commission of Texas or other regulating authority for any field on this lease provides for a spacing or proration establishing different units of acreage per well, then such established different units shall be held under this lease by such production, in lieu of the 40 and 640-acre units above mentioned.

The lease language at issue in the Endeavor case provided that at the end of a continuous drilling program the lease would terminate:

as to all lands and depths covered herein, save and except those lands and depths located within a governmental proration unit assigned to a well producing oil or gas in paying quantities and the depths down to and including 100 feet below the deepest productive perforations, with each such governmental proration unit to contain the number of acres required to comply with the applicable rules and regulations of the Railroad Commission of Texas for obtaining the maximum producing allowable for the particular well.

What, then, are proration units, well allowables, and spacing rules, and why are they referred to in oil and gas leases?

The Texas Railroad Commission was given authority over oil and gas operations in Texas in order to give order to the oil-field chaos that resulted from the drilling of multiple and unnecessary wells in a fierce competition to get the most oil. The result was a glut in oil supply that caused prices to plunge, the waste of capital and resources, and damage to the oil reservoirs. To give order to the industry (and to control the rate of production so as to reduce supply and increase the price), the Commission established rules to govern how far wells had to be spaced apart from each other and how much a well could produce in any given month. The standard, statewide rule provided, and still provides, that wells have to be at least 1200 feet from any other well producing from the same horizon, and that no well may be located less than 467 feet from the boundary of the lease on which the well is drilled. This established a drilling pattern requiring 40 acres around each well. The Commission also adopted a system by which each well in a field was assigned an “allowable,” a maximum amount the well could produce during any month. Each well’s allowable was based on factors intended to give the well its fair share of the total allowable production established for the field from which the well produced. The allowable system prevented operators from competing with each other to maximize production and thereby producing at rates that would damage the reservoir or produce more than the market could absorb. It also allowed the Commission to control supply. The Commission was the OPEC of the world in the early part of the last century.

The Commission allows operators to apply for “special” field rules for spacing and allowables that apply to particular reservoirs. Because each reservoir has different geological characteristics, well spacing and allowable assignments can be designed to fit the circumstances of each reservoir.

Field rules are requested by an operator who has drilled a well into a new reservoir or source of supply, to establish the spacing and allowable rules for wells drilled into that reservoir. Initially, temporary rules are established based on the limited information then available about the reservoir, and those rules are reviewed, usually after 18 months, and either modified or made permanent. Field rules may be and often are amended on application of interested parties.

The basic practice for establishment of field rules was developed in the era of exploitation of conventional reservoirs. The geology of conventional reservoirs was well understood – how accumulations of oil and gas were trapped in the reservoir, how they flowed within the reservoir under different conditions of pressure and production rates, and what rates of production best suited the reservoir to produce the most from the reservoir at the maximum safe rates of production. Field rules establish well spacing and density – how far wells must be spaced apart and from lease boundaries — and how many wells can be drilled on a lease or pooled unit. To govern well density, field rules provide for “proration units.” A proration unit is a designated area around a well that is assigned by the operator in accordance with the applicable field rules to establish the “density” of wells in the field. The size of the proration unit specified by the Commission is intended (or at least was originally intended) to establish the amount of acreage that a well in the field can drain effectively. Density rules are intended to prevent the drilling of unnecessary wells in the field. Field rules might establish density rules of 40 acres per well up to 640 acres per well. Density rules for gas reservoirs generally provide for larger proration units than oil wells because wells in conventional gas reservoirs are able to drain a larger area than wells in conventional oil reservoirs.

Field rules also often contain “optional” density provisions. The idea is that different parts of the same field may have different drainage characteristics. A less productive portion of the field may need two wells to drain a standard unit that in other areas of the field can be drained by one well. So some field rules allow “optional” proration units of a size smaller than the “standard” proration unit for the field.

Field rules also provide an “allocation formula” for wells in the field. The formula establishes how the allowable assigned to the entire field is distributed among the wells in the field. The factors used in the formula may include the amount of acreage in a well’s proration unit, the initial potential of the well, the initial pressure of the reservoir in the well, the deliverability of the well, or some combination of those factors. In most field rules, the acreage assigned to a well is a factor in establishing the “allowable” for that well – how much of the field’s total allowable is assigned to that well.

How, then, do field rules affect the rights of landowners under oil and gas leases? In the first example of a lease form I quoted above, the field rules establish how large a pooled unit can be.  Under that clause, the pooled unit can be as large as the field rules allow in order to obtain the “maximum allowable” for a well in the field. This makes sense. The field rules are intended to determine how much each well can produce, and that depends on the proration unit assigned to the well, so the lessor and the lessee would both want the well to produce at its maximum allowable rate. As long as the size of the proration unit and the well’s allowable have some relation to the well’s capacity to produce from the reservoir and the area that can be drained by the well, it is logical to tie the size of any pooled unit to the maximum proration unit allowed for the field.

Or take the language used in the Endeavor case. That lease provided that, at the end of a continuous drilling program, the lease would terminate:

as to all lands and depths covered herein, save and except those lands and depths located within a governmental proration unit assigned to a well producing oil or gas in paying quantities and the depths down to and including 100 feet below the deepest productive perforations, with each such governmental proration unit to contain the number of acres required to comply with the applicable rules and regulations of the Railroad Commission of Texas for obtaining the maximum producing allowable for the particular well.

The drafter of this provision adopted the field rules as the measure of how much lease acreage would be retained by production from a well in the field. This assumes that the field rules establish proration units as a measure of how much acreage in the field can be drained by one well. It also assumes that the lessor would not want the allowable for the well to be reduced because less than the maximum area for the proration unit is assigned to the well under the field rules.

This proration and field-rule system, developed during the era of exploitation of conventional reservoirs, served the industry and royalty owners well and allowed the Commission to prevent waste and protect the correlative rights of operators in a field by giving each operator a fair chance to produce its share of oil and gas from the field without damaging the reservoir by overproduction. It also allowed the Commission, through the proration system, to control supply and thereby regulate prices. But this system has not adapted well to the new era of unconventional wells in shale plays and unregulated production.

So what has changed?

Although the Commission continues to adopt field rules that provide for assignment of allowables to wells in the field – usually based on acreage assigned to each well under the field rules – as a practical matter the allowable system no longer limits or regulates the amount a well can produce. The allowable system for gas has been “suspended” by the Commission for many years, so gas wells can always produce at their maximum rate. And the field rules adopted for the fields in the new shale reservoirs usually set the allowable so high that no well in the field can produce in excess of its allowable, except perhaps in the early months of the well’s production. So, in those shale fields where the maximum allowable depends in whole or in part on the amount of acreage assigned to the well for allowable purposes, a well seldom if ever actually needs to have the maximum acreage assigned to the well in order to produce at its maximum rate. As a result, the language used in many leases, providing that the lessee can retain the amount of acreage necessary to “produce the maximum allowable” is no longer relevant to most wells.

Also, field rules adopted for shale fields have abandoned any effort to relate the amount of acreage that must be assigned to a well for allowable purposes to the amount of acreage that can be drained by a well in the field. Most wells in shales are horizontal. They are drilled in shales, which are rocks permeated by oil and gas. Such rock has almost no permeability – the measure of how oil and gas can move through the rock – and so must be produced by fracturing the rock to release the hydrocarbons. Hydraulic fracturing treatment creates these fractures in the rock, but the fractures extend only a few hundred feet from the wellbore, and so the area drained by a horizontal well may be only 200 or 300 fee on either side of the wellbore. A well with a 5,000-foot horizontal lateral that drains an area 300 feet on either side of the wellbore would drain an area of only about 70 acres. And yet field rules typically allow the operator to assign up to 640 acres or even more to such a well. Clearly, any effort to use field rules to estimate the amount of acreage drained by the well has been abandoned.

For example: the field rules adopted by the Commission for the Phantom (Wolfcamp) Field in the Permian Basin provide that no well can be drilled nearer than 330 feet from a lease or unit line. This indicates the Commission’s judgment that a wellbore more than 330 feet from the lease line will not likely drain hydrocarbons from the adjacent lease. And yet the rules provide for assignment of acreage for proration purposes of 320 acres plus additional acreage based on the lateral length of a horizontal well, as follows:

0′ to 1,500″ – 320 acres

1,501′ to 3,000′ – 480 acres

3,001′ to 4,500′ – 640 acres

> 4,500′ – 704 acres

So an operator who completes a horizontal well with a 5,000-foot lateral can assign as much as 704+320=1,024 acres to the well as a proration unit, even though the well will drain only 70 or 80 acres. The field rules provide that the maximum daily oil allowable for a well in the field is 13 barrels for each acre assigned to the well for allowable purposes. So a well assigned 1,024 acres for allowable purposes could legally produce 13,312 bbls per day!

Under the Phantom (Wolfcamp) field rules, if a lease allows pooled units to be based on the amount of acreage necessary to provide the maximum allowable for the well on the proration unit, a well with a 5,000-foot lateral would enable the operator to form a pooled unit as large as 1,024 acres for that one well. If a lease allows retained acreage based on the acreage necessary to obtain the maximum allowable for a well in the field, the well could retain up to 1,024 acres.

Because the relation between the amount a well can drain and the amount of acreage that can be assigned to a well for allowable purposes has been abandoned in modern shale field rules, landowners and those lawyers representing them should, in my opinion, eliminate any reference to field rules in their oil and gas leases. Negotiations for the maximum size of proration units or retained acreage units should be based on the amount of acreage a well can actually drain, not on field rules.

Operators obtain field rules without any notice to landowners. The language in field rules is arcane and understood only by oil operators and their counsel and the Commission staff. It is not even easy to find what field rules apply to a particular well. And operators often “shop” field rules when they decide what field to designate for the wells they complete, in order to use the field rules to their advantage in forming units.

Recently, the Texas General Land Office, responsible for management of minerals on State lands, has become more active in reviewing and opposing field rule applications where the proposed rules are not based on science, because such rules could apply under some GLO leases to the disadvantage of State interests. Most recently, the GLO protested proposed new field rules applied for by Apache for its Alpine High discovery in Reeves County.

The lesson: landowners and their counsel need to be cognizant of the relation between field rules and their lease language and suspicious of any lease provision referring to field rules.



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Monday, February 27, 2017

Judge Wapner, Perry Mason, And When You Should File Your Own Lawsuit

Originally published by William K. Berenson.

JudgeOne of the most respected judges of our day, Joseph A. Wapner, died yesterday at the age of 97.

Haven’t heard of him? From 1981 – 1993 he  was the TV judge who issued King Solomon-like decisions on The People’s Court. Judge Wapner lived a rich and productive life. With a nod to last night’s Academy Awards, in high school in Hollywood he dated Lana Turner who went on to become a famous actress. He served in World Ward II and received a Purple Heart and Bronze Star, practiced law in Los Angeles for 10 years, and was appointed to the bench. He served on the California municipal and superior courts for 20 years before retiring. He was widely respected and even got a star on the Hollywood Walk of Fame.

His show wPerry_Mason_Title_Screenas the first of a long line of courtroom reality programs that continue today. OK, beginning in 1957 there was the Perry Mason show about a brilliant criminal defense lawyer who somehow always won his cases. Perry inspired many of us young people to become attorneys.

A poll showed that almost no Americans could name even one justice on our exalted Supreme Court, but more than half could name Judge Wapner, who heard small disputes about evictions and dog bites.

Judge Wapner helped revolutionize the court system by showing viewers the basics of a trial where they didn’t need lawyers. As a result, the dockets of small claims and justice of the peace courts dramatically increased.

What is Small Claims Court?

The difference between “The People’s Court” and state or county court is night and day. Many disputes are relatively small and can be successfully handled by individuals in these “people’s courts.”

The advantage is they can lead to a judgment without the delays and expenses that lawyers inevitably bring. These small claims courts can hear disputes involving damages up to $10,000.00. Case filing is easy, costs are inexpensive, legal evidence and pre-trial maneuvering is minimal, trial dates are quick, and a decision is rendered on the spot. What’s not to like? The only down side is that a favorable ruling can be easily appealed.

In personal injury cases, a small fender bender that did not cause bodily injuries is a perfect example. If a person is not able to negotiate a fair settlement of the value of his or her vehicle with the at-fault driver’s insurance company, he can file a lawsuit.

Here is more information on how to handle a case here in Tarrant County and Dallas County.

When Is a Personal Injury Lawyer Necessary?

However, many cases do require the services of an injury lawyer. I recommend that you consider hiring one in these cases when

  • liability is being contested,
  • a person(s) is injured,
  • medical bills are incurred,
  • payment for bills, lost wages, and other damages is not timely made by the other driver’s insurance company, or
  • the injured person does have the time or desire to handle the many complicated details himself

In these cases, he or she should call a lawyer and discuss the best strategy. The first no obligation meeting is free.

Hiring a personal injury lawyer will allow an injured person to receive substantially more money.

If you have any questions, please contact us by calling 817-885-8000 or toll free at 1-888-801-8585, or email us here.


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Lawmakers Call for More Action on Baylor University Rape Claims

Originally published by [email protected].

An expanding investigation and allegations of a cover up of alleged sexual assaults at Baylor University in Texas have led to calls for Governor Greg Abbott to direct the Texas Rangers to investigate.

Last week, Rep. Roland Gutierrez (D-San Antonio) filed a bill in the Texas House of Representatives urging the governor to get the Rangers to investigate “the obstruction of justice surrounding the sexual assault of young female students at Baylor University,” reported the TV station KENS5.

The resolution claimed the “level of cover up” by the university administration and campus police was “appalling.”

The Texas legislator filed a resolution calling upon Governor Greg Abbott to direct the Texas Rangers to investigate Baylor University’s administration and police department following the school’s sexual assault scandal.

The resolution claims Baylor’ administration failed to adequately investigate allegations of sexual violence.

“The level of cover-up that has been both reported and also admitted at this point is appalling,” the resolution states.

In January, a federal lawsuit alleged at least 31 football players at the Baptist university committed at least 52 “acts of rape” over four years.

A Washington Post article said these alleged sexual assaults included five gang rapes. Two of these alleged incidents involved 10 or more players simultaneously.

The lawsuit claims some of the players videotaped the rapes on their phones and gave the recordings to teammates.

The lawsuit was filed by a woman from Virginia. She alleges she was gang-raped by two Baylor players four years ago.

The university in Waco has been in the grip of a scandal for a year. It cost Baylor’s president, head football coach and athletic director their jobs after an independent investigation suggested the athletic department leadership discouraged women from reporting rapes and hushed up accusations concerning football players.

The lawsuit claimed athletics officials at Baylor created a “culture of sexual violence.” It suggested the university used the promise of sex to entice top recruits to its football team.

Earlier this month, state Senator Kirk Watson, a Democrat, filed five campus rape bills in the General Assembly in response to serious issues at Baylor University.

Members of universities and college campuses in Texas would be required to report sexual harassment and assault to the university president within 48 hours of learning about it. Failing to report a sexual assault would constitute a Class A misdemeanor leading to a $4,000 fine and up to a year in jail.

There are some practical concerns about this proposed legislation because a staff member would have to report personal details relating to the victim, raising anonymity issues.

Sexual assault is a very serious crime in Texas. Find out more about the offense and its penalties here.

The post Lawmakers Call for More Action on Baylor University Rape Claims appeared first on Dallas Criminal Defense Attorneys |State & Federal Lawyers.

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What Type of Auto Insurance Coverage Should You Have in Texas?

Originally published by Harron Law.

One of the primary requirements of Texas law involving auto accidents is that the driver who caused the accident must pay. To meet the minimum requirements of this law, each driver must purchase at least the minimum amount of coverage. This liability limit sits at $30,000 for each injured person, $60,000 per each accident, and $25,000 for any property damage done to the vehicle. This is the most basic of coverage and is oftentimes referred to as 30/60/25 coverage. This minimum amount of insurance doesn’t cover everything, which is why it’s essential that you understand all available types of auto insurance coverage and which ones are best for you.

Liability and Collision Coverage
The most important types of auto insurance to have are liability coverage and collision coverage. When purchasing basic liability coverage, this satisfies the minimum requirements by law in the state of Texas. When a person has been covered by liability insurance, that person will be protected if they cause a car accident.

This insurance will pay for a wide range of expenses that the other person involved in the accident requires. These include everything from lost wages and medical costs to car repair and car rental costs. If someone sues you, this insurance will cover your defense costs and attorney fees. This insurance policy extends to your family, other people driving in your vehicle, and family members that attend college or school away from home.

As for collision coverage, this type of insurance covers the cost of replacing or repairing your own vehicle following an accident. The amount paid to you can be the vehicle’s actual cash value, the amount displayed on the declaration page, or the exact amount that the repair or replacement costs. This policy covers you and your family members.

Comprehensive Coverage
Comprehensive coverage is basically designed to protect your vehicle from all other types of damage that don’t have to do with a collision. This can be a very smart pickup on your insurance policy, as it protects your vehicle and the possessions inside if vandalism or theft occurs. In some instances, this coverage will even extend to a rental car while your vehicle is being repaired. The claim is basically limited to the actual cash value of the vehicle.

Medical Payments and Personal Injury Protection Coverage
Medical payments coverage pays for any medical or funeral bills that occur from an accident. This policy covers you, any family members, other passengers, additional injured people, and even pedestrians and bicyclists. This coverage isn’t based on who caused the accident.

As for personal injury protection coverage, it’s similar in nature to medical payments coverage but also provides you with 80 percent of lost income and the total costs of hiring a caregiver. The insurance company you sign with will automatically provide you with $2,500 worth of PIP coverage.

Uninsured/Underinsured Motorist Coverage
This type of coverage protects you if the auto accident was caused by an uninsured or underinsured individual. This also applies to hit-and-run drivers. Any damage done to the vehicle is also covered, but a deductible may have to be paid before any additional coverage is provided.

Towing/Labor and Rental Reimbursement Coverage
There are times when you will need to have your car towed or a flat tire changed. In any event, this policy covers all towing and labor costs associated with such tasks. Rental reimbursement coverage applies to a rental car if your vehicle is being repaired at the time. This coverage provides you with a set daily amount to cover the rental car.

When you operate a vehicle, it’s essential that you have a policy that includes both collision and liability coverage. PIP coverage and uninsured motorist coverage are also necessary. Out of the remaining coverage types, simply choose what you think is best for you. A policy that incorporates most of the coverage types is your best bet. If you’re ever in a car accident in Texas, The Law Office of Eric Harron will assist you in identifying your available legal options.

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Dallas COA Orders Arbitration Based on Electronic Signature and Click Through User Agreement

Originally published by Beth Graham.

Texas’ Fifth District Court of Appeals in Dallas has ordered a health care liability lawsuit to arbitration based on an online click through agreement and a financial responsibility contract that contained an agreement to arbitrate.  In Athas Health LLC d/b/a North American Spine v. Melody Trevithick et al., No. 05-16-00219-CV (Tex. App – Dallas, February 17, 2017), a man, Paul Trevithick, underwent spinal surgery at a Dallas healthcare facility that was owned by Athas Health.  Prior to securing treatment, Trevithick completed detailed paperwork and requested an MRI via Athas Health’s website.

During the surgical procedure, Trevithick’s surgeon unintentionally punctured the dural membrane surrounding his spine.  About two weeks after the surgery, Trevithick unfortunately passed away as a result of Group B Strep Meningitis.  Following the man’s death, Trevithick’s surviving spouse filed a health care liability lawsuit against Athas Health.

In response to the wife’s lawsuit, Athas Health filed two separate motions to compel the case to arbitration.  The first motion claimed Trevithick agreed to arbitrate all claims against Athas Health when he checked a box stating “I accept the Privacy Policy and User Agreement” on the company’s website. In its second motion, the company argued Trevithick agreed to arbitration based on the user agreement and an electronically signed financial responsibility contract regarding payment for medical services received from Athas Health.  After both motions were denied, Athas Health filed two interlocutory appeals with Texas’ Fifth District Court of Appeals in Dallas.

The Dallas court first consolidated the two appeals before examining the facts of the case.  The court then addressed “whether arbitration was required by the arbitration clause in the financial agreement.”  According to the court, neither party asserted that the arbitration clause was ambiguous, nor did the parties dispute that Trevithick’s electronic signature appeared on the financial agreement.  In addition, the Court of Appeals stated neither party claimed “fraud, deceit, or misrepresentation was involved in his signing of the agreement.”

After that, the appellate court turned to the plaintiff’s claim “that Athas is not a party to the agreement and there is no evidence Trevithick entered into the agreement for Athas’s benefit.”  The court determined:

At the top of the financial agreement, the document identifies in bold print Red River Spine as the medical practice and Dr. Will as the physician for Trevithick’s surgery. Based on this, appellees contend the agreement was only between Trevithick, Red River Spine, and Dr. Will. The financial agreement does not define or otherwise limit the parties to the agreement as being only Trevithick, Red River Spine, and Dr. Will, however. Trevithick is the only party whose signature was required by the document. The financial agreement was sent to Trevithick by Athas along with other documents for him to sign. After signing the agreement, Trevithick returned it to Athas electronically. The arbitration provision, which takes up a large section of the financial agreement’s first page and is entirely in bold print, specifically states that it is solely between Trevithick and Athas. The content of the contract, and the circumstances surrounding its execution, indicate that Athas was as much a party to the contract as Red River Spine and Dr. Will and the agreement to arbitrate was solely between Trevithick and Athas.

Even if Athas is not a party to the financial agreement, it can enforce the arbitration provision as a third party beneficiary. See id. at 677. We ascertain the intentions of the parties to a contract by examining the contract’s express language. See Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). Where it is clear from terms of the contract that the agreement to arbitrate was entered into for the benefit of non-signatories, those non-signatory parties may compel arbitration. See id.; Rubiola, 334 S.W.3d at 225–26; Sherer v. Green Tree Servicing LLC, 548 F.3d 379, 382 (5th Cir. 2008). In this case, the language of the contract clearly indicates that the arbitration agreement was intended to benefit Athas as it was the only entity identified in the clause with whom Trevithick agreed to arbitrate. Because the terms of the agreement clearly indicate Trevithick could be required to arbitrate with Athas, Athas may compel arbitration. See Sherer, 548 F.3d at 382.

The Dallas court next examined whether the plaintiff’s health care liability claims fell within the scope of the parties’ agreement to arbitrate.  The court stated that Texas law favors arbitration, particularly in situations where the arbitration clause is broad.  The Fifth District then examined the factual allegations asserted in the complaint before stating:

The financial agreement, along with the other documents submitted simultaneously by Trevithick, all concern or relate to the medical treatment Trevithick sought to obtain through Athas. The arbitration provision specifically states the parties agreed to arbitrate all claims between the parties arising out of services Athas provided to Trevithick relating to his medical treatment. The language relied on by appellees in the billing and payment section of the financial agreement falls far short of forceful evidence of a purpose to exclude health care liability claims from the broad arbitration provision specifically covering claims relating to medical treatment. See Abazi, 348 S.W.3d at 459. We conclude Athas established a valid arbitration clause and the claims in dispute fall within that agreement’s scope.

Since the plaintiff failed to successfully “raise an affirmative defense to the agreement’s enforcement,” Texas’ Fifth District Court of Appeals in Dallas concluded “the trial court abused its discretion in denying Athas’s second motion to compel arbitration.”  The appellate court ultimately reversed and remanded that case.

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Bon Jovi, Social Media and Listening in Your Compliance Program

Originally published by tfoxlaw.

Over the weekend, my wife and I caught the current Bon Jovi This House is Not For Sale Tour. My rock and roll foundation was laid in the 60s/70s so the group is not all that relevant for me. However, they are substantially relevant for my wife so she rocked out the three-hour show as […]

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Not Up in Smoke Yet: Marijuana Laws in Texas 2017

Originally published by Ashley Gilmore.

You have seen it on the news…yet another state has legalized marijuana. It seems as if weed is everywhere, surely Texas has jumped on the bandwagon and legalized it too!…

The post Not Up in Smoke Yet: Marijuana Laws in Texas 2017 appeared first on Fort Worth Criminal Defense Attorney, DWI Lawyer, Sexual Assault Defense.

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Friday, February 24, 2017

Top 10 from Texas Bar Today: Hot Potatoes, Panoramas, and Matters of the Heart

Originally published by Joanna Herzik.

TexasBarTodayTopTenBadgeJune2016To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. Copyrightability of private standards in federal regulationsSusan Ross of Norton Rose Fulbright US LLP @NLegal_Global in Houston

9. Fifth Circuit Reverses Summary Judgment –  Thomas J. Crane of Law Office of Thomas J. Crane @tomjcrane in San Antonio

8. Could This Case Change the DMCA Safe Harbor Provisions? – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

7. Is Harm to a Prosthetic Limb Property Damage or a Personal Injury?Hutchison & Stoy @Hutchison_Stoy in Fort Worth

6. Hot PotatoesDavid Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

5. Give Me the Ring Back! Written Promises Around EngagementsDrew York of Gray Reed & McGraw @GrayReedLaw in Dallas

4. Rare Find: Signed copy of Wigmore’s Panorama of the World’s Legal Systems

3. Online Impersonation: Texas Laws and RegulationsBrett A. Podolsky @BrettPodolsky of Law Office of Brett A. Podolsky in Houston

2. A Matter of The Heart: Moving Forward in the Midst of the Bar Exam Wait – Scott Johns of the Law School Academic Support Blog

1.  “You Have A Call…”Jani Maselli Wood of Harris County Public Defender’s Office in Houston


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A Matter of The Heart: Moving Forward in the Midst of the Bar Exam Wait

Originally published by lawschool academicsupport.

It’s a great time for you – as this week’s bar takers – to reflect, appreciate, and take pride in your herculean work in accomplishing law school and tackling the bar exam. Let’s be direct! Bravo! Magnificent! Heroic! Those are…

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Discounts for savings goals

Originally published by Staff Report.

Now’s the time to tend to your finances and grow your savings. All you need to do is plant the seeds—draft a budget and stick to it, refinance your loans, set financial goals, and get your taxes done early. Beneplace is here to help! As a State Bar member, you have access to products and services to help you get on the road to financial success.

Lower your monthly payment and get $500 cash back with Quicken Loans—you’ll enjoy VIP treatment and complimentary mortgage review. And your mortgage isn’t the only thing you can refinance. Research car or student loan refinance options—if you’re paying more than 6% interest, you might be able to lower your monthly payments by refinancing.

Refinance with SoFi to combine federal and private loans and lower your monthly payment. The average borrower saves $11,780. Or refinance with Earnest and earn a $400 welcome bonus. Earnest looks beyond credit scores, at education, savings, and retirement planning.

Before you file your taxes, don’t forget about tax credits. Check out the Lifetime Learning credit if you or a family member is paying for higher education, or the Saver’s Credit, which can help low- and moderate-income workers save for retirement. With H&R Block, you can get your maximum refund—guaranteed. Use your exclusive discount to save on in-office and online tax preparation. Or keep more of your hard-earned money with TurboTax, the nation’s #1 best-selling tax software—save 15%.

Saving for your next home or car just got easier. BoostUp is a down payment savings platform that helps you save toward your first home or car purchase by getting your savings matched from brand partners, family, and friends.

Current offers provided by Beneplace.

For more information on other discounts you’re eligible for as a member of the State Bar of Texas, visit http://ift.tt/1cS7Rdr.

Texas Bar Private Insurance Exchange
The Texas Bar Private Insurance Exchange is a multi-carrier private exchange designed for State Bar of Texas members and their staff and dependents. Available to both individuals and employer groups, the exchange offers a wide range of health insurance choices and more.

State Bar of Texas – Benefits & Services

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Juror questions during trial, alibis, police uniforms, and fMRIs and lie detection

Originally published by Rita Handrich.

Here’s another combination post offering multiple tidbits for you to stay up-to-date on new research and publications that have emerged on things you need to know. We tend to publish these when we’ve read a whole lot more than we can blog about and want to make sure you don’t miss the information.

Juror questions during trial and the prevalence of electronic and social media research

The National Center on State Courts just published a study authored by a judge in the Pennsylvania Lawyer on whether allowing jurors to ask questions during trial will help resolve issues of electronic and social media research during trial. The judge-author suggests the judicial directives to not conduct any form of research (the instructions usually itemize various forms of social media as examples of “what not to do”) do not stop the research from happening—it simply makes the research surreptitious rather than public. Since this publication is in the Pennsylvania Lawyer, they focus on Pennsylvania jury instructions but also discuss how other venues have used (and controlled) juror questions during trial. The article offers suggestions developed in the subcommittee on civil jury instructions. It is well worth a read if you have questions about the practice of allowing juror questions.

We should question alibis and the weight we place on them during jury deliberations

Given all the concerns about the accuracy of eye-witness testimony, it only makes sense we should also closely examine alibis and whether we simply accept them as true. A new article in Pacific Standard magazine says we need to pay attention to alibis as new research is telling us that accuracy of alibis resemble the vagaries of faulty eye-witness testimony. According to the new research, we tend not to remember mundane events (like where we were on August 17, 2009). The authors of the study described say that the wrong people can end up in jail due to alibi inconsistency and eyewitness mis-identification.

The curious impact of donning a police uniform

New research published in Frontiers in Psychology tells us that putting on a police uniform automatically affects how we see others and creates a bias against those we consider of lower social status. Essentially, say the researchers, the uniform itself causes shifts (likely due to the authority communicated by the uniform) resulting in judgment of those considered to be lower status (i.e., in this study those wearing hoodies were identified as having a lower social status). The researchers think it possible that police officers (who put on their uniforms) may perceive threat where none exists.

Identifying lies with fMRI machines

We’ve written about identifying deception using fMRIs frequently at this blog and here’s a four-page “knowledge brief” from the MacArthur Foundation Research Network on Law and Neuroscience. You can also download this summary at SSRN. This is a terrific (and brief) summary on everything you need to know about what fMRI machines can tell us about deception and what they cannot tell us about deception. You could think of this as a primer on fMRIs and how they work (and don’t work) as well as a guide to deposition testimony of an expert witness touting the deception-identifying abilities of the machine. This resource is very worth your time.

Ciro Civile, & Sukhvinder S. Obhi (2017). Students Wearing Police Uniforms Exhibit Biased Attention toward Individuals Wearing Hoodies. Frontiers in Psychology, (February 6,)



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Rare Find: Signed copy of Wigmore’s Panorama of the World’s Legal Systems

Originally published by Joseph Lawson.

The Harris County Law Library's signed copy of John Henry Wigmore's Panorama of the World's Legal Systems. Signature dated 1936.

The Harris County Law Library has been collecting legal publications for more than 100 years and our historical collection is home to many rare and unique works. Once in a while, we find something so singular that we have to share our find. Earlier this month, a library staff member opened a book cover and discovered the signature of one of the most recognizable names in legal bibliography – John Henry Wigmore.

Wigmore was a well-respected law librarian, professor of law, and dean of Northwestern School of Law in the early 20th century who is remembered as one of the legal community’s most respected scholars for his work Wigmore on Evidence. Even today, the preeminent treatise on evidence – The New Wigmore – drops the subject in its title in favor of the original author whose name is synonymous with the topic. Find more on this extraordinary scholar in the Fall 2013 issue of LH&RB on the American Association of Law Libraries website.

Portrait of John Henry Wigmore. Source: http://ift.tt/2efokwn

Harris County Law Library's copy of Wigmore's Panorama of the World's Legal Systems.

The signed book is a 1936 copy of Panorama of the World’s Legal Systems. The work first appeared as a 3-volume set that provided a unique comparison of various legal systems, complete with photographs, illustrations, and maps. In 1936, West publishing released the library edition to make the content more widely available. As the “intent was to popularize the study of comparative law,” making the format more accessible helped Wigmore’s ideas about foreign legal systems travel well beyond academia. The Law Library’s copy found its way onto the shelves of a local practicing attorney who represented Texas oil companies in the early 20th century and was donated along with other volumes at the end of his practice.

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What Is a Ponzi Scheme?

Originally published by John Floyd.

What Is a Ponzi Scheme

Investopedia defines a “Ponzi scheme” as a “fraudulent investment scam” that promises high rates of return. The scheme is built on the premise that the investments of original investors can be used to generate new investors with the promise that they will receive higher returns based on legitimate transactions from the original investment. Ponzi schemes generally collapse from their own weight within, i.e., the new investor money is not enough to satisfy the demand for returns by the original investors.


Stuart B. Millner, a former Union auctioneer and founder of Stuart B. Millner & Associates (SBMA), knows about Ponzi schemes. He recently pled guilty to federal charges of bank and mail fraud and now faces five years in prison for the “Ponzi-like” activity that he committed.


What exactly did Millner do?


SBMA helped clients sell property. The company would enter into a contract with clients and help them sell property through auctions. The clients would get money from the sale and pay SBMA a commission for their assistance.


Millner was convicted of using money taken from clients to satisfy debts SMBA owed to other clients.


SMBA told clients they would give them the proceeds from sales within 31 days, but didn’t always follow through on this obligation.


To conceal the wrongdoing inherent in these failed obligations, Millner falsified documents to change both the amount a property was sold for and when it was sold. He also provided false information to banks, overstating his property and understating his debt. This fraudulent activity totaled up to $2.5 million over a five-year period.


Why Were Millner’s Actions Called “Ponzi-like”?


Federal Fraud Attorney

 Reports say that Millner was conducting a “Ponzi-like” scheme. You may have heard the term “Ponzi scheme” in movies or high-profile cases, but what exactly is a Ponzi scheme?


Ponzi scheme” got its name from Charles Ponzi, who pulled off the most famous scheme of this sort in the 1920s. These schemes disguise themselves as businesses that promise investors incredible returns for their investment into the company.


The investors are assured that there is little risk involved in the scheme. When the scheme collects enough investors, they begin to pay original investors with funds from the new investors. Those running the scheme will lie to these investors by telling them that the funds they are getting back are from legitimate transactions that made a profit.


A “Ponzi scheme” got its name from Charles Ponzi, who pulled off the most famous scheme of this sort in the 1920s. These schemes disguise themselves as businesses that promise investors incredible returns for their investment into a company.


The investors are assured that there is little risk involved in the scheme. When the scheme collects enough investors, they begin to pay original investors with funds from the new investors. Those running the scheme mislead the original investors by telling them that the returns they are receiving are derived from legitimate transactions that made a profit.


Typically, investments should be transparent and communicated to both investors and the appropriate governing agencies. In Ponzi schemes, however, the investments are usually kept hidden from investors or described as “too complex” to account for. Investments are also typically hidden from the Securities and Exchange Commission.


Ponzi schemes are similar to pyramid schemes, as they constantly rely on new investors contributing to the endeavor for it to succeed. Many Ponzi schemes may offer incentives or rewards to older investors who recruit new investors into the scheme.


These types of schemes can’t last forever, though. Sometimes regulators will recognize the Ponzi scheme for what it is and take legal action against the people at the top of the pyramid. In other cases, the scheme just collapses because new investors stop contributing to it and the executives do not have the income to distribute back to investors. In these situations, the executives usually flee and leave all the investors high and dry.


What Are The Penalties for Committing Ponzi Schemes?


What Are The Penalties for Committing Ponzi Schemes

Stuart B. Millner faces up to five years in prison for his fraudulent activity at SBMA. Bernie Madoff, who pulled off one of the largest Ponzi schemes in history, is currently serving 150 years in prison.


How are these penalties determined?


Charges There is no federal “Ponzi scheme” charge. Millner was charged with two counts of bank fraud and two different counts of mail fraud.  Madoff was charged on 11 counts of money laundering, fraud, theft, and perjury. You can learn more about different fraud-related charges here.


Money Involved The biggest difference between Millner’s scheme and Madoff’s scheme is the sheer amount of money that was taken from victims. Overall, Millner will probably not be held accountable for more than $3 million, unless additional schemes or clients are discovered during further investigations. In contrast, Bernie Madoff scammed around $65 billion out of investors over the course of several decades.


Other Factors Like most criminal charges, other factors, including past criminal convictions, will also play into the sentence upon conviction.


A quick note for anyone who recently invested and is now worried about where they placed their money: if you simply participated in a Ponzi scheme by investing, and were not involved in conducting the scheme or profiting from the criminal activity of the scheme, you will most likely avoid arrest or criminal charges. Victims of Ponzi schemes rarely face criminal repercussions, because they are usually unaware of the fraudulent activity behind the company.


What if you are facing charges related to a Ponzi scheme or another type of fraud?


Hire a knowledgeable fraud attorney and start fighting back.


Federal fraud charges can put you behind bars for years – or even decades – but there are defense strategies that can use to minimize the damage. The best way to protect your future is to reach out to a federal defense lawyer immediately upon being arrested or charged.

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Could This Case Change the DMCA Safe Harbor Provisions?

Originally published by Peggy Keene.

2017 has been shaping up to be an exciting year for copyright practioners. And with Capitol Records, LLC. v. Vimeo, LLC (“Vimeo”), practitioners could see […]

The post Could This Case Change the DMCA Safe Harbor Provisions? appeared first on Klemchuk LLP.

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Hot Potatoes

Originally published by David Coale.

Gatheright bought sweet potatoes from Clark, paying with two post-dated checks. When they were returned for insufficient funds, Clark instituted criminal proceedings against Gatheright, which were ultimately dismissed after Gatheright spent several weeks in jail. Gatheright then sued Clark for malicious prosecution and abuse of process. The Fifth Circuit affirmed summary judgment for Clark, observing that “$16,000 in bad checks . . . [is] a sum greater than what the Mississippi Supreme Court has previously found would prompt a reasonable person to institute criminal proceedings.” Based on that observation, the Court rejected arguments about whether a post-dated check was a proper basis for a “false pretenses” prosecution in Mississippi, and about the effect of Gatheright’s filing for personal bankruptcy. Gatheright v. Clark, No. 16-60364 (Feb. 23, 2017, unpublished).

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Thursday, February 23, 2017

Modifying a Child Support Order in Texas

Originally published by Anita C. Savage.

How Can Child Support Orders be Modified? Child support orders can only be changed by the entering of a new court order. Informal agreements between the parties are not effective to change the amount of court ordered child support. Therefore, while you and the other party may agree to a change in the amount of… Read More

The post Modifying a Child Support Order in Texas appeared first on Goranson Bain, PLLC.

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FDA Drafting Guidelines on Cigar Regulations

Originally published by Robert Kraft.


The Hill reports the FDA is drafting guidelines to clarify health warning statement requirements for cigar manufacturers, distributors, and sellers, and to explain “which companies should submit a cigar warning plan, when to submit it, and what information to include for consumers.”

From the news release of the American Association for Justice.

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South Carolina Supreme Court Provides Guidance On Reserving Rights

Originally published by Nick Farr.

Today, we here at Abnormal Use take a brief hiatus from the realm of product liability todiscuss a recent decision from the South Carolina Supreme Court which will significantly impact insurers doing business in the state. The case, Harleysville Group Ins. v. Heritage Communities, Inc., et al., No. 2013-001281 (S.C. Jan. 11, 2017), is  a lengthy decision addressesing, for the first time in South Carolina, the content of reservation of rights letters. While the opinion also discusses the time on risk allocation for damages awarded under a general verdict and coverage for punitive damages, it is the discourse on reservation of rights letters that needs closer scrutiny.

As with most significant South Carolina insurance coverage matters in recent times, Harleysville arises out of two construction defect lawsuits. A little background is necessary. The underlying lawsuits involved the construction of two condominium developments constructed between 1997 and 2000. After construction was complete and the units were sold, the purchasers became aware of certain construction deficiencies and filed suit against Heritage Communities (and several subsidiary companies), the entities who developed and constructed the developments.

During the period of construction, the Heritage entities were insured under CGL and excess liability policies issued by Harleysville. Heritage was uninsured after its last policy lapsed in 2001. After receiving notice of the lawsuits, Harleysville agreed to defend the Heritage entities under a reservation of rights. According to the Court, Harleysville’s reservation of rights consisted of “generic states of potential non-coverage” coupled with a cut-and-paste of most of the Harleysville policy language. Nonetheless, Harleysville continued to provide a defense to the Heritage entities through trial. In each case, the jury returned a general verdict in favor of the plaintiffs, awarding both actual and punitive damages. Thereafter, Harleysville filed a declaratory judgment action seeking a declaration that it had no duty to indemnify Heritage for the verdicts. In the alternative, Harleysville sought an allocation of which portion of the juries’ verdicts constituted covered damages and whether those portions were subject to a time on risk allocation.

The declaratory judgment action was referred to a Special Referee. After staying the matter pending the South Carolina Supreme Court’s decision in Crossmann, 717 S.E.2d 589 (2011), the Special Referee determined that Harleysville failed to properly reserve its rights to contest coverage. As such, he found that coverage was triggered under the Harleysville policies because the general verdicts included some covered damages. While the Special Referee presumed that the verdict included certain non-covered damages (e.g. the repair/replacement of faulty workmanship), he determined it would be improper and speculative to allocate the general verdicts. As such, he ordered that the entirety of the actual damages was covered under the Harleysville policies, subject to Harleysville’s time-on-risk. In addition, the Special Referee held that the punitive damages were also covered under the policies. The parties subsequently filed cross-appeals.

The Court began its analysis with a review of Harleysville’s reservation of rights letters. The letters, sent in 2003 and 2004, explained that Harleysville would provide a defense, identified the insured entities and the lawsuit, summarized the allegations, and identified the policy periods for the policies. In addition, the letters contained 9-10 pages of policy provisions, including the insuring agreement, exclusions, and definitions. However, the letters contained no discussion of the various provisions or explanation of why Harleysville was relying on them. Except for the claim for punitive damages, the letters did not specify the particular grounds upon which Harleysville disputed coverage. Finally, the letters advised the insureds of potential uninsured exposure and recommended that the insureds consider retaining personal counsel. Also of note to the Court, the letters did not advise the insureds of the need for an allocation of damages between covered and non-covered losses, nor did they reference any potential conflicts of interest or notify the insureds of Harleysville’s intent to pursue a declaratory judgment action.

The Court affirmed the Special Referee’s finding that Harleysville properly reserved its rights as to punitive damages but failed to properly reserve rights to contest coverage for the general verdict. In doing so, the Court noted that a reservation of rights must provide the insured with sufficient information to understand the reasons the insurer believes the policy may not provide coverage. A generic denial of coverage with a verbatim recitation of all or most of the policy provisions is not sufficient. Instead, the insurer must alert the insured to the potential that coverage may be inapplicable; that conflicts may exist between the insurer and the insured; and that the insured should take steps necessary to protect its potentially uninsured interests.

Having found that Harleysville’s reservation was not sufficient, the Court, relying primarily on case law from other jurisdictions, engaged in a lengthy discourse of the requirements of a proper reservation. Significantly, the Court stated that:

  • A reservation must be unambiguous. (citing World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., 695 S.E.2d 6 (Ga. 2010)).
  • Prior to undertaking the defense, the insurer must specify in detail any and all bases upon which it might contest coverage. (citing Desert Ridge Resort LLC v. Occidental Fire & Cas. Co. of N.C., 141 F.Supp.3d 962 (D.Ariz. 2015)).
  • A reservation of rights letter must give fair notice to the insured that the insurer intends to assert defenses to coverage or to pursue a declaratory judgment at a later date. (citing United Nat’l Ins. Co. v. Waterfront N.Y. Realty Corp., 948 F.Supp. 263 (S.D.N.Y. 1996)).
  • Because an insurer has the right to control the litigation, an insurer has a duty to inform the insured of the need for an allocated verdict as to covered and non-covered damages. (citing Remodeling Dimensions, Inc. v. Integrity Mut. Ins. Co., 819 N.W.2d 602 (Minn. 2012); Magnum Foods, Inc. v. Cont’l Cas. Co., 36 F.3d 1491 (10th 1994)).

The Court placed significant emphasis on the fact that an insurer has the right to control the defense and, thus, must keep the insured informed of all potential coverage issues to avoid prejudice. In the Court’s view, one of the primary deficits in the Harleysville reservation of rights letters was the lack of notice to the insured of the need for an allocated verdict as between covered and uncovered claims. Unfortunately, the Court does not expressly state who has the burden of actually seeking the allocation. Some of the language in the opinion seems to place the burden on the insured: “…in no way did the letters inform . . . [the insureds] that they should protect their interests by requesting an appropriate verdict.”  Other language, however, seems to place the burden on the insurer: “. . . an insurer typically has the right to control the litigation and is in the best position to see to it that the damages are allocated . . .” If the burden does, in fact, rest with the insurer, this decision should provide strong ammunition in support of an insurer’s  motion to intervene — which, in the past, South Carolina courts have generally disfavored. 

 Based on Harleysville, insurers must exercise special care when issuing reservation of rights letters.  At a minimum, reservation of rights letters should provide unambiguous notice to the insured of the following:

  • the specific issues raised in the underlying litigation or claim giving rise to the coverage dispute, including the particular grounds upon which coverage;
  • any potential conflicts of interest between the insurer and insured;
  • the intent to pursue a declaratory judgment, if applicable, in the event of an adverse jury verdict; and
  • the need to obtain a written explanation of the jury award that identifies the claims or theories of recovery actually proved and the portions of the award attributable to

Failing to provide a sufficiently specific reservation of rights may result in the insurer being precluded from disputing coverage.  With regard to covered and non-covered claims, because the Court has not expressly stated who has the burden of seeking an allocation/clarification from the jury, it is probably more prudent for insurers to take affirmative steps to protect their coverage position absent further guidance from the Court.

(Hat Tip: Jennifer Johnsen).

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Know How Property and Debts are Divided, When Preparing for Your Texas Divorce

Originally published by Law Office of Bryan Fagan.

Unless you and your spouse have resolved all issues in a divorce, your divorce will more than likely be considered “contested“. If your case is contested and goes to a court the Judge will make decisions regarding dividing the marital property and debts. The following information will help you determine what to expect when preparing your case for court.

Community Property in Texas

One of the first things I do in all my consults with potential clients is start educating what it means for Texas to be a community property state. On its most basic level the general rule regarding community property is that anything you have accumulated from the time you are married until the day you are divorce is part of the marital estate.

An example, would be if you and your spouse purchased a home after you were married than that home would be considered community property. For some potential clients and clients this can be either a relief or cause for grief.

For those frustrated by the news they generally tell me something along the lines that it is not fair because “only their money” had been used to pay for the house. However, Texas does not look at it that way. Texas considers all money earned during the marriage no matter whose efforts have been used to make that money as being marital money.

Separate Property in Texas

If property is separate than it means that it is not subject to division during a divorce, while community property is subject to a “just and right” division.

Exceptions to the general rule that all owned by spouses is community property include:

  1. Property owned prior to the marriage
  2. Inheritance and
  3. Gifts

Separate property issues can be complex and it is best to have the help of a Houston Divorce lawyer to help examine and sort them out. This can either involve:

  1. Attacking whether property is separate or
  2. Helping to protect property as being spate and not community

The Texas Just and Right Division

One of the myths regarding diving property in Texas is that it is 50/50. However, the standard for dividing property during a divorce is a “just and right division.” This means it may be 50/50 however it might not under every circumstance.

What I tell many of my clients is that every case is different. I never have the same facts or people in every case. You may have similar facts and different people and get different results. I have seen everything from a 50/50 split to a 70/30 split.

You can find the language regarding property division in the Texas Family Code Section 7.001:

General Rule of Property Division

“In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”

Generally, when a court is deciding whether to award an unequal division of property the court will consider:

  1. The length of the marriage;
  2. Each spouse’s level of educational;
  3. Future business opportunities and
  4. employability of each spouse,
  5. The disparity in earning capacities or income;
  6. Each spouse’s health and physical condition;
  7. Each spouse’s financial conditions and
  8. obligations;
  9. Disparity in the ages of the spouses;
  10. The existence and size of each spouse’s
  11. separate estate;
  12. The nature of the property being divided,
  13. including liquidity, income production and
  14. possible tax consequences;
  15. The existence of children of the marriage;
  16. Benefits the party not at fault would have
  17. derived from the continuation of the marriage;
  18. Fault in the breakup of the marriage,
  19. including claims of fraud on the community;
  20. Expenses paid to maintain the community
  21. estate during the pendency of the case;
  22. Temporary spousal support paid during the pendency of the case; and
  23. Attorney’s fees and costs incurred during the litigation

Identify the Marital Assets

The court can award all types of property no matter whose name is on it including:

  1. Retirement accounts
  2. IRAs
  3. Bank Accounts
  4. Real or personal property and
  5. Any other property that was acquired during the marriage

One of the tools your Houston divorce lawyer will help you prepare is an Inventory and Appraisement of all community and separate property. This will aid in:

  1. identifying property and
  2. characterizing the property as either community or separate.

It is required by the court should the case go to trial or and is also a useful tool during negotiations in mediation.


If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Other Articles you may be interested in:

  1. Dividing Property in a Texas Divorce – The Just and Right Division
  2. Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
  3. What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
  4. Texas Divorce Property Division Enforcement
  5. Separate Property in a Texas Divorce?
  6. Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
  7. Is Social Security Considered Separate Property in a Texas Divorce
  8. Business Owners and Business Assets in a Texas Divorce
  9. What to do when your divorce decree does not include a marital asset?
  10. High Net Worth Divorce / High Asset Divorce

Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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Online Impersonation: Texas Laws and Regulations

Originally published by Law Office of Brett A Podolsky.

In 2009, Texas lawmakers made it a criminal offense to harass someone online by using false identity. In many states the criminal offense is referred to as cyberstalking. In Texas it’s known as online impersonation.


What is Online Impersonation?

According to Penal Code Section 33.07, it is a felony to use another persona without consent to intentionally intimidate, harm, defraud or threaten anyone. “Persona” refers to using another individual’s identity such as their:

  • Name
  • Domain address
  • Picture
  • Phone number
  • Address
  • Likeness
  • Any identifying information

The person accused of this crime must use the false identity to do one or more of the following to another individual:

  • Send one or multiple messages via a commercial social networking site, Internet, message board or email
  • Create a page of a commercial social networking site or Internet
  • Post one or multiple messages via the Internet, commercial social networking site

Does the Online Impersonation Crime include Sending Text Messages?

Yes. A separate section of the penal code makes it a felony to send email, electronic mail, instant messages or any similar communication to a victim using another person’s identity. The communication is done:

  • Using another individual’s identity without their consent
  • With the intent to make the victim reasonable believe they are communicating with that particular individual
  • With the intent to defraud anyone

The text message, email or instant message must include another individual’s identifying information such as their phone number, name or domain address.

A Texas Man Charged with Online Impersonation

In 2014, a Texas man was indicted for felony online impersonation. He allegedly used his ex-wife’s name to create a Facebook profile. The criminal complaint alleged he created the profile with the intent to defraud, threaten or harm her. He allegedly posted nude photographs of his ex-wife to the profile then sent friend requests to her family and friends. He was also accused of creating a separate Facebook profile using a man’s name and sending friend requests to her family and friends.

Online impersonation has two crimes. The first crime is taking and using a person’s identification without permission. The second part of the crime is using that “stolen” identification to harass, threat or harm the second victim. Sometimes there can be one victim or multiple victims in an online impersonation offense.

Online Impersonation and Identity Theft are Separate Crimes

Identity theft, called fraudulent possession or use of identifying information, is an offense focused on defrauding people of something of value. The identifying information in this crime refers to using or possessing another individual’s:

  • Date of birth
  • Name
  • Fingerprint, voice print, iris image
  • Financial account information like routing number, bank number or address
  • Social security number or any other government-issue identification numbers
  • Telecommunication identifying information or device such as a credit card, account number or personal identification number (PIN)

The information is to obtain use to obtain money, goods, services or transfer funds.

Both online impersonation and fraudulent use of identifying information have something in common. A person committing these crimes must have the intent to defraud or harm the victim. However, a person committing online information has two alleged victims: the individual who has their information used and the individual being harassed or threatened. A person committing fraudulent information usually has one alleged victim.

Fraudulent information can occur online or offline. Online impersonation can only occur online.

The penalty for a fraudulent use of identifying information conviction ranges from a jail felony to a felony in the first degree depending on how many times the information was used. If convicted, a person can spend 180 days in county jail to five to 99 years in prison depending on the number of times the information was used.

Online Impersonation May be a Felony or Misdemeanor

Whether a person is charged with misdemeanor online impersonation or felony online impersonation depends on the type intent a person had. If the accused used another person’s identity to harass, threaten or defraud another individual, it’s a Class A misdemeanor. A Class A misdemeanor is up to one year in county jail and/or a $4,000 fine.

The accused can be charged with felony in the third degree when they use someone’s identity to solicit an emergency response from first responders. A felony in the third degree is punishable by two to 10 years in prison. However, some people have been charged with a felony for online impersonation not involving personal responders.

Online Impersonation can be Hard to Prove in Texas

Online impersonation is considered a broad crime. In fact, in 2016, a McLennan County judge ruled the online impersonation charge was too broad and overly unconstitutional. The ruling was in response to the Texas man appealing his conviction involving creating a Facebook profile and posting nude pictures of his ex-wife.

The judge ruled the definition of “harm” in the statute was too vague. He conceded it someone’s feelings could be hurt by the online impersonation. However, the statute was an attempt to censor free speech.

Contact Brett A. Podolsky about Your Texas Online Impersonation Charge

You’ve been charged with online impersonation. It’s time to fight back. Brett A. Podolsky understands there’s a lot at stake for you right now. Your future, legal rights, and reputation are at risk of harm because of this criminal charge.

Contact Brett A. Podolsky immediately. He will challenge the elements of the online impersonation charge to weaken the prosecution’s case against you. He’ll also build an aggressive and strong defense to prove your innocence.

Hiring a criminal defense attorney is the most important decision you can make right now. You haven’t been convicted of impersonating someone online to harass, threaten or harm an alleged victim. You have time to clear your name.

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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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