IX. Texas Standard-Auto Insurance Policy

TEXAS PERSONAL AUTO POLICIES

For decades the Texas Department of Insurance (TDI) required auto insurance companies to use standardized language and provide standardized coverage for their insurance customers. This was a tremendous benefit to Texas consumers shopping for auto insurance. With standardized language and coverage, Texas insurance consumers could do real price comparison when shopping for the best auto insurance policy, comparing apples to apples.@

In 2005 the TDI (Republican appointees) changed the rules and began allowing non-standard auto insurance policies to be sold in Texas. Several insurors have taken advantage of this to introduce personal auto policies with restrictions that may surprise Texas policyholders, and even some insurance sales agents. Now you may be comparing apples to oranges.@

One example is the new Safeco personal auto policy. It has several features more restrictive than the Texas standard form. For instance:

  1. The new Safeco personal auto policy excludes liability and physical damage coverage while an insured is employed in the delivery of newspapers or magazines, food or any products for the purpose of compensation.@ A teenager delivering pizza as contract labor would be an uninsured motorist if he/she had a wreck under this Safeco policy.
  2. The Safeco policy excludes punitive or exemplary damages. The Texas standard policy does not exclude coverage for these types of damages.
  3. The Safeco policy provides for depreciation of a loss settlement after a partial loss. If an older vehicle needs to be repainted after hail damage, Safeco will only pay a depreciated percentage of the actual cost. A Texas standard policy will pay the full cost to re-paint and is not allowed to depreciate costs to repair or replace, unless the auto is totaled.

Since 2005, a bargain rate for auto insurance may be hiding reduced coverage. Look on your policy or ask your agent to find out if your policy is a standard Texas Personal Auto Policy. If your agent does not know what you are talking about, or says that all Texas auto policies are the same, maybe you should find another agent.

DO I HAVE ENOUGH CAR INSURANCE?

An opinion by the Texas Supreme Court on June 29, 2007 dramatically changed the playing field for persons injured by someone else. Every HMO (ex: Scott and White Health Plan) or Health Plan (ex: Blue Cross/Blue Shield) has a subrogation clause and a reimbursement clause in their contract. When you accept the HMO/HealthPlan coverage, you agree to pay back your HMO/Health Plan out of your settlement or judgment for your medical expenses.

But what happens if the guilty party does not have enough insurance coverage to pay all of the damages? Under the old rule, if you or a member of your family was injured in Texas, you stood first in line to collect your damages that resulted from the injury. Your HMO or Health Plan was second in line for money that it had paid for your medical care from the injuries. In many cases, especially car wrecks, there is not enough insurance to go around.

Under the old rule, this meant that if a guilty driver did not have enough insurance coverage to cover all of your damages, then the HMO or Health Pan would not get paid until after all of the injured person's other damages were fully compensated. If your non medical damages used up all of the insurance coverage, then they did not get paid at all.

The logic behind the old rule was that your HMO/Health Plan had already been paid by your premiums to accept the risk for your medical coverage. Since the HMO/Health Plan had already been paid to accept this risk and had contracted/agreed to accept this risk, it was fair for the innocent victim to be paid first and the HMO/Health Plan to be paid second.

In Fortis Benefits v. Cantu the Texas Supreme Court turned everything upside down in favor of your HMO/Health Plan. Under the new rule your HMO/Health Plan has the first bite at the guilty party's insurance. This means that if you are hurt bad enough to need extended care or surgery, your HMO/Health Plan gets all of their money paid back first and you only get paid if there is some insurance money left over. The more serious your injury, the less likely that you will be able to collect or keep any money for your injury.

For serious injuries, the only 2 ways that I know of to fight this are: (1) carry the highest uninsured/underinsured insurance limits possible on all of your vehicles, even on your older autos and motorcycles and (2) get to an injury law specialist as fast as you can. Filing a lawsuit is the only way that you can legally make the guilty party or its insurance company tell you how much insurance they have. And the faster that you can settle or take your case to court, the more insurance coverage that will be left over for you.

TEXAS WORKERS' COMPENSATION

TEXAS WORKERS COMPENSATION

This is the first of several articles I will write on Texas Workers Compensation. One of the legal principles that grew with the industrial revolution is that industry is legally responsible for the injuries caused to the workers that produce the products (and profits) for industry. As more and more workers were killed, crippled, or just injured in industrial accidents, the workers started to win more and more lawsuits against their employers.

In the early 1900's, industry and employers began to lobby state legislatures for what is called "the great trade off." Under the trade off, employers and industry would guarantee medical treatment and wage indemnity for on the job injuries, in exchange for the workers losing their right to sue the employer. This is the basis for all workers compensation laws in the United States, including the State of Texas. Workers compensation is mandatory in every state in the United States, except Texas.

If you are injured on the job in Texas and your employer has workers compensation insurance, you are entitled to compensation for all of your medical expenses related to the injury, 70% of your average weekly wages until you reach "Maximum Medical Improvement", and a small disability settlement based the doctor's physical impairment rating and an impairment formula in the statute. It does not guarantee your current job or any retraining for other employment.

If your employer does not have workers compensation, the only way to be compensated for your on the job injuries in Texas is to sue your employer and collect a settlement or judgment from that lawsuit. In Texas, an employer who does not have workers compensation has a legal duty to provide a safe place to work, safe and adequate tools and equipment, and adequate assistance from other employees to do the job that needs to be done. In following articles, I will compare the advantages and disadvantages to employers who do or do not carry workers comp in Texas and discuss how the formulas work.

AVERAGE WEEKLY WAGE

This is the second in a series of articles related to Texas Workers Compensation. With the exception of medical benefits, the benefits available under Texas Workers Compensation revolve around the "Average Weekly Wage" of the injured worker. Under the law, it is the Employer's responsibility to provide accurate wage information to the workers compensation adjuster.

If an employee has worked for an employer at least 13 consecutive weeks immediately before the injury, the Average Weekly Wage is calculated by averaging the wages paid for that 13 week time period. If an injured employee has worked less than 13 weeks, the Average Weekly Wage is based on the usual wage that employer pays a similar employee for the same kind of work. If there is no similar employee, then the Average Weekly Wage is based on the usual wage paid in that vicinity for the same or similar kind of work.

This formula is based on a 40 hour work week. There are also special rules for special groups such as school employees, part-time workers, seasonal workers, workers with more than one job, minors or students, state military forces, etc.

Wages are supposed to include both "pecuniary" wages and "non-pecuniary" wages. Pecuniary wages are basically all wages paid in the form of money, such as hourly, weekly, bi-weekly, monthly, etc. wages, salary, tips, piecework, expense allowances (but not expense reimbursements), bonuses, commissions, time paid for vacations, sick leave, holidays, or personal time actually used (but not time earned and still unused), etc. Non-pecuniary wages include compensation for items such as health insurance, uniform laundry/cleaning, clothing/uniforms, lodging/housing, food/meals, vehicle fuel, etc.

The injured worker is paid only 70% of his/her Average Weekly Wage. Some of the wage items listed above are frequently left out of the Average Weekly Wage calculations, shortchanging the injured workers. It is hard to pin down whether these wage items are left out the employer's reports because of employer ignorance/laziness, or deliberately because of employer dishonesty.

PERMANENT IMPAIRMENT UNDER TEXAS WORKERS COMP

For about 80 years the Texas Workers= Comp system was based on a "loss of earning capacity.@ The injured worker's benefit for a permanent injury was based on how the injury affected the worker's ability to get and keep a job. For example, an office worker with a sedentary job would get a small benefit for a permanent back injury, but a construction worker with a permanent back injury that prevented a return to construction work might have a total and permanent disability.@ The maximum payment for total and permanent disability in 1990 was only $79,904. Remember, in Texas, if the employer has workers= comp coverage, the employee loses the right to sue the employer for any on the job injuries.

In 1989, after a major battle between the Republicans and Democrats in the Texas Legislature (the Republicans won by 2 votes), the Texas Workers= Comp system was changed to a system based on a permanent physical impairment.@ Beginning in 1991, it no longer matters in Texas whether or not the injury affects your ability to do or keep your job. The only thing that matters now is the percentage of impairment the doctor finds under the AMA Guides To The Evaluation of Permanent Impairment.

This made a dramatic difference in the benefit for a permanent injury. Under the old system a delivery truck driver, construction worker, or factory worker with a back surgery that is unable or not allowed to return to their old job may have been entitled to the $79,904 maximum impairment benefit. Under the new system, using the statutory Guides, the permanent physical impairment rating after back surgery may only be 10 to 20%. The permanent disability or impairment benefit formula under the current law is (70% of the Average Weekly Wage) x (the % of Impairment) x 3.

For example, a construction/factory worker earning $12 per hour has an Average Weekly Wage benefit of $336/week (70% of $480/week). Even with a 20% permanent impairment rating, the final impairment benefit after back surgery would be worth only $20,160 ($336/week x 20 x 3). This system works reasonably well for minor or temporary injuries. However, since Texas employers are not required to provide light duty, retrain, or reassign to lighter jobs, and many employers will not allow an injured employee to return to work without a 100% release with no restrictions, this system grossly under compensates those with serious or permanent injuries.

INSURANCE

WHERE DO ALL OF OUR PREMIUMS GO?

The newspaper article March 4, stating that Texas Home Insurance Rates are Highest In Nation@ did not surprise those of us who follow Texas politics. Recent financial reports (2008) released by the Texas Department of Insurance show that, in spite of a slowing economy, most of the insurance companies in Texas had one of the most profitable years of the decade. This is the fifth straight year that Texas insurance companies have meet or beat a standard benchmark for reasonable profits. Remember, this is in spite of the weather losses from Hurricanes Katrina and Rita in 2005.

The percentage paid out in claims is known as the loss ratio. After overhead expenses such as salaries, office overhead, sales commissions, advertising, lobbying, defense costs, etc. (usually about 30% of its premium dollars), an insurance company that pays out less than 58% of its premium dollars for losses is considered a profitable company. In 2007 Texas insurance companies only paid out 36.5% of your premium dollars in losses. This means profits, after overhead expenses and loss payments, of more than 30%.

The Texas Insurance Board (appointed by Governor Perry) chooses the Commissioner of the Texas Department of Insurance. This agency is supposed to control the amounts Texas Citizens are charged by insurance companies selling insurance in Texas, but it refuses to do so. Of course it is just a coincidence that the insurance industry and its PACs and allies are some of Governor Perry's staunchest supporters.

The Texas Department of Insurance reviews all rate filings by insurance companies and has the legal tools to bring them back into line when they charge excessive rates. Mr. Ben Gonzales, a spokesman for the insurance department publicly admits that even after the very low loss ratios and very high profits reported by insurers last year, no companies were ordered to lower their rates as a result of the agency's the reviews. In spite of the record low losses and high profits reported this year, no similar reviews have been announced by the agency this year.

The Texas Legislature has passed serious tort reform every session since 1995, but our insurance premiums have not come down. The insurance companies have kept the savings from tort reform as increased profits. The only real solution to high insurance premiums in Texas is major insurance reform. However, this is not likely under the current political climate.

DISABILITY POLICIES - THE ICEBERG UNDERNEATH

The basic purpose of a disability insurance policy is straightforward. If there is an injury or illness of any kind that prevents or significantly interferes with your ability to do the job that you were hired to do, you will be compensated as long as you are disabled. But insurance lawyers have a saying, The big print giveth and the small print taketh away.@

The most unpleasant surprise in disability insurance policies is that the definition of a disability@ is different between the short term disability and the long term disability parts of the policy. A Disability@ is usually defined in the short term section of the policy as the inability to do the specific job that you were doing when you became disabled. After the policy's short term time period ends and the policy switches from short term to long term, the definition changes. The long term section of the policy usually defines a disability@ as the inability to do any work that you are qualified to do by training or past experience. This means that after the short term coverage expires, your disability coverage may disappear.

For example, if I had a head injury or a stroke that affected my memory, I could not do my job as a lawyer. But I worked my way through college and law school as a plumber's helper, a carpenter's helper, and as a machinist. I also farmed and ranched with my dad and have experience operating heavy equipment on the farm. A brain/memory disability would prevent me from doing my job as a lawyer, but I would not be disabled under the long term definition.

Another surprise to some is that disability policies usually require you to file for social security disability after the short term disability expires. If you do not file, the insurance company is allowed to reduce your monthly disability check by the estimated amount that you would receive. If you do qualify, they then deduct the actual amount from your check.

The biggest surprise to many is that if your employer paid any part of the premiums for the disability policy, you have lost your rights under our Constitution to have a jury decide if you are disabled. In those cases, the documents in the insurance company's appeal file control whether you will get disability payments or not. For this reason, if your disability is denied or terminated, it is smart to request a copy of all the documents in your file and hire a lawyer immediately to help you find and file the documents that support your claim in the insurance appeal file.

TREE DAMAGE FROM WIND - COVERED OR NOT?

Many of us have tree damage from high winds in the recent storms. Is this covered by our Texas Homeowner's Policy? Maybe, maybe not. Here are the basic facts:

  1. Any damage to building or structure (garage, tool shed, fence, mailbox, etc.) from falling trees or tree limbs is covered. The cost to remove the tree or limb from the damaged structure is covered. There is no limit to these coverages other than the policy limits of your contract.
  2. Damage to fences may be excluded if you have an AA@ coverage policy with a form HO-47OT attached.
  3. After the tree or limb is removed from the damaged structure, the cost to remove the tree or limb from your yard and dispose of it is limited by the debris coverage of your policy. This debris removal coverage may be subject to your deductible, depending on the contract language in your policy. ISO form policies may have a $1,000 limit for tree or limb debris removal.
  4. If there are downed trees or limbs in your yard, but they did not damage any of the insured buildings or structures, did not block your driveway, and did not block a handicap access ramp, there is no coverage for removal.
  5. If your trees or limbs fall on or damage your neighbor's property that is his/her problem and if your neighbor's trees or limbs fall on your property that is your problem. It does not matter who owns@ the tree, you look only at whose yard is it in now.@ The only exception to this rule is if the trees were possibly rotten or diseased and your neighbor was negligent in not removing or pruning the trees before they fell on your property.
  6. If the falling trees or limbs damaged your car that is covered under your auto policy, not your homeowner's policy.
  7. The cost to replace a damaged tree or shrubbery is probably not covered. Loss from vandalism, fire, explosion, lightning or other named perils is often covered, but weather damage to trees and shrubs is rarely covered. Remember, in the world of insurance fair@ or unfair@ does not count. The only thing that matters is what does your insurance contract say, or not say.

LIABILITY

ONE VEHICLE ACCIDENTS

When we read or hear about someone killed or badly hurt in a one car accident, we automatically assume that the accident and/or the injuries are entirely the driver's fault. Right? However, a surprising amount of the time equipment malfunction or bad safety design plays a major part in how the accident occurs or how bad the injuries are.

One of the most common causes of one vehicle accidents is when the right wheel drops off the right side of the roadway, causing the driver to reflexively yank the wheel to the left. This makes the vehicle go sharply to the left and then roll over as the driver desperately steers hard back to the right to try to stay on or get back on the road. Many times the drivers caught in this scenario are young people or other less experienced drivers.

There are computerized steering/brake control systems that have been available to auto manufacturers at a reasonable cost for nearly 10 years that limit or totally prevent this type of accident. Yet many car manufacturers have chosen not to install these proven safety devices in their vehicles because they are not yet required by Federal Law. Under U.S. and Texas law, car manufacturers can be held responsible for unsafe design choices in the vehicles they sell.

A couple of recent examples of unsafe design choices would be under inflated Firestone Tires on top heavy Ford Explorers causing roll overs or the Crown Victoria/Mercury Marquis/ Lincoln Town Car body styles bursting into flames or exploding when hit hard in the rear.

Even if the driver or someone else is at fault, unsafe design choices can greatly increase the risk of a serious injury or death. Some examples would be defective air bags, defective seatbelt locks, or defective door locks that allow occupants to be thrown out and crushed during a roll over. Another example would be a weak/defective roof design that allows the roof to collapse onto an occupant's head during a roll over.

If you know the family of someone severely injured or killed in a one vehicle accident, suggest that they contact a Board Certified Personal Injury Trial Lawyer who specializes in auto collisions to investigate whether or not the injuries or death were preventable by well known and established auto safety design standards. It is essential that this investigation be done while the vehicle involved is still available for inspection by a qualified expert.

EIGHTEEN WHEELER TRUCK ACCIDENTS

There are more than 30,000 injuries and more than 3,000 deaths from collisions involving eighteen-wheelers (semi-trucks) and other commercial vehicles every year. We have more than our fair share in Bell County because of I-35.

It takes experience and resources to maximize your or your family's recovery against a major trucking or transportation corporation. Besides the obvious errors such as driving too fast, tailgating, unsafe lane changes, etc., a Board Certified Personal Injury lawyer will investigate additional contributing factors such as:

  • Safety Defects in the Truck (underride guards, defective air brakes, etc.)
  • Unqualified Drivers (vision impaired, high blood pressure, bad record, etc)
  • Fatigued Drivers (falsified log books, violation of drive time rules)
  • Faulty Equipment or Maintenance (especially the air brakes)
  • Overloaded Trailers (over weight affects stopping distance)

In one death case I discovered that the truck driver was blind in his left eye. This truck driver never saw the car driving in the left lane beside him until it was too late. I proved that the company knew this and even had three other vision impaired drivers driving in Texas. In another death case where the truck driver ran a yield sign, I found that the truck driver had 5 DWIs and over 20 traffic tickets in a five year time period, but was still driving. If the company had reported these violations as required by Federal law, this dangerous driver would have been suspended and this collision/death would have never happened. In one case, I uncovered that the truck's air brakes were not properly adjusted, causing the fully loaded truck (80,000 lbs) to travel twice as far as it should have before crushing the back of my client's car, killing a child in the back seat.

Too many trucking companies hire inexperienced and unqualified drivers that are dangerous to the driving public. Even qualified drivers can make mistakes if they are encouraged or allowed by trucking companies to violate Federal driving restrictions or they are given unsafe equipment. These companies must be held accountable when they cut corners on training, maintenance, or safety.

DAMAGES

A QUESTION OF BALANCE

Jurors on soft tissue injury jury trials tell me how hard it is to decide on the right number for damages. In a soft tissue case, like a whiplash neck injury or a strained back from a low impact car collision, the injury can be very painful and disabling in the beginning, but usually is much better within about two to six months. The effects of the arthritic damage will not become obvious until years later.

Bell County jurors want to be fair. They want to make the careless party accept responsibility for the damage caused by his/her carelessness, but jurors do not want to let someone take advantage of a relatively minor collision by getting too much. The question is how to be responsible citizens and balance the duty to compensate the injured for what they have lost/suffered with the desire to find only the amount deserved or needed.

As a lawyer who has seen hundreds of soft tissue injury cases in over 32 years, here is a method to estimate a fair verdict to compensate the honestly injured without exceeding the insurance of the responsible party (auto insurance is mandatory in Texas, so every lawsuit for an auto collision is really a lawsuit against the responsible party's insurance company). First, calculate the amount of medical expense needed to treat the injury. Second, multiply that number by 3. Third, add in the actual lost wages, if any.

Example: Rear end collision with $1,500 in medical expense and $2,500 in chiropractor or physical therapy expense, for a total of $4,000 in treatment expenses, plus 5 days of lost wages at $150 per day, primarily for treatment visits. Under this formula the jury verdict should total about $12,750. ($4,000 treatment x 3 = 12,000 + 750 lost income = $12,750).

Out of any injury verdict in Texas the treatment providers or the health insurance carriers get paid first. Second, the lawyer will get his attorney fees, usually 1/3, plus trial expenses (all of the responsible party's expenses and attorney fees are paid by his/her insurance company, the injured party must pay his/her own). After all these expenses, the injured person would get about 1/4 of this verdict for his/her temporary disability, pain and suffering, mental anguish, and inconvenience. With a verdict smaller than this, the injured party can end up with nothing or even in debt. CAUTION: this formula is too small for serious/permanent injuries or death.

One of the primary causes of bankruptcy is unexpected medical expense.

THE BEST TREATMENT FOR WHIPLASH

Part of the confusion and controversy related to whiplash is caused by the fact that there are really two types or levels of whiplash. The best treatment depends upon which type/level you have. Most patients (80 to 85%) with whiplash recover in a few weeks or months, but in study after study 15 to 20% develop chronic pain lasting two years or longer.

The lucky 80 to 85% group usually have a sprain/strain type injury to the muscles or ligaments that responds well to restored movement by physical therapists or chiropractors, NSAIDS (like Advil, Motrin, etc.), and/or muscle relaxants. The unlucky 15 to 20% with chronic pain are likely to have an injury to the facet joints, one or more intervertebral discs, or both. These chronic whiplash cases usually respond best to more aggressive therapy, injections, and occasionally surgery. Since it is often difficult for health care providers to determine immediately what type/level of whiplash that you have, early treatment is usually based on the assumption that you are one of the lucky 80 to 85%.

For decades the accepted initial medical treatment for whiplash was rest, limited motion (sometimes with a soft collar) for about 14 days and then gradual self mobilization. However, the more recent medical studies indicate that active intervention care to restore motion such as physical therapy or chiropractic care begun within 96 hours produces a much better long term result. This delayed treatment versus early treatment may explain why some older studies indicate that chiropractic manipulation is generally more effective for treatment of whiplash than medical care.

So how can you get active intervention care started within 96 hours to get the best result? There are three basic problems: (1) You cannot get physical therapy without a prescription from a physician; (2) ER physicians do not prescribe physical therapy and if you have a managed health plan, you cannot get an appointment with a primary care doctor for referral to a medical specialist or physical therapist within the optimum 96 hours; (3) Even though you can see chiropractors without a prescription, most health plans or HMOs will not pay for them.

Our standard recommendations are: (1) if you are in pain and have not already been to the ER to get checked out, go as soon as practical; (2) call the office manager/head nurse of your primary care physician, tell about your symptoms and ask to be worked in for an unscheduled appointment; or (3) if you have already seen the ER physician or you do not have health coverage, you can use your Ano fault@ PIP or MEDPAY auto coverages (they will NOT make your premiums go up) to go directly to a chiropractor for treatment.

LEGAL PROCEDURE

THE STATUTE OF LIMITATIONS

Different types of legal matters have different time limits for filing a lawsuit. As a general rule, a lawsuit filed after the legal time limit for that type of lawsuit will be dismissed by the Court, even if the facts supporting the lawsuit are completely true. After the lawsuit is filed, the time limit stops running, even if the lawsuit is not tried or settled until after the time limit.

Here are the statutory time limits for filing many common types of lawsuit:

One Year Limitation Period - Libel, Slander, Malicious Prosecution, Breach of Promise of Marriage, Suit to set aside Sale of Property seized under the Tax Code:

Two Year Limitation Period - Personal Injury Actions (any type of physical harm including a car wreck, malpractice, slip and fall, on the job injury, product liability, wrongful death case, etc.) Actions for Deceptive Trade Practices, Injuries to Property or Holding Property Wrongfully (property damage, conversion of personal property, taking and detaining personal property, forcible detainer against a tenant, etc.)

Four Year Limitation Period - Contract Actions, Suit to Collect a Debt (including credit cards), Fraud, Breach of a Fiduciary Duty, Breach of Express or Implied Warranty, Credit Accounts, etc.

The limitation period for law suits related to the ownership or possession of real estate can run any where from three years to twenty-five years, depending on the facts (See Texas Civil Remedies Code, Sections 16.021 to 16.037).

There are even limitation periods for criminal offenses in Texas - Two years to file an information or indict for all misdemeanors and anywhere from three years to ten years (depending on the offense) to indict for felonies, except murder and certain sexual assaults which have no time limit.

These straight forward time limits are highly complicated by numerous technical rules and exceptions that control when the time starts running or may be stopped or even extended. Even if you are not ready to hire a lawyer or do not think that you will need a lawyer, the safe and smart thing to do is to contact a lawyer to find out what the time limit will be under your fact situation just as soon as you realize or suspect that you may have a case.

CONSUMER

THE ABIND @ IN BINDING ARBITRATION

Arbitration is a method of settling disputes by presenting the facts and arguments to a person or panel to decide who should win and how much the damages are. Voluntary arbitration is a useful tool to settle certain types and sizes of lawsuits. However, many corporations and companies now require customers and consumers to give up their Constitutional and Seventh Amendment Rights to a fair trial by judge or jury and limit them to a binding@ arbitration.

The problem is that binding arbitrations are one sided in favor of big businesses or companies that have repeated complaints from consumers. Here is how:

In a normal business dispute between a company and a consumer, a Texas consumer has the right to take claims smaller than $10,000 to small claims court before a Justice of the Peace without a lawyer (just like People's Court@ or Judge Judy@, etc. on TV). The filing fee is only about $90. The cost of the judge, court facilities, and staff are covered by our tax dollars. But in binding arbitration, the claimant must pay 2 of the cost of the arbitration up front, including the cost of the location where the arbitration is held. The consumer's 2 of the fees for binding arbitration normally runs about $5,000 to $20,000. This means that under a binding arbitration contract most consumers cannot afford to dispute a claim. And since they have contracted away their right to go to court, on most disputes they have no remedy at all.

Also, studies show that in binding arbitration the arbitrators decide against the consumer about 80% of the time. Authors who have studied this problem believe that this is because the arbitrators know that if they rule against a corporation or business, they will be blacklisted from being the arbitrator on future cases against that company. But an arbitrator that decides in favor of a company is likely to be asked to arbitrate for that company again. The consumer is not likely to have any future cases for the arbitrator.

Types of companies most likely to use binding arbitration contracts are companies like banks, credit card companies, insurance companies, contractors, etc. For example, if you are getting your roof replaced because of recent hail damage, look under the A Dispute Resolution@ or Arbitration@ paragraph on the back of your contract and see if you have given up your legal rights without even knowing it. Some of these can be beaten, if your lawyer knows how.

UNIVERSAL HEALTH CARE

Most developed countries have universal health care. Why can't we? Studies show that between five and six million people in Texas do not have health insurance - about 25% of Texas= population. This is the highest/worst in the U.S. If you eliminate all non-citizens, both legal and illegal it drops to 20%, but is still the worst in the nation. On the other hand, if you drop people over 65 (covered by Medicare) and those under 17 (in other words, working age people from 17 to 65), the percentage jumps to 30% uninsured in Texas.

The two solutions proposed are a universal health insurance@ and a single payer plan@ (the government). Universal health insurance plans propose passing legislation to require all businesses to provide health insurance coverage to their employees and tax incentives for non working people so they can better afford to buy insurance. The business community would raise their prices to pay for the coverage. This type of plan is generally offered by Republicans. The single payer plan basically means that the government will provide the coverage and all taxpayers will pay for it. This type of plan (which is what other developed countries have) is usually suggested by the Democrats. Which to choose? Which is better?

I asked this question to a senior Scott and White administrator speaking to the Temple Lion's Club last year. He said that he might sound like a heretic, but that Scott and White had studied this and concluded that the single payer plan (government) would be the best choice. He says the health insurance companies take an average of about 20% of your health care dollars as profits. Even more in administration and overhead costs. And although he is not in favor of more government, eliminating the health insurance companies as an additional profit center competing for a part of your health care dollars is the most reasonable choice.

A recent report card@ on health insurers issued by the American Medical Association (AMA) reinforces his logic. According to the AMA, in our present multiple payer system, doctors and hospitals spend an additional 14% of your health care dollars on just trying to collect from the insurance companies. Medicare performed better than the top seven health insurance companies in almost all areas of the AMA's study. Looks/sounds like we could afford to have universal health care for about the same money we are paying now if we just eliminated the profit and collection cost burden of the health insurance companies.

HEALTH CARE QUALITY IN TEXAS

The Quality of Health Care is rated by state by state in a recent report by the Commonwealth Fund. The Commonwealth Fund is a private foundation that supports independent research on health issues. The report features a scorecard ranking states on 32 indicators of health care access, quality, potentially avoidable use of hospitals and costs of care, equity and the ability to live long and healthy lives.

Oklahoma, Mississippi, TEXAS, and Arkansas finished at the bottom. Hawaii, Iowa, New Hampshire, and Vermont scored the highest overall. Texas was 49th, while Oklahoma and Mississippi tied for 50th out of 51 (District of Columbia was included for a total of 51).

The study estimates that if all states did as well as the top-performing states, there would be 90,000 fewer deaths before age 75 per year, 22 million currently uninsured adults and children would have health insurance coverage, and Medicare (and Taxpayers!) should save at least $22 billion per year.

There was no correlation between the higher cost of care in some states and the quality of care. The authors believe that this is because states with higher medical costs have higher rates of preventable hospital use, such as high admission rates for preventable complications from diabetes, asthma, and other chronic conditions.

States with the lowest rates of uninsured persons in the state tend to score the highest on measures of preventive and chronic disease care, as well as other indicators of quality. If Texas politicians continue to support policies that promote higher numbers of medically uninsured people in Texas, it is likely that Texas will continue score low on the quality of healthcare when compared with other states. Read the study at: http://www.commonwealthfund.org/publications/publications_show.htm?doc_id=494551.

WHAT TO DO AFTER THE ACCIDENT

Do not volunteer information or comment on the accident. Do not sign any pieces of paper nor agree to pay for damages. You should, however, cooperate with police officers investigating the case. You must sign traffic tickets but this in itself is not an admission of guilt or wrongdoing. Advise the officer of basic facts, without adding personal comments or interpretations. Keep calm and tell the truth.

Give reasonable assistance@ to any injured persons. Do not move anyone who is badly injured, unless there is danger for greater injury by leaving him alone. If needed, call for an ambulance.

Call 911 and ask for the police or Texas Highway Patrol to come out to the accident scene to investigate. They are much more likely to be interested in filing a report on the accident if there were: 1) any traffic laws broken, 2) any drugs or alcohol involved, 3) injury (even if minor) to any of the persons, or 4) substantial property damage incurred (over $500). If the police are not called or will not come out to the scene of the accident to file a report, you are required by law to go to the police station to file a written report within ten days if there are any injuries or property damage over $500. This is especially important to help you preserve your rights if you have to make an uninsured motorist claim against the insurance company.

If possible, do not move the vehicles until a record of the accident has been made. All drivers must identify themselves to each other. Copy down information contained on all driver's licenses, vehicle registrations, and insurance cards. Identify all passengers and witnesses before they leave. You will need their names, addresses, and phone numbers. Take photographs if at all possible.

As soon after the accident as possible, it would be a good idea to be checked out by a doctor. Even if there are no initial signs of pain, there might have been damage done to the neck or spinal cord. Remember the value of an injury claim is set by your medical paper trail.

Contact your insurance company, usually within 24 hours, to file a claim. You may want to talk to a personal injury lawyer at this time to clarify your rights and discuss questions of liability for the accident. You also need to file an accident report with the Department of Public Safety within 10 days, if a police officer did not file a report.