CannonLaw Newsletter - December 2004
AFTER AN AUTO ACCIDENT
Many people think that common sense dictates what is to be done after an auto accident. Maybe so, but our common sense can desert us under stress. It is a good idea to keep this simple checklist in your car with your other important papers (registration, etc.).
- Get help for anyone injured.
- Call the police if someone is injured or killed, if a vehicle can't be moved, or if the accident involved a hit-and-run driver.
- Move your car, if possible, to avoid blocking traffic and to protect it from further loss or damage. But be careful--many people are injured at accident scenes each year by other drivers who are not paying attention.
- Get the other driver's name, address, telephone number, license plate number, driver's license number, and insurance information. Give the other driver the same information.
- Record the insurance company name and the policy number exactly as they appear on the other driver's proof-of-insurance card.
- Don't sign anything except a ticket, citation, or report issued by the police.
- Notify your insurance company promptly. It will want the names and addresses of witnesses and injured persons. Never sign any document that gives up a legal right.
- Contact us to find out about your right to recover for your injuries.
- Remember, insurance companies are not in the business of paying claims, no matter what their advertising says. They are in the business of collecting premiums. Insurance adjustors definitely do not have your best interests in mind. Be careful.
Texas law gives you two years to settle or file an accident claim from the date of the accident. Call us to learn all of your legal rights. We will advise you and, if appropriate, we will deal with the insurance company or other parties on your behalf.
HERE'S WHAT OUR FIRM CAN DO FOR YOU
- Evaluate any bodily injury claim to determine the amount of money to which you are entitled.
- Help you with the property damage portion of your claim.
- Resolve complex issues and negotiate an overall settlement.
- Deal with your doctors, obtain your medical records, reports, and billing statements, and notify medical care providers as to who to bill.
- Have an investigator interview witnesses, take statements, and photograph the accident scene and your vehicle.
- File a lawsuit, if necessary.
LAWSUITS BY CHILDREN
Minor children do not have the legal capacity to bring a lawsuit on their own. Any time a lawsuit needs to be brought for injuries caused to a child, such as by a negligent doctor or driver, the suit must be filed by a competent adult, who may be the child's parent, guardian, or even a person called the child's "next friend," which just means anyone with an interest in the child's welfare.
Although the attorney retained by the parent or guardian is often able to protect both the parent's interests and the child's interests at the same time, he or she is technically the adult's lawyer. However, when the attorney, the court, or the involved adult thinks it appropriate, the court may appoint another lawyer to represent the child.
This other lawyer who has been appointed to represent the child is generally referred to as the child's "attorney ad litem ." An attorney ad litem is not hired by the parents and thus is free to act on the child's behalf. Generally, the responsibilities of the attorney ad litem include investigating the child's claims, reporting back to the court about what this investigation reveals, and making sure that the child has an effective advocate.
A court often appoints an attorney ad litem to represent a child if there is a conflict between the interests of the adults and the interests of the child, such as in automobile accident cases where both the parents and the child are badly injured but the defendant has only limited insurance coverage. Other kinds of cases where an attorney ad litem may be appointed include foster-care proceedings involving a child, some kinds of inheritance and contested custody cases.
Like all lawsuits, suits brought on behalf of children are subject to statutes of limitations, which are laws that limit how long you may wait before bringing a legal claim against another person. Generally, the statute of limitations in a personal injury or consumer law case is two years, while the statute of limitations in a contract case is generally four years.
Because children cannot file lawsuits on their own behalf, the statute of limitations on a child's claims are "tolled" (suspended) while the child is a minor. In these cases, if the parent or guardian does not bring a suit on the child's behalf, the statute of limitations on the child's claim does not begin to run until the child becomes an adult at age 18. Thus, if a child is injured in a car accident during his or her minority, he or she would have the right to file suit until he or she turned 20 (i.e., two years past his or her 18th birthday).
Vioxx, a popular arthritis drug, has been withdrawn from the market by its manufacturer, Merck & Co., Inc. Merck is advising patients who are currently taking Vioxx to contact their health-care providers to discuss discontinuing the use of Vioxx and possible alternative treatments.
Vioxx has been associated with serious and potentially life-threatening conditions, including:
- Heart Attacks
- Blood Clots
- Liver Problems
- Kidney Failure
If you are currently taking Vioxx, contact your doctor immediately. If you have suffered from any of these conditions, contact our firm to discuss your legal rights.
DEATH, BURIAL, AND TEXAS LAW
Because most of us do not like to talk about death, people often die leaving their loved ones uncertain about their responsibilities and the wishes of the recently deceased. In an effort to make things easier, here are some frequently asked questions about death and burial.
Who Is Required to Bury Me if I Die?
That depends. Generally, your immediate family is responsible for seeing that you are buried. The order of responsibility among your family members is your spouse first, followed by your adult children, your parents, your siblings, and then your heirs. However, if you want to relieve your family members of this responsibility, you do have the option of signing a directive telling what you want done after you die. This directive may be part of a prepaid funeral plan, or it may be included in your will. If you leave specific instructions about how you want to be buried, the funeral home will carry them out.
If you die without any family, your county of residence will usually see that you are buried, although if you are indigent the county must be notified of your death within 24 hours or it can refuse to handle your burial.
Who Has to Pay for My Burial?
The general rule is that your family is responsible for the cost of your burial. However, you may purchase a prepaid funeral plan or funeral insurance to cover the cost.
What if I Want to Be Cremated?
As is the case with burial wishes generally, you may specify that you want to be cremated, either in your will or in a prepaid funeral contract. Alternatively, the Health and Safety Code has a simple form allowing you to appoint a particular person as your agent to see that you are cremated after you die.
How Can I Donate My Organs?
Texas law provides two ways to donate your organs after you die. The easiest way is for you to make arrangements before death. All adults (and children who have their parents' consent) may make an anatomical gift and may even specify who is to receive the organs after death. This decision to donate one's organs after death may be stated in a will, in a separate document, and even on a driver's license. If a person dies without making an anatomical gift, the deceased person's family generally has the right to determine whether or not to donate his or her organs.
What Is a Prepaid Burial Plan?
Most funeral homes allow you to make arrangements for your burial in advance. Because you are making decisions about your own burial, you relieve your family and friends of the need to make these arrangements at what is sure to be a stressful time, and you can make sure that your wishes are carefully followed. A prepaid burial plan requires that you pay for the services you purchase in advance. However, many plans allow you to pay the bill out of the eventual proceeds of a life insurance policy. For your protection, state law requires a funeral home to disclose the cost of any plan you are considering before you sign the contract to purchase it.
CASE BY CASE
Is It an Accident or a Motor Vehicle Accident?
Although the answer to the question of just what is a "motor vehicle accident" seems obvious (just look for the dented fender), this is not always the case. The Texas Supreme Court recently had to decide whether a person who was injured when he got stuck while getting out of his truck had actually been in a motor vehicle accident.
The man had driven to work and had parked his truck. When he went to get out, his foot got tangled up in the door facing, and he hurt his neck and shoulders when he tried to keep himself from falling. The insurance policy covered "motor vehicle accidents," but the insurer argued that no motor vehicle accident had occurred because there was no other person or vehicle involved.
The court rejected this argument, holding that all that was required for a motor vehicle accident to have occurred was a connection between the use of a motor vehicle and an injury. Because exiting the truck is using it, and because the driver's injury was connected with his attempt to get out of the truck, the court ruled that he was the victim of a motor vehicle accident.
SAFE SHOPPING ONLINE
The explosive growth of the Internet is well-known. With the growth of the Internet has come an explosion of Internet shopping. The following tips will allow you to stay safe as you buy on the web.
Make sure that communications between you and an online merchant are conducted through a secure Internet browser. Using a secure connection makes it far more difficult to steal private information from consumers, such as credit-card numbers. An easy way to check to see if your browser is secure is to look in the address line: If you see "http" before the web address, that means the connection is secure.
If the online merchant either requires or permits you to set up a user account, keep the password to your account private and do not use anything obvious, such as a phone number or birthday. You would not tell someone your ATM pin number, and you should not reveal your account passwords either.
The Internet is a lot like Main Street: Some merchants are trustworthy, some less so. Make sure you buy only from recognized companies that you know. Companies that have a regular store or a catalog business are often more safe than Internet-only companies because you know they are more than just a webpage in cyberspace. It is easier for a crooked merchant to close up his shop on the Internet than it is to close up his shop on Main Street.
Always pay by credit card. Although some merchants allow you to pay directly out of your checking account, federal law permits certain credit-card charges to be put on hold while a claim is being investigated, and it limits your liability for unauthorized charges made on your card to $50.
Keep records of the transaction. Most Internet merchants will send you an e-mail confirming your order, but also be sure to keep a printout of the order, just in case the e-mail does not arrive. Also keep track of any transaction numbers that you are given, which will make it easier to track your order.