Texas Drivers, beware. New laws take effect September 1, 2009 impacting seat belt usage, carrying concealed handguns, driver licenses and motorcycle operation.

The Texas Department of Public Safety (DPS) has issued a summary of the new
 laws passed by the Texas Legislature. 

Among those laws that may affect the property casualty insurance
industry are:

Seatbelts
 
HB 537 requires all occupants of a vehicle, no matter their
age, to be secured by a safety belt, no matter where they are seated in
the vehicle; changes the definition of a passenger vehicle to include a
passenger van designed to transport 15 or fewer passengers including the
driver; removes the current exemption for third-party Medicaid
transportation provisions regarding the use of child passenger safety
seats; and prohibits a motorcycle operator from carrying a passenger
under the age of 5 unless the child is seated in a sidecar attached to
the motorcycle.

SB 61 amends the existing statute regarding child passenger safety
seats. The bill requires that any child younger than 8 years of age be
restrained in an approved child passenger safety seat unless the child
is at least 4 feet, 9 inches in height. The fine is no more than $25 for
a first offense and $250 for a second offense. The law also creates a
new court cost for conviction of an offense under this section to be
collected and used by TxDOT to buy safety seats for low income families.
The law becomes effective on Sept. 1, 2009, but tickets for this offense
cannot be issued until June 1, 2010. Police officers are allowed to
issue a warning before that date.

Driving
 
HB 55 makes it illegal to use a wireless communication device
in a school zone unless the vehicle is stopped or a hands-free device is
used. Cities or counties wanting to enforce this law must post a sign at
the beginning of each school zone to inform drivers that using a
wireless communications device is prohibited and the operator is subject
to a fine. It is a defense to prosecution if the operator was making an
emergency call.

HB 2730 increases the penalties for driving while intoxicated with a
child passenger by adding an automatic driver license suspension period
for first-time offenders and an increased suspension period for repeat
offenders. The driver license re-instatement fee for completing an
education program will rise from $50 to $100. Closes a loophole so a
person who commits an offense as a minor cannot circumvent the driver
license penalty if the person turns 21 before their court date.
 
HB 2012 creates two new punishment enhancements: a Class B misdemeanor if a person drives with a suspended license and without insurance; and a class A misdemeanor if the person driving without insurance or a valid driver license has an accident and someone is seriously injured or dies as a result of that accident.

SB 129 authorizes neighborhood electric vehicles (NEVs) to be operated
on roads with a posted speed limit of 45 miles per hour or less. The
bill authorizes driver license holders to operate NEVs without having a
motorcycle endorsement, clarifies that drivers and passengers in such
vehicles are not required to wear helmets and specifies that enclosed
three-wheeled vehicles as described in the bill are authorized to
operate in preferential lanes.

Concealed Handguns: HB 2730 amends numerous provisions regarding
concealed handgun licenses (CHLs), including eliminating student loan
defaults as a disqualifier, to clarify that DPS must suspend or revoke a
license when the licensee becomes ineligible and mandating that a
magistrate suspend a CHL held by the subject of an emergency protective
order.

HB 2664 provides a defense to prosecution if a concealed handgun license
holder carries a concealed handgun into an establishment that gets 51
percent or more of its income from the sale of alcoholic beverages, but
has failed to post the statutorily required notice that it derives 51
percent or more of its income from the sale of alcoholic beverages.
(Under current law, a concealed handgun licensee can be charged with a
Class A misdemeanor for doing this.)

HB 2730 removes DPS authority to suspend a concealed handgun license
(CHL) for the holder’s failure to display the CHL to a peace officer on
demand. It removes associated penalties and suspensions for the failure
to display.

Driver’s License
 
HB 2730 requires that all applicants under the age of 18
take the driving skills exam to receive a driver license. The law also
requires that a provisional driver license (under 18) or instruction
permit expire on an individual’s 18th birthday, removes the requirement
that a provisional driver license or instruction permit be renewed
annually and increases the fee for those licenses from $5 to $15. It
also extends the current phase-two restrictions for holders of a
graduated driver license from 6 months to 1 year. These restrictions
include limited night driving, prohibited use of wireless communication
devices and a limited number of passengers.

HB 339 increases the total hours of behind-the-wheel driving instruction
a teen receives from 14 to 34 and creates an adult driver education
requirement for applicants older than 18 and younger than 21.

SB 1317 creates a six-hour driver education course required for driver
license applicants 18 years of age or older. It also mandates that
applicants 25 or under must submit to an approved driver education
course. (Goes into effect March 1, 2010.)

SB 328 gives DPS the power to suspend a minor’s driver license if they
fail a breath or blood alcohol test while operating a watercraft.
Chapter 524 of the Transportation Code also clearly defines the
suspension period for an individual who was under the age of 21 at the
time when the offense of boating under the influence or driving under
the influence of alcohol occurred. The law also increases the
reinstatement fee for a license suspended under sections 49.04-49.08,
Penal Code from $50 to $100.

HB 2730 increases the driver license sanction from a one-year CDL
license disqualification to a lifetime disqualification if a person uses
a motor vehicle to transport, conceal or harbor an alien. If a child is
engaged in conduct involving a severe form of trafficking persons, a
judge at a juvenile hearing is required to order the juvenile’s driver
license or permit to be suspended.

HB 2730 prohibits DPS from issuing a driver license or identification
card to a person who has not established a domicile in Texas. The law
specifies that an applicant may receive a driver license at a post
office box only if the applicant’s residence address has also been
provided, with some exceptions.

Motorcycles

SB 1967 requires that applicants for an original class M license or class A, B or C driver license (including commercial driver licenses and permits) with authorization to operate a motorcycle, provide evidence of completion of an approved motorcycle operator training course. It also repeals the helmet exemption sticker program.

Current law requires a person be covered with a minimum of $10,000 in
health insurance for injuries incurred in a motorcycle accident to be
eligible for an exception for the offense of operating or riding a
motorcycle without a helmet. As of Sept. 1, the minimum amount is
removed.

The bill requires the Texas Department of Insurance to prescribe a
standard proof of health insurance for issuance to persons who are at
least 21 years of age and covered by an applicable health insurance
plan. The law also increases the penalty for failure to yield the
right-of-way if there is a crash that results in injury to a person
other than the motorcycle operator.

Several years back, the “fake test” was hotly debated in medical and legal circles.  Doctors were testing patients involved in personal injury litigation to determine if they were faking or exaggerating their complaints through the Fake Bad Scale, a test of 43 true-or-false questions designed to identify patients who were not telling the truth about their injuries and complaints.

Such a test would be very helpful to juries hearing all sorts of disputes at the courthouse. Imagine the trial outcomes if the jury could administer a lying test to witnesses and parties as part of the jury’s essential role-to asses the credibility of the witnesses and parties.  Unfortunately, such a test does not exist. But, the credibility, demeanor, and appearance of the parties and their witnesses maintains its stronghold as the single most important factor in a jury’s analysis of the facts and law.

Before proceeding to trial, a party must consider the appearance, demeanor and credibility of its representatives and its key witnesses. Ultimately, a jury decision will be based on factors not entirely related to the facts-who the jury likes and who the jury believes.  If the corporate representative gets mad easily, dresses poorly, looks odd, forgets easily, or has any number of other negative factors, these need to be weighed against the opposing witnesses.

If the star witness for the case has  a background subject to attack on credibility issues,  this factor needs to be evaluated.   A criminal history of crimes involving lying or dishonesty that may be admitted into evidence will impact credibility.  An eye witness who is strong for your side of the case but could not possibly have seen what they say they saw will be attacked.  A witness’ close relationship to the company president or a financial stake in the outcome of the litigation may not be well received by the jury.

Appearance of key witnesses is important. I am not prone to recommend that a factory worker dress in a suit for trial or deposition. The formality of the situation causes enough stress without an unfamiliar suit and tie adding to the distress. But, slacks and a sport shirt are more appropriate than a dirty shop uniform or a racy T-shirt.  Facial hair should be well trimmed. Body art should be covered as much as possible.

Finally demeanor needs to addressed.  If the witness has any speech impediments, nervous habits, or objectionable body language, those factors impact the witness’ demeanor and appearance before the triers of fact.  If the star player gets mad easily or changes his story when pressed,  the opposition will use those factors to their advantage.

At trial, honest straight forward witnesses who appear like normal everyday folks are best received by juries and those attributes cannot be faked.

As for the medical fake test, it has fallen out of favor after being rejected as invalid by several courts of law. Don’t fall into the trap of having your witnesses similarly deemed invalid by a jury.

“I’ll just take them to court,” is a common refrain in today’s society. In Texas,  the court of easiest access is Small Claims Court or Justice Court. Often,  these Court’s are housed in a civic or justice center far removed from the downtown courthouses making the filing and prosecution of a lawsuit simple for those willing to pay the filing fee and service fees to provide the defendant notice of the suit.  However, before running down to the local courthouse with papers and fees in hand, there are three things you should know about Small Claims/Justice Court.

The Judge may not be a lawyer

In Small Claims/Justice Courts, cases are heard by Justices of the Peace (giving rise to the moniker JP Court).  The judges are not usually lawyers. The mandate of these courts is fairness and the court’s decisions are guided by this principle.  Rules of evidence, rules of civil procedure, and the discovery available in higher level courts, is not applicable in JP Court.  Once a case is filed, it is generally set for trial and each side presents their version of the facts and events. As a court of equity,  the judge usually decides the outcome of the case based on a perception of what would be  a fair resolution which may or may not be based on the law,  the facts, or rules of court applicable in other venues.

Your “day” in court may last only a few minutes

The big day has arrived.  The court has given notice that your case is set for trial.  You get to court with witnesses, papers, and other evidence only to learn that the courtroom is full and your case is the 53 case on the list of things for the judge to hear that day.  Rather than a day or half day to hear your case, testimony from witnesses, and analyze documents, the court has allotted your matter 15 minutes or less.

Justice Courts are the courts with jurisdiction over cases involving forcible entry and detainer.  The courtroom may be crammed with apartment managers and landlords seeking to have  non paying tenants booted from their properties.

Justice Courts have jurisdiction over cases involving Photographic Traffic Signal Enforcement Systems.  Seats in court may be occupied by people contesting that they are the one in the picture photographed running a red light.

Justice Courts can hear any matter with a dollar amount in dispute up to $10,000. Besides your case,  there may be any number of cases set by the court at the same time, on the same day where people want their dispute resolved.  These cases are usually heard after the landlord/tenant disputes and the traffic light contests.

A few word on jury trials. Most JP court cases are heard by  the judge only. A jury request can bog down the flow of cases significantly and may delay your matter being heard.  A jury panel has to be requested-often from a central jury pool located in the downtown courthouse. Once those people are assigned to the JP Court, they have to get to court either in county transportation (vans, buses) or private car. Jury selection, or weeding out the 6 people that will actually hear the case takes additional time. Think how excited this group will be to listen ot your case after the day they have had leading up to your presentation.

Do overs are free

If one side or the other does not like the outcome in small claims court, they are entitled to seek a “do over” or new trial. This new trial occurs in County Court following an appeal of the JP Court’s ruling.  While the evidence and facts may remain the same, this new trial is a new ball game. Every issue is re-heard in the new court. But this time, the rules of evidence and procedure apply often making it difficult for litigants to succeed without the help of a lawyer.

Lawsuits should only be filed after considering the pros and cons of each available court, jurisdiction, and case complexity.  Often settlement or consultation with an attorney can stave off heartache and disapointment wiht the system.

Insurance policies are contracts requiring both sides to do something when claims are made.  Policyholders are obligated to do more than pay their monthly premium if they expect their carrier to pay claims made against the policy.  Here are three suggestions for getting claims paid under any type of insurance-auto, commercial, homeowners, or any of the other numerous insurance policies on the market.

1. Read the Policy

Insurance policies set forth what the carrier will and will not pay for after a loss. Often, the policy gives benefits in one paragraph and takes them away in another.  It is imperative to understand the terms of your insurance contracts. The policy should be read when it is delivered to you. You must make sure that your policy provides the coverages you need.  I have seen many people discover after a calamity that they are not covered under their policy of insurance even when the peril is exactly the type of danger expected in their business.

Talk with your agent about your business and the types of dangers which require insurance coverage and make sure you get what you need and what you pay for.

2. Document your claim

In order to pay a claim,  carriers require documentation.  Photographs, damage estimates, witness statements and similar evidence can be used to sufficiently tell the story of why a particular claim or loss should be covered by insurance.  Conversely,   a lack of documentation often leads to delays in the claim handling process or a refusal by the carrier to make payment.

3. Familiarize yourself with the rules insurance carriers must follow

Insurance carriers are licensed by the state and must adhere to statutory rules and regulations.   Knowledge of these rules and a carrier’s obligations under the rules, puts a claimant or insured at an advantage in resolving claims. You would not play a game with a 12 year old child without knowing the rules you are expected to operate under.  Handling an insurance claim without a basic understanding of the rules simply makes bad business sense.

Most insurance carriers I deal with want to treat their customers and those making claims under the policies fairly.  The carriers have their own internal requirements for handling claims-an understanding of the policy terms, documentation, and playing by the rules is always a requirement and makes the process less stressful and confrontational for all parties.

Spoliation is the legal term for lost, hidden, or destroyed evidence.  The consequences for destroying or misplacing critical evidence such as documents or a piece of physical evidence vary from jurisdiction to jurisdiction. In Texas,  at a minimum, opposing litigants would be entitled to an instruction from the judge to the jury that the lost or missing evidence would be favorable to their case and detrimental to yours. The instruction might look like this:

Jury, you are hereby instructed that the documents which Company ABC were unable to produce related to the accident of January 1, 1999 would have been favorable to injured party Steve Smith if they had been located and would have shown Company ABC’s negligence in the maintenance of their facility.

Companies can take three steps to avoid spoliation issues which may critically hamper  successful litigation at the courthouse.

Document Retention Policies

If your company does not have a written document retention policy, it may not be necessary to create one simply in anticipation of litigation.  Without a  policy, companies can rely on consistency in the handling of retaining and destruction of documents.  If each document is handled the same in every circumstance,  the argument that a particular document was inappropriately destroyed because of threatened, expected, or on-going litigation is negated.

If your company has a written policy on these issues, then the policy must be followed to avoid scrutiny from the court and opposing litigants.

Certainly, a firm’s document retention and destruction policy (whether written or not) needs to account for the unexpected.  If an event is likely to lead to litigation then the policy needs to be modified so documents surrounding the event can be preserved for use later in the litigation both favorably and unfavorably.  Otherwise,  the opposition may be entitled to a sanction or penalty imposed by the court.  Good lawyers can make a corporate representative look foolish in describing how critical documents were destroyed in accordance with the corporate policy even in the face of a calamity. It is almost always better to have the documents than defend their absence.

Preserve the evidence in times of disaster

If it is likely that a claim or lawsuit will arise from  a given set of facts-accident, business deal gone bad, catastrophe, then each company needs to have a mechanism in place for preserving all the evidence of the event. Claims and lawsuits may not arise for years depending on the applicable statute of limitations. Pieces of equipment, documents, photographs, e-mails, security reports and other relevant matters should be saved to both prosecute claims and advance defenses.  Every critical employee needs to be made aware of this mandate to preserve evidence incluidng thbose involved, managers, the IT department and anyone else who may be necessary to protect your position.

Even if applicable laws allow for destruction of a particular set of records at a certain time,  those records should be saved if their absence later creates a void to be exposed by someone else.  Many times, the defense of trucking companies in catastrophic personal injury or death cases goes south based on missing driver log books.  Trucking companies are only required by law to keep the logs for a short time and many destroy the logs routinely when the date passes regardless of circumstances.  A defensible case can go down hill quickly if a driver’s hours of service and pre-trip maintenance inspection cannot be confirmed with written verification-the log books. 

If it must go, then let them see it

If a document or piece of physical evidence must be destroyed,  provide ample notice to potential litigants that destruction is going to occur and give them time for their own inspection and documentation (photographs, video).  Written notice provided to injured parties,  potential litigants or their lawyers setting forth that a particular item is going to be destroyed by a certain date and offering the opposition an opportunity to inspect and preserve the evidence as necessary, should preclude future complaints to the Court and any adverse sanction or ruling.