You can find websites with online accident claim calculators and formulas to calculate the potential value of your accident claim. Some websites just give you the standard formula typically used by insurance companies while more advanced websites actually give you a calculator where you can put in your injury, medical bills and other losses and it will calculate a range of settlement values. How accurate are these websites? For an accident claim in Texas, they are not particularly accurate. If you have been in a wreck then you should talk to a lawyer about your claim. An online calculator can only provide generic information. Texas personal injury attorney and formulas used by online claim calculatorsThese websites use a fairly standard formula, which is the same one generally used by insurance companies to value claims. The formula is: Pain multiplier x medical bills + lost income The pain multiplier ranges from 1-10 based upon the severity of the injury. An injury consisting of limited pain or short term limited movement may only be 1.5-3 pain multipliers, while a more serious injury, such as a broken bone may be 3-5 and so on. While the formula seems very simple, insurance companies modify the formula greatly to determine a final number. They may reject some of the medical bills or apply an inappropriately low pain multiplier. Insurance companies often lowball initial settlement offers, especially where the injured individual lacks legal representation. Often people trying to make their own calculations will apply too high of a pain multiplier and believe they should receive an insurance settlement far above what the insurer would ever be willing to pay. It’s a natural response to believe your pain deserves more money but the insurance company is unlikely to agree. If the insurer will not make an agreeable offer, you will have to decide to accept a lower settlement or filing suit (or hiring a lawyer to file suit). Negotiating with insurance companies in TexasInsurance companies in Texas are not afraid to go to court, even on smaller claims. They believe injured people would rather accept less money than hire a lawyer to negotiate and litigate claims. That also often drives down the settlement offers the insurance company will offer you. If they know you do not have representation the claims adjusters know they can lowball you and play fast and loose with the facts to get you to agree to a far lower number. The result of these manipulations by insurance companies is an objective, straight-forward calculation ends up being of little value. The best way to understand the value of your claim and negotiate a reasonable settlement is to obtain a lawyer. Personal injury attorneys understand how to assess the facts and law that applies to car wrecks and other legal situations in Texas. Pursuing claims without the help of an attorney can often result in less favorable outcomes.
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A holographic will is a handwritten will. Although it sounds like it should be one of those foil pictures that with three dimensional pictures; it is less exciting. Each state has its own rules for what makes a holographic will valid. Not all states even accept them. Holographic wills--do you need an estate planning attorney?While Texas accepts holographic wills as valid wills, they must satisfy specific requirements. First, the testator – the person making the will – must have the intellectual competence to make and sign a will. Legal competence to execute a willThis means if the testator was mentally ill, intoxicated to the point of lacking competence, or adjudicated mentally incompetent, or any other legally recognized state lacking competence, the will becomes unenforceable. Second, the testator cannot revoke the will. If the testator replaces the will by a formal will or merely revokes it, then it becomes unenforceable. Legal intent to create a willThird, the testator must have intended for the document to be a will. This means the testator had to know that the document will become a will; and intends for the will to divide his or her estate to the beneficiaries named in the will. It probably seems obvious that when a person writes a will they intend for it to be a will but sometimes that is not the case. For example: a document written and signed as a joke; a document written and/or signed by fraud; it might be the product of anger to annoy or anger other people; or the person writing it may not have understood what the document did (even though legally the person was competent to sign legal documents). Authenticating a Texas willFourth, the handwritten will must satisfy one of two combinations of written authenticity. If the testator handwrites the will then the testator must only sign and date the document to make it valid. If the testator did not handwrite all of it (somebody else wrote it or typed it), then the testator must sign it in the presence of two witnesses. Those witnesses must sign the will in the presence of each other and the testator. Holographic wills in TexasAs you can imagine, there are many obvious problems in proving a holographic will is valid. If the testator handwrote the will, it may require handwriting experts to prove the validity of the handwriting. If signed in the presence of witnesses then supporters of the will must prove the witnesses and the testator all signed together and that the witnesses are honest. The competency of the testator and the intent of the testator may be difficult to prove. (If the testator was in extreme pain, thought she was about to die and wrote a will in the hospital, was she competent?) But if the will was revoked, can proof of the revocation be proven Texas probate law and holographic willsIf you can prove that the holographic will is valid on face, then you have to look at the language to see if the intended language is valid and if the language divides the estate in the way the testator wanted it. It is very possible that the language will violate Texas probate law. The result is an unenforceable will. The court will act as though there is no will. (At least to the extent the language is invalid). Even where the language is valid the courts may construe it differently than what the testator intended. To summarize this point, a will that states, “all to my wife” is probably going to receive the effect of those words. It is very clear and there is little to interpret. However, what if testator never revoked the holographic will but the testator divorces his wife shortly before dying? Or remarries? Does the will still leave everything to the ex-wife? The new wife? Unclear and ambiguous language can make it very difficult for the court to give proper effect. This often results in family members fighting over the meaning of the will. Hiring an estate planning attorney for your Texas willIt is not impossible to write a valid, clear holographic will; but the likelihood is that a holographic will may result in a difficult and more expensive probate process than taking the time and money to have a formal will drafted by an estate planning attorney.
North Texas Beer Week is almost upon us and that means lots of great beers and beer events around the DFW area. That also means an increased probability that intoxicated drivers will be cruising through your neighborhood, especially late at night. While encouraged to drink responsibly, we all know that some people drink less responsibly than others. Especially in major drinking venues like 7th Street in Fort Worth and uptown in Dallas. That means people should take extra precaution that week when driving anywhere in the evenings and on the weekends. Drunk drivers not only cause harm to themselves but also to those around them. It's not just in Dallas or Fort Worth. Arlington, Denton and Addison both have significant nightlife areas with bars. People suffer injuries and even death in areas outside of Dallas and Fort Worth due to drunk drivers. Many people drive from suburbs like Plano, Grapevine, Southlake and Hurst into the larger cities on the weekends. Hiring a lawyer for a Texas case If you are injured by a drunk driver, you have remedies under Texas law like any other car accident for your bodily injuries, property damage, lost wages, pain and suffering and other related losses. If you suffered injuries in an alcohol-related accident, talk to a Texas personal injury lawyer right away. Injury liability in Dallas and Fort Worth, Texas Car wrecks from drunk drivers can be especially harmful because the drunk drivers tend not to brake or try to avoid hitting the other vehicle as most other drivers would. This tends to result in greater property damage and bodily injury. If hit by a drunk driver you may not have the opportunity to obtain the driver's information or the driver's insurance information. You can obtain that information later from the police report. Your first concern should always be to seek medical attention as soon as possible. If you experience pain the next day or days afterwards, you must seek medical attention right away. Then follow the course of treatment provided by the physician. Dram shop liability under Texas law In most cases your bodily injuries and property damage will resolve through a settlement with the driver's insurer. However, you may find yourself in a situation where the driver does not have coverage or does not have enough coverage to pay for all of your property damage or bodily injury. If this is the case, there are several options to find a remedy for your losses. If the driver has assets, the driver can be sued personally for the injuries and the driver will be responsible for whatever is not paid by the insurance policy. Auto insurance for DUI accidents However, it is rare that a driver has no insurance or low policy limits but enough assets for a judgment. The more common place to find a remedy is the person or business that served the driver. Under Texas law, a business or individual serving another person alcohol can be liable for the intoxicated driver. That business or person can also face a lawsuit. Additionally, you may bring a claim under your own uninsured/underinsured motorist coverage. If hit by a drunk driver you need to hire a lawyer ASAP. The other driver's insurer will not give you a fair deal. A non-compete agreement in Texas is enforceable if it meets all five requirements under Texas law: it is part of an otherwise enforceable agreement; there is valid consideration; reasonable in time; reasonable in geographic scope; and reasonable in activities restrained. If the non-compete agreement satisfies all four elements, then the answer to the question: "Is my Texas non-compete agreement enforceable?" is yes. Today's post will discuss what is a non-compete agreement, what do these five requirements mean and what should you do if your Texas employer asks you to sign one. If your employer asks you to sign a non-compete agreement, talk to a Dallas employment lawyer. What is a non-compete agreement under Texas law?At its core, a non-compete agreement is a contract between two parties not to compete with each other in the same market to sell the same goods or services. Most commonly we use the term non-compete agreement to refer to a contract between an employer and an employee or independent contractor. Although employers use non-compete agreements for some not great reasons, the legal purpose is to protect the employer's trade secrets. Employers want to protect their "secret sauce" and deter former workers from taking client lists, proprietary business processes and products and competing in the same market selling the same goods and services. To accomplish those goals employers enter into non-compete agreements. An enforceable non-compete agreement restricts the employee or contractor's post-employment activities. Some examples of restrictions you may find in a non-compete agreement:
Elements of a valid non-compete agreement in TexasIn Texas a valid non-compete agreement must meet five elements in addition to operating as a valid contract under Texas contract law. Non-compete agreements are often attacked on these five elements but there may be other issues that make the contract invalid. Today we will focus on the four elements of enforceability. These elements are:
Let's discuss each in turn. Part of an otherwise enforceable agreementAn employer cannot enforce a non-compete agreement unless it is part of a larger enforceable agreement. That can be an employment agreement or even a non-disclosure agreement. Practically, a non-compete agreement will generally be part of a non-disclosure and/or non-solicitation agreement. It would not make sense to let an employee or contractor share information without compensation but not allow it if it generates value for the employee or contractor. One way to attack the enforcement of a non-compete agreement is to attack the validity of the associated agreement. If, for example, the non-compete agreement is part of an employment agreement and the employment agreement is not valid, then the non-compete agreement would not be valid either. Valid consideration for a covenant not to competeOur first element requires the employer to give valid consideration for the contract. Consideration is what you get in exchange for an agreement. For example, you agree to buy a car for $25,000 from a dealership. The dealership gets $25,000 in consideration and you get a car in consideration. Note here we discuss "valid" consideration. Not everything is valid consideration for a non-compete agreement. What constitutes valid consideration under Texas law has changed over the past twenty years. In 2011 the Texas Supreme Court issued its decision in Marsh USA, Inc. v. Cook which redefined this element. Before Marsh USA the Texas Supreme Court required the two sides to exchange promises as consideration in which the employer's promise gave rise to the employer's interest in preventing competition. Marsh USA broadened the requirement. It held that there must be "a nexus between the otherwise valid transaction and the interest worthy of protection." Ok what does this mean? Under Marsh USA and cases following there are generally only two types of consideration valid for a non-compete agreement. One, the employer promises to give the employee access to whatever it seeks to protect. That might be specialized training, client lists, proprietary product or service knowledge, proprietary business processes and so forth. Two, the employer gives stock options or other atypical compensation to encourage the employee to promote the business's goodwill. Note that in the first type of consideration the value gained by the employee or contractor is not monetary. What is the person then getting of value? The confidential information is the value because the person could take that information and sell it to a competitor or open a competing business. How would that person otherwise do their job without the confidential information? They probably couldn't so the agreement is really something of an illusion for the employee. Often the non-compete agreement is part of employment contract at hiring or a condition of receiving a promotion in which the employee will need the confidential information. The confidential or proprietary information forming consideration has to be something specific to the business that has real value to the business operations. An employer cannot promise to exchange training on typical business processes or access to general consumers in the market. Often enforceable noncompete agreements involve high level executives, specialized professionals and salespeople for this reason. Additionally, employers cannot simply buy noncompete agreements from employees. In Texas, an employer cannot pay employees to sign noncompete agreements to suppress competition in the market. It is not valid consideration for a non-compete agreement to receive:
ReasonablenessBefore discussing the specifics of what must be reasonable let's talk about these elements together in a broader sense. The restrictions on the employee or contractor can only go as far as necessary to protect the confidential or proprietary business interest. An employer must take caution not to exceed these boundaries or the contract may not be enforceable. Whether the restrictions are reasonable is fact specific to the situation and parties involved. The agreement must be reasonable in time, georgraphic scope and activities. Overextending limitations on just one of these elements may be enough to make the entire agreement unenforceable. Ensuring reasonableness limits a non-compete agreement's ability to go beyond the intended goal to protect a business interest in confidential or proprietary information. Without these limitations an employer could use a non-compete agreement to deter employees from leaving or to prevent other businesses from gaining access to experienced employees. This would allow the employer to go beyond protecting the business it has to leveraging anti-competitiveness across the market. TimeA non-compete agreement in Texas is enforceable if the restrictions are reasonably limited in time. The agreement can only restrict the employee or contractor long enough to protect the business's interests in the consideration given. An employer cannot make a non-compete agreement restrictive forever or generally for an extensive period of time. Generally Texas courts uphold non-compete agreements up to five years but remember, this is fact specific to the circumstances.
For example, an architectural firm might ask its architects to sign a non-compete agreement that restricts them from working for another architectural firm in the same area for a period of six months to allow the firm to complete projects and avoid clients following the architect to another firm. That might be a reasonable restriction in time. If the firm restricted the architect from working in the same area for ten years, then that would probably not be reasonable. There is no hard rule for how long is unreasonable. It depends on the facts and circumstances of the agreement. Geographic scopeTexas non-compete agreements must also have a limited geographic scope. The covenant can only cover an area reasonably related to the business interest protected by the agreement. An employer cannot restrict the employee worldwide, nationwide, or even across Texas as a matter of course. The larger the area the harder it will be to defend the reasonableness of the restriction. For example, a dental practice may require dentists to sign non-compete agreements so they don't take patients to a new practice when they leave. The practice is in Houston and has patients across the greater Houston area. It would likely be reasonable to restrict the dentist from the greater Houston area for a period of time. If the dental practice thinks it might want to branch out into other Texas cities, then it would be unreasonable to include a larger part of the state in the non-compete agreement if the practice does not do business in those areas. Activities restrictedSimilarly, a non-compete agreement in Texas can only restrict activities reasonably related to the protected business interests. Generally a non-compete agreement can only restrict the employee or contractor from engaging in the same or very similar work as done for the employer. For example, a non-compete agreement for a salesperson could generally only limit sales of the same or very similar products or services as the employer. A non-compete agreement generally could not stop the salesperson from selling a different product or service. What will happen if I violate a non-compete agreement in Texas?If the non-compete agreement is enforceable under Texas law, then the employer can sue you and any business involved to protect its interests. The lawsuit may seek an injunction prohibiting you from conducting work restricted by the agreement. Or the employer may seek monetary damages for financial harm. Or both. Employers do not always attempt to enforce their non-compete agreements. The employer may also threaten prospective employers with litigation or cease and desist letters which may make finding and keeping new employment considerably more difficult for you. The best thing to do is talk to an experienced employment attorney about the non-compete agreement before leaving your current employer. That will give your attorney the opportunity to review the agreement, consider potential defenses and craft an exit strategy with you. After you leave the job and find work elsewhere it may take some options off the table. Hiring an employment attorney to review your non-compete agreementThere is a lot of information online from non-legal sources encouraging Texans to believe non-compete agreements are not enforceable in Texas. Most of this information is wrong or at least partially misinformed. Texas courts since Marsh USA often uphold non-compete agreements when they are well thought out and limited. Many employers use form language with too broad of restrictions and these often fail in court. The only way to know for sure what you are dealing with and what moves you can make is to speak with an experienced employment attorney. Diminished value claims, which allow recovery on the lost market value of a car that has an accident in its history, do not follow a precise formula. Texas allows recovery under a diminished value claim; but whether you can recover and how much of the value you can recover depends on many factors. Among those factors are the value of your vehicle before the accident and how effectively your diminished value attorney can negotiate. Before you begin negotiating any diminished value claim you should understand how to calculate your specific claim. Today's post will deal with some key issues that will lower the value of a potential diminished value claim.
Seven things that will hurt the value of your diminished value claim in Texas 1. The age of your vehicle Technically, every car has a market value, even older cars in poor condition can sell for something. In practice, the insurance companies do not see it that way for diminished value claims. Most insurers put up a fight on a diminished value claim if the car is more than seven years old. From their financial calculation the diminished value on an older vehicle is not likely to be worth enough to take the claim to trial. The financial benefit to the insurance company to settle those claims is less than a newer car. There is a certain logic to this position. Older cars are usually worth less than newer cars. If your car is only worth $3,000 the diminished value from a car wreck is likely very little. That may not get you very far in the legal system. Filing a case in the county or district courts with service is almost $500. That means you are likely going into the Justice of the Peace court which is cheaper. What insurance companies do wrong is to take their arbitrary age cap and draw a line in the sand. Older cars are not necessarily in poor condition or without market value. This is particularly true with older luxury and high end vehicles, older cars with low mileage, older commercial vehicles and older cars in great shape. 2. The mileage on your vehicle Just like when you buy or sell a car, the mileage has a big impact on the market value. Most people consider cars with low mileage better value than a car with greater mileage. More mileage means more wear which means more repairs in the near future. Again, this is a reason why one diminished value claim might be worth more or less than another. Although in their usual fashion, the insurance companies draw a line in the sand based on mileage. Many insurance companies insist they will not pay a diminished value claim on a vehicle with more than 100,000 miles. You can recover diminished value on a car with more than 100,000 miles; but you may have to get yourself in that JP court to make your claim worthwhile. The mileage issue is more difficult to overcome because even the average consumer sees 100,000 as a major threshold. However, it is not a hard line like the insurance companies will have you believe. A car with 100,000 miles and an excellent service record can command more value than a car over 100,000 with little servicing. Some cars also stand the test of mileage, particularly certain import brands. Those issues can be key negotiation points. 3. The make and model of your car We're getting more obvious here. A BMW is worth more than a Kia. It's going to command a higher price on the market despite Kia's improved image and quality. A car that started out more expensive and holds value longer in the used car market is going to have a greater diminished value, all other things being equal, than a car that started at a lower price point and sells for less on the used car market. 4. Where you live Where you live also plays a role in the value of your car on the used car market. Cars in urban areas tend to command a higher market value over cars in rural areas because the overall cost of everything is more in urban areas and the used car market usually has greater demand. A car in Fort Worth usually will have a higher resale price than the same car sold in San Angelo. Even among neighborhoods the market value of a car can change. That same car for sale in Hurst may have a slightly lower market value than what it may go for in Plano or Southlake. The the location of the vehicle also matters. Any good diminished value appraisal should include obtaining the sale price of similar vehicles around the same area where your car resides as part of the process of determining the diminished value on your car. It is a useful way to prove how the local market raises (or lowers) the value of your vehicle against the national standards set in broader pricing schedules, such as N.A.D.A. or Edmunds. 5. Prior accident history A car with two accidents in its history is usually going to be worth less than a car with one accident. That makes sense, right? It would seem so, although there is not a clear consensus on how people value the difference between one accident and multiple accidents. Certainly a good argument can be made that a car that has had severe body and mechanical damage from two accidents might be worth less than a car that had one serious wreck and repair and one minor repair, such as a replaced bumper. Again we will get back into the insurance company drawing a line in the sand. I have heard more than one claims adjuster say they will not pay out on diminished value claims on any accident after the first that appears in the car's accident history. It's not necessarily the case that there is no additional diminished value on the second accident but the insurance company is taking a stand based on the financial analysis. Litigating claims is going to be more expensive to litigate a diminished value claim where the loss from the first accident has to be calculated and removed from the diminished value caused by the second accident--and get a jury to understand that analysis--and chances are the lost value from the second accident is going to be small enough that it isn't worth paying a lawyer plus experts to get to verdict. With that in mind the insurance companies know they can usually scare you off of a claim on that later accident. If you drive a vehicle with a salvage title it will be nearly impossible to convince an insurer to pay on diminished value. Salvage vehicles are already so low in value on the market that whatever diminished value claim you have may be difficult to prove (since the car already has an accident history) and likely will not worth the cost of litigation. That is true even if you are driving a very nice vehicle with a salvage title. However, that doesn't mean it can't be done or that it shouldn't be attempted. 6. Not understanding the value of your claim Not understanding the full value of your diminished value claim creates a self-fulfilling loss of value. If you undervalue your claim to the insurance company than they are already starting off from a superior negotiating position because you have started the process by giving yourself a discount on the value of your claim. If your claim could be worth $5,000 but you tell the insurance company you will settle for $3,000 then you have given up 40% of the potential value of your claim just by how you presented your claim. That's a $2,000 mistake. A common way people undervalue their claims is by using these online diminished value calculators, which typically undervalue claims. A diminished value claim takes into account more than just the age, mileage and model of your car, but those are usually the major factors used in the online calculators. A qualified vehicle appraiser is far better at giving you an accurate, although sometimes overvalued, appraisal of your diminished value claim. 7. Letting the claims adjuster drive the negotiation process Claims adjusters negotiate insurance claims as a profession. It's what they do forty hours a week. They are usually very good at their job. Their job is not to negotiate a fair deal. The claims adjuster's job is to settle your claim for as little as possible. That usually includes using techniques to frustrate you, confuse you and misrepresent the value of your claim. They learn how to use these techniques and become skilled in their use. Trying to settle these claims on your own puts you at a severe disadvantage. Most people are not professional negotiators and even if you are a skilled negotiator, unless you also happen to be a personal injury attorney you probably do not have a good sense of how litigation costs and processes affect the negotiation. Claims adjusters are particularly loathe to pay on diminished value claims. Letting them control the negotiation process is a surefire way to come out with very little success. An attorney who deals with diminished value claims is your best weapon. I do not recommend people allow diminished value appraisers to help them negotiate claims with the insurance company. Many appraisers are offers to "help" negotiate claims with the insurance company. There are some ethical issues with appraisers representing claimants. It is arguably unauthorized practice of law. More importantly, while the appraisers have expertise in appraising vehicles, they do not have particular expertise in litigation. |
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