Lawyers.com Blog

David Allen - Mother's Twin Sister Seeks Visitation Rights

nospam@example.com (David Allen) — Wed, 16 May 2012 11:59:05 -0400

Attorney David Allen considers a case in which an identical twin seeks visitation rights for her niece. Her twin sister died after she gave birth to a daughter. The effort by the aunt to obtain visitation rights was opposed by the little girl's father. The aunt argued that since Minnesota state law allowed courts to grant visitation rights to grandparents, it was logical the law should extend visitation rights to a twin sister. The father argued the statute should be literally construed. The case was finally resolved by the Minnesota Supreme Court. To view David Allen's analysis of this case, click on the You Tube Link below:

http://youtu.be/vKkynDCc7-Q

David Allen & Associates helping injured and disabled people throughout the west for 30 years.

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Visit our offices for a free initial consultation.

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The Wheels on the Bus ..... Sometimes Fall Off!

nospam@example.com (Carol A. Simpson) — Wed, 16 May 2012 10:50:45 -0400

By Dr. Carol A. Simpson - Associate
Eichelbaum Wardell Hansen Powell & Mehl, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

The
day you drive away in a new vehicle is always exciting. So is the day that the new vehicle breaks
down on the side of the road, though it is exciting in a different way. No one
knows when a bus or other vehicle the district purchases may turn out to be a
lemon. Though such an occurrence is unlikely, it is also unpredictable. It is always better to be prepared for that
event rather than lamenting that you wish you had the necessary documentation
to prove your vehicle is a lemon and possibly qualify to have the manufacturer
buy back or replace the vehicle.

A
problem vehicle has three ways to be declared a “lemon”:

1.
The
vehicle was in the shop for the same problem or defect twice within the first
12 months or 12,000 miles (whichever comes first) AND twice more during the 12
months or 12,000 miles following the first repair AND the problem is still not
repaired; OR

2.
The
vehicle was taken for repair of a serious safety hazard once during the first
12 months or 12,000 miles (whichever comes first) AND once more during the 12
months of 12,000 miles following the first repair AND the problem is still not
repaired; OR

3.
The
vehicle was out of service for warranty repair for a total of 30+ days (not
necessarily consecutive days) during the first 24 months or 24,000 miles, AND
there were two repair attempts during the first 12 months or 12,000 miles after
delivery, AND a substantial problem still exists. Days for which you had a
loaner vehicle do not count toward the 30 days out of service. Tex. Occ. Code Ann. § 2301.605 (West 2012).

A
“serious safety hazard” is a life-threatening malfunction that substantially
impedes a person’s ability to control or operate a vehicle for ordinary use or
intended purposes, or creates a substantial risk of fire or explosion. Tex. Occ. Code Ann. § 2301.601(4) (West
2012).

While
there are state laws that protect consumers (including school districts) from
lemon vehicles, there are certain documents that are required to make a Lemon
Law claim. Because the timeline to file
a Lemon Law claim is tight, it is essential that districts always maintain
these records on vehicles, especially buses, so when problems start to pile up,
the documents are ready and available.

The Invoice

The
first document you will need to produce to make a Lemon Law claim is the
purchase invoice. The invoice should
show the date the vehicle was delivered, the company selling the vehicle, and
the mileage on the vehicle when it was delivered. Many school districts purchase their vehicles
through the TASB “Buy Board”, but the vehicle is actually invoiced from a
vehicle dealer. It is the dealer’s
invoice that you need to retain. The
dealer must also provide you a Manufacturer’s Certificate of Origin, which will
show the mileage on the vehicle at the time of delivery. Keep this document, as
well. Also keep the card of any sales representative that you deal with during
the transaction.

The Warranty

Virtually
every new vehicle comes with some sort of manufacturer’s warranty. By state law, every school bus must have a
bumper-to-bumper warranty for the first two years of ownership, with unlimited
mileage. 37 Tex. Admin. Code § 14.52(a).
This is known as the Texas Minimum Warranty. The dealer must provide the
Manufacturer’s New Vehicle Warranty, plus a warranty of every major component
part. These will be the warranties for the tires, battery, engine and possibly
the chassis. ALL these warranties are essential documents when making a Lemon
Law claim, so they should not be discarded or left in the glove box of the vehicle.
In addition, a bus warranty start date can be reset from the actual delivery
date to the date the bus actually begins service in your district if you notify
the delivering dealer of the date on which you place the bus in service. To
reset the date, you must give notification of the in-service date to the
delivering dealer within 90 days of the original delivery date. This conserves the district’s warranty if,
for example, you receive a bus in early June but do not put the bus into
service until the beginning of the following school year.

The Pre-Service Checklist
(buses only)

The
Texas School Bus Specifications require that a school bus purchaser complete a
pre-service checklist and keep the completed form with the bus title. An example is found in the Texas School Bus
Specifications brochure that is available through the Texas Administrative Code
website as the attached graphic in 37 Tex. Admin. Code § 14.52(a).

The Repair Invoices

Because
an initial repair within the first 12 months or 12,000 miles triggers the
remedies of the Lemon Law, it is essential to demand an invoice for any
warranty service. Dealers are sometimes
reluctant to provide such invoices, especially since they do not charge the
district for warranty service. However,
if the same issue recurs to the point that you may have a Lemon Law claim, you
will need to produce evidence that you have had the vehicle in for repairs for
that defect, and the mileage on the vehicle at the time of each repair. That
information is typically found on the repair invoice. The repair shop will probably not mail you a
copy of the invoice later. Ask for the
invoice at the time you pick up the vehicle, and wait for it to be printed, if
necessary. If a vehicle is inoperable
and you are unable to reach the delivering dealer to have the vehicle towed,
have the vehicle towed yourself but get an invoice for the tow. A bus that
cannot be operated at all is a “serious safety hazard.”

The Maintenance Records

In
defending a Lemon Law claim, manufacturers will want to see your maintenance
records for the vehicle. Make sure you have some documentation of every oil
change, every tire rotation, every coolant change per the manufacturer’s
specifications. While commercial records
are just fine and typically identify the mileage on the vehicle at the time of
the service, locally kept records for in-house service are acceptable, as well,
but make them consistent. The more
information on the date, mileage and service performed (including grade of oil,
type of filter, etc.) the better.

Before
you file your Lemon Law claim you will want to consult with your district’s
attorney about additional steps to take. The attorney will want to see the
above documentation to verify the claim. The manufacturer will get one more
chance to repair the problem, and will probably bring a consulting engineer to
try to intimidate your personnel. You must make sure that your transportation
folks are on the same page regarding the condition of the bus and are prepared
to verify that the problem still exists. Good documentation can be the key to a
replacement vehicle.

An Apple a Day May Keep the Doctor Away--But Not the Feds

nospam@example.com (Sterling T. Burleson) — Wed, 16 May 2012 10:47:50 -0400

By Sterling T. Burleson, II - Associate
Eichelbaum Wardell Hansen Powell & Mehl, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

Recently, some Texas school districts have
received a “medical expenses reimbursement claim” from certain federal
entities, including military branches of the U.S. government. These
reimbursement claims seek payment from school districts for medical services
rendered to students who are insured by the federal entity. Citing the federal
Medical Care Expense Recovery Act (MCRA), the reimbursement claims most often allege
that a student was injured while on school property, and that the school
district is responsible for the cost of the medical care. As discussed below, it appears that in most
cases an argument can be asserted that MCRA does not allow federal entities to
collect reimbursement from Texas public school districts.

MCRA - What
does it mean?

The Medical Care Expense Recovery Act grants
to the U.S. government a right to recover from a third-party tortfeasor,
meaning someone who causes or is financially liable for an injury the
reasonable value of medical services that have been furnished by the U.S.
government.^{^[1]} MCRA
grants a right of recovery only when the injuries for which the medical care or
treatment were furnished arose under “circumstances creating a tort liability”
upon some third party.^{^[2]} MCRA
requires the U.S. government to prove that the third party committed a tort
against the beneficiary and that the tort necessitated the medical care in
question.^{^[3]} This
means that should the U.S. government sue a third party (including a school
district) for the reimbursement of medical expenses, it would be required to
prove that the third-party was liable to the alleged injured person in tort.

What
about school districts?

As you know, Texas public school districts
are generally immune from tort claims.^{^[4]} Unfortunately, courts have
not addressed the specific issue of whether a Texas school district’s immunity
would bar the federal government from recovery under MCRA. However, the courts
are clear that 1) the U.S. government must show tort liability based on state law,[5]
and 2) the right of the U.S. government to be reimbursed under the MCRA is
subrogatory in nature.[6]
Because of the subrogatory nature of recovery, the argument can be made that, under
state law, Texas governmental immunity would bar the U.S. government’s recovery
from a Texas school district under MCRA.

What is
subrogation?

The law is clear that the right of the U.S.
to be reimbursed under the MCRA is subrogatory in nature. This means that the
U.S. would be “standing in the position of the injured person” to bring a claim
against the alleged tortfeasor.^{^[7]}
Therefore, because a person who received medical services would have no right
bring a tort claim against a Texas school district, the U.S. government would
have no right to sue the school district on
behalf of that person.

Some courts have indicated that state defenses
would not apply to claims for
recovery under MCRA. For example, the 3rd Circuit has held that state family
immunity laws do not bar the U.S.’s recovery under the MCRA.^{^[8]}
Additionally, the 5th Circuit has stated that the U.S.’s right to recovery is
not limited by state “procedural bars.”^{^[9]} However, other courts have
held that when state law prevents recovery in tort, recovery cannot be possible
under MCRA.[10]
Additionally, a federal bankruptcy court in Michigan stated that under the
MCRA, circumstances creating tort liability cannot exist when tort liability
would be barred due to state procedural defenses.^{^[11]} Using this reasoning, the U.S. would not be successful
in bringing a claim against a Texas school district under MCRA, when the claim
would ordinarily be barred by state governmental immunity.

If at any time your district receives a “claim
for reimbursement” of a student’s medical services under the above federal
statutes, it is important that a copy of that notice be provided to the
district’s insurance provider as soon as possible. Many times, it will be the
insurance provider’s decision as to whether such claim will be challenged.

The information contained in this article is
not intended to constitute legal advice. Please contact your school attorney if
you have any questions regarding claims for reimbursement of medical expenses.

[1] Holbrook v. Andersen Corp., 996 F.2d 1339, 1340 (1st Cir.1993); 42 U.S.C. § 2651.

[2] 42 U.S.C. § 2651(a); Thomas v. Shelton, 740 F.2d 478, 481 (7th Cir. 1984).

[3] In
re Dow Corning Corp., 250 B.R. 298, 326 (E.D. Mich., 2000).

[4] The Texas Tort
Claims Act does not apply to school districts except as to motor vehicles. See Tex.Civ.Prac. &
Rem.Code Ann. § 101.051.

[5] U.S.
v. Trammel, 899 F.2d 1483, 1487 (6th Cir. 1990); Heusle v. Nat. Mut. Ins. Co., 628 F.2d 833, 838 (3rd Cir. 1980).

[6] U.S. v. Ft. Benning Rifle and Pistol
Club, 387 F.2d 884, 887 (5th Cir. 1967).

[7] James
v. Frederick Cnty Pub. Schs., et al, 441 F.Supp.2d 755, 761 (D. Maryland,
2006) (discussing analogous statute, Title 10 § 1095).

[8] United States v. Moore, 469 F.2d 788 (3d Cir.1972) (holding that the Government's claim
under the MCRA was not subject to Maine's state family immunity laws).

[9] U.S.
v. Haynes, 445 F.2d 907, 910 (5th Cir. 1971).

[10] See
Trammel, 899 F.2d at 1487; James, 441 F.Supp.2d at 761.

[11] In
re Dow Corning Corp., 250 B.R. at 326.

$ (Doe) v. Covington ISD

nospam@example.com (Dennis J. Eichelbaum) — Wed, 16 May 2012 10:44:46 -0400

By Dennis J. Eichelbaum - Managing Sharedholder
Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
800.488.9045 | www.edlaw.com | information@edlaw.com

In a
nearly 26 page opinion, the entire Fifth Circuit once again skewered, with an
en banc opinion, certain judges within its court for not following its
precedent: precedent that is extremely important to school districts. The Court
found as follows:

For the third time, the en banc court
is called upon to decide whether a public school student has stated a
constitutional claim against her school for its failure to protect her from
harm inflicted by a private actor. Relying on our prior en banc opinions, the
district court found that she had failed to state a claim and dismissed her
complaint. A panel of this court reversed in part, concluding that the student
had a special relationship with her school under DeShaney v. Winnebago County Department of Social Services, 489
U.S. 189 (1989), and that the school was therefore constitutionally obligated
to protect her from acts of private violence. The panel nevertheless granted
qualified immunity to those defendants sued in their individual capacities. We
granted rehearing en banc, thereby vacating the panel opinion. We now hold that
the student did not have a DeShaney
special relationship with her school, and her school therefore had no
constitutional duty to protect her from harm inflicted by a private actor.

Doe
v. Covington Indep. Sch. Dist.,
__ F.3d __, 2012 WL 976166 (5th Cir. 2012), March 23, 2012.

What
makes this decision so relevant to schools is the fact that it slaps down AGAIN
the unending efforts by both plaintiff lawyers and now certain judges to expand
a school district’s liability to create a federal constitutional duty to
protect students from harm inflicted by persons over whom the school exercises
no control. While it is quite understandable for a typical member of the public
to think that when a child is sent to school, the school has a moral and legal
obligation or duty to keep that child free from harm, those who work for
schools know not only how difficult that would be, but also how costly. That’s why the Texas legislature has limited
a school’s liability for negligence.[1] It is unimaginable how
expensive it would be to pay for each time a child fell from the bleachers, got
his finger jammed in a locker, lit themselves on fire with a Bunsen burner, or
slipped on a floor. Doe v. Covington
was another effort to find a federal constitutional duty to protect children from
negligent acts of others at school, since Texas law, as well as many other
states, provides such limited avenues for money damages in the face of broad immunity.

The
facts of Doe v. Covington are simply
horrible. A nine year old child was “checked-out” of school by a molester on
six separate occasions. The molester was not a relative, was not on any
approved list or form, and he signed the child out as both her father and her mother. The school employees obviously
did not perform their duties in the manner that anyone would be expected to do.

The
issues in Doe v. Covington involved
whether schools have a (1) “special relationship” (giving rise to a duty to “protect”
Jane Doe), and (2) was there a “state-created danger” by the school.

The
Fifth Circuit had previously held that “special relationship” did not exist
between public schools and students. DeShaney,
mentioned by the Court, involved a child who was removed from the home due to
an abusive father; after returning the child, the father beat the child nearly
to death, and the department of social services was sued over the “special
relationship” the plaintiff claimed was due to this child by the state. The
U.S. Supreme Court found that the father was a private actor, and that the state
cannot be responsible for crimes and misconduct by non-state actors. In Doe v. Covington, the issue was whether
the school had a “special relationship” requiring the school to protect Jane
Doe. Just as in other cases, the Fifth Circuit held that no special
relationship exists, because neither the child nor the criminal were state
actors or within the control of the state.
Had Jane Doe been in prison, the state would have had a special
relationship because it would have controlled her liberty and therefore it would
have owed her a duty to protect her from state actors and private individuals.

The
decision does not necessarily make sense immediately: Jane Doe would have had a better chance suing
had she been a criminal than a nine year old little girl? Yes. But had Doe v. Covington been decided
differently, the floodgates in the Fifth Circuit would have opened, and schools
would have been subject to damages of tsunami proportions. If there were a
constitutional special relationship owed to Jane Doe, there could be lawsuits
from every bullying situation, every student that brings a gun to school,
possibly every child injured at school.

Similar
to the special relationship theory being rejected by the Fifth Circuit as it
applies to schools, a state-created danger theory of liability has never been
adopted by the Fifth Circuit. See Kovacic
v. Villareal, 628 F.3d 209, 214 (5th Cir. 2010). The Fifth Circuit also
addressed the issue and held similarly in the bonfire cases involving Texas A
& M. See Breen v. Texas A & M
Univ., 494 F.3d 516, 518 (5th Cir. 2007). A state-created danger could
exist when the government places a
person in a more dangerous situation than she was before the state was involved
(e.g., passenger of an impounded vehicle, who was raped after officers
abandoned her on the side of a road in a high crime area in the early morning
hours). See Wood v. Ostrander, 879
F.2d 583, 586 (9th Cir. 1989). While several other circuits have adopted the
state-created danger theory, the Fifth Circuit has rejected it.

So
why are there lawsuits involving teacher-student relationships? Because a teacher is a state actor. But what
about student-to-student relationships, which do not involve state actors?
Those lawsuits come under Title IX, not the constitution, and the Supreme Court
said that law afforded those plaintiffs a remedy under federal law.
Interestingly, the case that decided that, Davis
v. Monroe County Board of Education, 526 U.S. 629 (1999), was a 5-4 vote,
and might be decided differently today.

Our
schools’ relief at the decision in Doe v.
Covington should not be seen as uncaring or an excuse to be less diligent;
on the contrary, it is our sacred duty to do our best to protect our students.
We should still terminate employees that do not do their utmost to protect
children. At least now we can spend school funds hiring the best personnel to
protect our children, instead of on insurance premiums.

[1] This is not to say that there have
not been attempts by members of the legislature to eliminate schools’ immunity
in this arena; each legislative session there is at least one bill trying to
eliminate such immunity.

FERS & CSRS Federal Disability Retirement from the Office of Personnel Management: Medical Support, Belief, Documentation and the Diagnosis

nospam@example.com (Robert R. McGill) — Wed, 16 May 2012 06:46:40 -0400

Ultimately, in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, one must always remind one's self that this is a "paper presentation" (regardless of the prevailing and inevitable march towards a paperless society) to the U.S. Office of Personnel Management (OPM). As such, there are certain inextricable components in the presentation itself, which must be reviewed, evaluated, and decided upon before proceeding. As a "presentation" which is meant to be persuasive -- i.e., proving by a preponderance of the evidence that one is entitled to the Federal Disability Retirement benefit, whether under FERS or CSRS -- it must obviously have the essence of the proof itself: Medical Support. Without the medical support, one need not consider moving forward at all. Once the Federal or Postal employee has ascertained that he or she has the medical support to proceed, then the question is one of obtaining the documentation which confirms such support. For, a pat on the back and a wonderful smile from the doctor will not be persuasive to OPM; the doctor must be willing to document, in detailed format, the support which is expressed. Next, in sequential order, the medical documentation must reveal, convey, and persuasively reflect, a level of belief which will be tested in the event that the Federal Disability Retirement application is denied at the First Stage of the Process, and further tested if it is denied at the Second, or Reconsideration Stage, of the process. Thus, in short, the treating or supporting doctor must possess a level of belief in one's case, and be willing to support that belief throughout the entire administrative process. Finally, the doctor must be able to make a diagnosis, but more than that, to support the diagnosis, and be willing to make the "nexus" between the diagnosis, the patient's physical, emotional and cognitive capabilities, and to relate them to one's positional duties of one's job. It is through this process of connecting the dots, where the end-goal is achieved: of obtaining one's Federal Disability Retirement benefits.

Sincerely, Robert R. McGill, Esquire

Proving Driver Negligence in San Diego Bicycle Accidents

nospam@example.com (Mike Bomberger) — Wed, 16 May 2012 02:09:40 -0400

One of the most common causes of San Diego bicycle accidents is driver negligence. Negligence is defined as “failure to exercise reasonable care.” Sadly, many cyclists suffer as a result of a driver’s inability to exercise reasonable care when operating a car. Some examples of driver negligence, include:

Driving while talking or texting on a cell phone
Driving while under the influence of alcohol or drugs
Failure to obey traffic signs or signals
Failure to check mirrors when backing up or making a turn
Driving while tired
Driving above the speed limit
Failure to yield the right of way.

Consequences of Driver Negligence

According to the California Highway Patrol (CHP), hundreds of cyclists are injured in collisions with cars every year in San Diego. Cyclists’ injuries are usually catastrophic due to the fact that cyclists have nothing but a helmet to protect them from an impact with a car. Examples of catastrophic injuries are: head injuries, broken bone injuries, blunt force trauma, torn muscles and ligaments, brain injuries, severed limb injuries, large puncture wounds, and spinal cord injuries. Tragically, many San Diego cyclists suffer fatal injuries. In 2009, 57 cyclists were killed in San Diego bicycle accidents, reports the CHP.

See Justice Served

After suffering a serious injury in a San Diego bicycle accident caused through no fault of your own, you may be wondering what, if any, justice can be sought? How can the driver of the car that hit you be held accountable? Oftentimes, filing a personal injury claim is the only way victims can ensure the at-fault driver is held accountable. However, before the driver can be made to pay for the harm they have caused, you must prove the driver acted negligently and as a result of the driver’s negligent behavior, you were harmed.

A skilled San Diego bicycle accident lawyer should have the resources and knowledge needed to help you prove negligence on the part of the driver. When selecting a lawyer to represent you, look for a San Diego bicycle accident lawyer who will hire expert witnesses, conduct a detailed investigation of your case, and who will work with top trial experts.

Determining Your Eligibility to File a Claim

To determine your eligibility to file a personal injury claim, speak to a competent personal injury lawyer. Almost all San Diego bicycle accident lawyers will not charge you for a consultation.

Avoid Fraud, Prosecution by Telling the Truth in Bankruptcy

nospam@example.com (Roddy Lanigan) — Wed, 16 May 2012 00:53:17 -0400

Tell the Truth About Assets, Income, Savings in Bankruptcy

Perjury in the midst of bankruptcy is not a crime that can be dismissed. Perjury cannot be ignored or waived in the context of bankruptcy. Be honest and think carefully when you sign bankruptcy forms and official papers when you file for bankruptcy in Florida, there's a list of your debts, creditors, income, savings, investments, bills and many other financial disclosures. On one form you swear that you are telling the truth about your information.

You'll sign final bankruptcy papers stating that information that you provided is complete, thorough, accurate, not misleading. Failing to disclose assets is against the law. Your bankruptcy case could be dismissed, but perjury will not. If the court thinks that you intentionally left information out or made false statements you're guilty of perjury.

Should you decide to move forward with any bankruptcy, before you sign bankruptcy papers, don't try to hide, forget, twist or change the facts about any asset you own, will own, have part ownership of or are in the process of owning.

Include all your debts -- because all your creditors are included in the court case. A creditor may be contacted and should you leave a creditor you "like" off, your bankruptcy may be dismissed.

Here's a quick list of the assets that have to be reported:

Property
Tax refunds
Inheritance, judgments
Life insurance, trust funds
Investments, annuities, stocks
Pensions, trust or retirement funds

Jail is not out of the question if you are prosecuted for fraud. Disclose everything or don't sign the bankruptcy documents. You may face criminal charges and your bankruptcy could be dismissed if you're caught.

Consult with Orlando bankruptcy, foreclosure and mortgage workout lawyers Eric Lanigan and Roddy Lanigan. If and when you're facing bankruptcy provide the Lanigans with all of your assets information. You can consult with the Lanigans who will explain to you the detriments of lying on bankruptcy forms.

There are Florida exemptions allowed. So whether Chapter 7, Chapter 11, Chapter 13, you're allowed to keep some of your assets. Find out which exemptions in the state of Florida apply to your case and which bankruptcy makes sense for your financial situation.

Be honest with the Lanigans when you start making your lists and providing documentation.

If you're not sure if there's a creditor you owe, or an investment or property item that will be an asset, provide it so that it won't be disputed in a Florida court of law.

Continue reading "Avoid Fraud, Prosecution by Telling the Truth in Bankruptcy"