trucks-on-the-road-1449684In our last blog entry, we touched on commercial vehicle accidents. It is obvious that the roads in greater San Antonio and Texas are becoming clogged with 18 wheelers and commercial vehicles. These vehicles are large rumbling instruments of injury especially if the driver does not follow federal regulations.

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The first step in successfully prosecuting commercial vehicle accidents is to establish an employment relationship as opposed to an independent contractor relationship. Even if the trucker is an independent contractor, liability can still be bestowed on the company that owns the truck. In strictly looking at an employer-employee relationship, we can bestow liability on the employer if it can be shown that employee was acting within the scope of their employment. More often than not, this is not that heavy a burden to overcome.

Filling up an employer’s vehicle with gas or water is considered within the course of employment. We often see employees mix their personal business with their employment duties and in that case, such behavior is still within the realm of employment and the employer can be held liable for the employee’s negligence. Occasionally, Baseluos Law Firm will run into situations where the employee takes a ‘detour’ from official business. If the employee was acting for his own personal affairs, then he may be outside the scope of employment. However, if the employee is still somewhat acting on behalf of his employer or starts back on his normal course, then an argument can be made against the employer. Some courts look at the degree of deviation from normal course of employment, and sometimes an argument can be made that such deviations are minor and foreseeable and should not absolve the employer from negligence.

school-bus-with-child-1431211In our prior post on driver liability in San Antonio auto accidents, we discussed the theory of negligence and how it applied in some of the common auto accidents we see in San Antonio and Texas. Today, we would like to discuss how violations of traffic laws tie into proving negligence on the part of another driver and pedestrian injuries at the hands of negligent drivers.

There are times when a driver’s violation of traffic laws rises to liability. These are quite frankly the best cases especially if the driver is cited by local or county police on the scene. If the driver pleads guilty and pays a fine, such evidence can be used to demonstrate negligence. Baseluos Law Firm will often contact the local district attorney and county clerk to determine the status of a ticket. If necessary, certified records of the driver’s plea in criminal traffic court can be used at a civil trial to prove negligence.

In many jurisdictions in Texas, the ‘rules of the road’ represent commonly accepted standards of driving, which when violated, can provide the basis for establishing liability in court. The other driver, passenger, or pedestrian who is injured is most often a member of the group of people the traffic laws are designed to protect. To prove liability, it must be shown at trial that the violation of the traffic regulation caused the injury. Juries will receive what is known as a ‘statutory charge’ outlining the presumption of the violation of the law and automatic liability.

In handling motor vehicle accidents, the key question is whether there is a clear case of negligence. The term negligence refers to some conduct that falls below established standards of laws designed to protect people from the unreasonable risk of harm. To succeed in an auto liability case, a good lawyer must prove the other driver violated a legal duty to use care in the operation of his vehicle and that such a violation was the primary cause of injury to another person.

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When investigating a negligence in an auto accident, it is imperative to show that the person failed to exercise ordinary care. The degree of care we expect from the operation of a motor vehicle accident can vary. In Texas, particularly in San Antonio, the degree of care we expect varies with the condition of the road, weather conditions such as rain, and the presence of children.

Negligence in the operation of a car can also be measured by a driver’s violation of traffic laws. A ticket given at a scene by the San Antonio police is a tell tale sign that there is negligence, and makes for a strong case. Sometimes drivers can be considered negligent even if they operate within the law. For example, during a torrential rain on a slick road, San Antonio drivers may still be held negligent even if they drive within the speed limit. The question is whether the driver drove at a speed that was reasonable and proper under the existing traffic conditions. A driver can be driving within the speed limit and still be held liable for driving too fast under the conditions.

Imagine you are walking down a public street and a police officer approaches you and expresses a desire to ‘ask a few questions.’ This is a scenario that plays itself out throughout the country. Police officers stop people on the street and conduct face to face questioning. They question people during car stops for traffic offenses. They may conduct questioning while making visits to a home or office. Sometimes, they may ask individuals to come down to the station or they may contact people over the phone. The first pressing question is whether a policeman can stop you on the street and question you even if there is no reason to suspect any wrongdoing.

The answer is ‘Yes’. Even without a reasonable suspicion, law enforcement can approach people for questioning and even ask to search objects in your possession. However, a line is drawn if the officer suggests you MUST talk to them or allow them to search your person or possessions. This is impermissible under the Supreme Court’s ruling in US v. Dayton. The rule of thumb is that a person is not generally required to answer inquiries from law enforcement or submit to a search.

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There are exceptions where law enforcement will ask for identification. Most states have “stop and identify” which allows law enforcement to detain individuals and request identification provided there is a reasonable suspicion of criminal acitivity. Under Texas penal code, Section 38.02 , a person commits an offense if he refuses to give identifying information to a police officer who has lawfully arrested him. The general rule of thumb if you are unsure is to provide only your name, date of birth, and residence when asked. However, beyond this information, you have a Fifth Amendment right to remain silent. You cannot be punished for refusing to answer questions beyond identifying questions. Recent Supreme Court decisions have stated that you must verbally assert your right to remain silent with a simple “I invoke my right to remain silent.”

In our last two blog entries, we have discussed measures of valuating damages in Texas auto accident cases including market value and replacement value . Again, these types of discussions are not limited to car wrecks – these forms of damages are applicable in any claim for damages to personal property.

The third category of valuation damages is the actual or intrinsic value to the owner, which is a type of damages that is only applicable where market or replacement value cannot be calculated. For example, property that provided for the comfort and well-being of the owner does not have market value, but may have intrinsic value. Common examples of items with actual or intrinsic value are clothing, furniture, and photo albums.

As you can probably conclude, actual or intrinsic value is generally not used to measure damages in auto accident cases, unless there are some very unique circumstances. Intrinsic value is the value of the property to the owner, excluding sentimental value (another category of damages we will cover later on). The actual value of an item is not restricted to the item’s market value at the time of loss. Basically, it’s incredibly difficult to put a market or replacement valuation on household goods, clothing, and personal effects. For example, in one case a Texas court ruled that damages to the contents of a mobile home do not need to be based on market value.

To prove actual / intrinsic value, the injured party will testify about the value of the damaged property as the owner. Generally, various forms of evidence can be introduced to clarify the property’s value including its condition before the damaging event, the original cost, age, level of use , cost of replacement, and possibly experts.

A San Antonio negligence attorney will actually state in the petition for damages that market and replacement value measures of value will not adequately compensate an injured plaintiff. Generally, courts do not require an injured party to prove household goods, clothing, and personal effects have no market value.

What is interesting is the ever rising use of online auction sites like Ebay . The idea that somehow household goods, clothing, and personal effects may not have market value or a replacement value may be going the way of the dinosaur. An experienced Texas injury lawyer will confer with his clients about the prices certain household goods may be fetching on these online auction sites.

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The final category of valuation damages is sentimental value, the fallback where market value, replacement value , and actual value do not apply. Keep in mind that sentimental value takes into account the owner’s special feelings about the items. Examples of damaged property for which Texas courts have allowed the recovery of sentimental value include family heirlooms, items belonging to grandparents or earlier generations, pictures, birth records, trophies, and wedding pictures. Baseluos Law Firm will confer about the client’s sentimental feelings and put the opposing party on notice that the plaintiff will be seeking sentimental damages.

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In our last blog entry , we discussed recovery of market value in auto accident cases . Today, we will discuss methods of proving market value and other methods of proving valuation of your damaged vehicle. These types of methods are not just applicable to auto accidents – they can be applied to any type of property damage from negligence.

To prove market value (defined as the difference in the value of the item immediately before and immediately after the collision), an injured party can offer either his/her own personal testimony or that of an expert provided the testimony deals with market value as opposed to sentimental value. The witness must be familiar with the market value of the property and the value must be measured at the time of the auto accident, not the value at time of trial.

A market value witness can introduce common appraisal guides like Kelley Blue Book which publishes automobile vehicle valuations as well as before and after photographs of the damaged vehicle.

Another critical component to proving market value is to introduce the repair bills to prove the difference in market value before and after the collision. The argument here is that the vehicle repair would ultimately make the vehicle like new or restore the car back to full working mode. Therefore, the cost of repairs becomes the primary evidence of loss in market value. The collision repair estimates then represent the difference in value before and after the car accident.

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There are certain proposed measures of damages which the Texas courts have ruled are inadmissible as a means of proving market value including the purchase price of the vehicle (cars depreciate) and any amount remitted by the insurance company for losses.
If market value is not a viable option, the next category of valuation damages is replacement value, meaning the cost of replacing the car or reproducing the damaged goods. The cost of replacement is reduced by any enhancements or upgrades to the vehicle which were not present before the accident. In addition, the damages must be reduced by the depreciation of the original vehicle and the salvage value. So a vehicle that is 10 years old which is totaled in a San Antonio car accident could theoretically be replaced by a newer vehicle. However, replacement value would be reduced by the decrease in value due to depreciation and any salvage value of the original property.

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In a simple San Antonio car accident where personal injuries are minimal, the issue often becomes proper valuation of property damages to the vehicles involved. There are two types of damages to personal property – valuation damages and repair damages. Most people assume that the value lost from a car wreck is strictly limited to the cost of repair or replacement value. In most cases, those methods are proper valuations, but there may be other ways to value personal property and make valid claims on auto accident damages.

In a personal injury car accident suit, determining market value of the damaged vehicle is the most common form of evaluating damages. If market value cannot be determined, other methods exist including replacement value, actual value, and sentimental value. Texas courts have generally ruled that actual or extrinsic value may be used only when market value or replacement value are unable to be determined.

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So what exactly is market value ? Texas cases define market value as the price the vehicle would fetch if it were offered for sale. In the event of a car accident, the market value is the difference in value of the vehicle immediately before and after the collision. In cases where the vehicle is completely destroyed, then the damages are measured as the value of the vehicle just before the accident minus the salvage value. This is why that more often than not, in the case of older vehicles, after an accident , the most you will receive from the insurance company is the salvage value of the vehicle where the repair costs far outweigh the market value.

The county where the auto accident occurred is the marker for determining market value. As such, an Austin car collision might be valuated differently than a San Antonio auto damage case. I have referred to some different ways for determining valuation damages. There are certain types of property that will be subject to this market valuation method i.e. the difference in the value of the item immediately before and after the damage.

For example, Texas courts have stated automobiles, machines and equipment, and even animals are subject to market valuation methods for loss valuation. Interestingly, an owner can recover for the death or injury of a beloved animal in a San Antonio auto collision. Although many owners who lose an animal in a car accident would vehemently argue for the sentimental value of their treasured animals, the recovery for an animal’s death is limited to the market value. Sometimes, in the cases of animals that have high monetary value for their special characteristics or usefulness, the owner can bypass market value and obtain a greater recovery. For example, seeing-eye dogs or dogs with unique breeding potential have been assessed actual values based on their monetary value. Unfortunately, owners cannot obtain a monetary recovery for the pain and suffering related to an animal’s injury or death.

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Divorce is a difficult period in anybody’s life. In our area, many couples wish to avoid the expense and emotional toll of fighting throughout the process and feel that they can come to a mutual understanding without the need to hire a New Braunfels divorce lawyer for an uncontested divorce. However, there are several crucial issues related to any divorce, including uncontested divorce, that a qualified attorney will identify and address to avoid running into inevitable problems in the future. Not hiring an attorney is rarely advisable. This is particularly true the longer the marriage lasts, when there are children involved, and the more assets accumulated.

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Usually for a flat fee, a qualified San Antonio uncontested divorce lawyer will explain issues related to property division, child custody and support, spousal support, preparation of the divorce petition and final decree, name changes, tax issues and other related matters. Addressing all of these questions from the outset with an attorney will save time and money in the future when these matters inevitably come up if left ambiguous or unaddressed.

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Even though spouses may think that they have worked out an acceptable division of property for both sides, a lawyer may help point out issues that parties don’t realize exist. For example, it is important to know that despite a divorce decree that assigns a marital debt to one spouse, creditors can still seek payment of the debt from both spouses since they are not bound by the decree. A divorce attorney will help identify better solutions that will not expose clients to debts and other liabilities that their ex-spouse has agreed to undertake.

In other cases, an ex-spouse may fail to disclose assets that make the agreed-to division disadvantageous for the other spouse. A good attorney will protect their client by requiring that both parties file sworn statements of their assets that can later be used to prove that fraud in obtaining the divorce settlement. For more discussion of these issues, please see our related blog posts related blog posts here.

Child Support and Custody
Child support and custody issues are complicated and dealing with the process is made easier with the advice of an attorney. Legal professionals in our area can explain child custody laws in Bexar County and the concept of conservatorship. This includes issues like which conservator has the right to determine the child’s residence, what geographic restrictions Bexar County courts place on this determination, the weight of the child’s preference, the difference between managing and possessory conservators, and a host of similar issues.

A San Antonio uncontested divorce lawyer will be especially helpful in navigating the intricacies of the Texas Family Code as it relates to child support and medical support. The attorney will help their client calculate the amount of child support according to a specific formula set out by the Code. A lawyer can also explain support modification and issues like support avoidance by stopping work and Employer’s Orders to Withhold. In addition, in uncontested divorce it remains crucial to discuss medical support for the child, including medical insurance.

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Uncontested divorces are more common than ever these days. Apart from costing less than a contested divorce, uncontested divorce may also be much less complicated if it is right for the participants and the situation. The following is a list of things to keep in mind if you are contemplating an uncontested divorce in Texas.

1. Always consider hiring an attorney. Many websites offer easy, do-it-yourself uncontested divorces. However, even uncontested divorces can be complex for those unfamiliar with Texas family law. When contemplating any type of divorce, it is important to consider hiring an experienced San Antonio uncontested divorce lawyer to do things right the first time. For a low flat fee, a divorce attorney will lead you through the process of an uncontested divorce, including the preparation of the petition, waiver of service, and final divorce decree. They can also prepare a Qualified Domestic Relations Order (QDRO) and military retirement order (DRO), should either or both be needed.

2. Is an uncontested divorce right for you? Many people find that their relationship with their soon-to-be former spouse is amicable enough for an uncontested divorce. For an uncontested divorce to work smoothly spouses must have a high level of trust in each other, be convinced that they have worked out major issues, and can easily work out any issues that may arise during the divorce process and beyond.

3. Have you worked out the major issues? Both spouses should agree to major issues in an uncontested divorce, and should be confident that they will be able to solve any major disagreements on these matters should they come up in the future. Major issues include division of community property, child custody, and child support.

4. Understand and divide your property: A divorce attorney will provide a guide on how to divide the marital estate, including assets, debts, and taxes. This may include an inventory appraisement to ensure that both parties have the same understanding of the property acquired during the marriage and the property that should be considered the separate property of each spouse. Even in situations where attorneys advise their clients to sign a waiver of discovery of their spouse’s finances, an inventory appraisement will ensure that both parties are on the same page and that the divorce decree includes all of the marital assets.

5. Discuss and understand issues concerning children: A divorce attorney will help a client understand major issues concerning children including child support, conservatorship, possession, and health insurance. If contemplating an uncontested divorce, spouses must come to an agreement on these and other child-related issues.

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6. What is the process involved in a Texas uncontested divorce? The divorce process begins when one party serves the other party with a Petition for Divorce. For an uncontested divorce, the other party will sign a waiver of service. The attorney then prepares the final divorce decree, which will be signed by both parties. After 60 days, the attorney presents the decree in court and it is approved and signed by a judge.

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In a Texas criminal case, the State of Texas represented by the District Attorney’s office, possesses the highest burden of proof under the law. A San Antonio criminal defense attorney will explain during jury selection all of the burdens of proof separately.

The first basic element is reasonable suspicion, which is the element needed for the police to stop and detain a person. The attorney will enlighten the jury by explaining how little it takes for a police officer to legally effectuate a stop. The next level of proof is “probable cause”, which is more than reasonable suspicion. Probable cause is all that is necessary for a criminal defendant to be arrested, booked, set on bond, and stand for trial.

In its most basic form, probable cause essentially means that police are required to arrest someone if that person could be guilty of committing a criminal offense. The law encourages a police officer to err on the side of safety. When the arrested person does not contest the charges, then the court resolves the case usually through a plea agreement. However, when an arrested person disagrees with the charges, then the first time he is entitled to have a group of independent citizens review the case is when a jury is chosen. In Texas, the judge does not prescreen a case, so the only people who have reviewed the case are law enforcement and the district attorney.

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