Proposed Law Will Make Telephone Solicitation of Accident Victims Illegal
By Rachel E. Montes posted in New Laws and Legislative Updates on Sunday, May 31, 2009
The Texas legislature has passed HB 148, a bill that has been widely supported by the Texas Trial Lawyers Association, Texas Chiropractic Association and by various insurance groups to stop the practice of soliciting the victims of auto accidents and other incidents illegal via telephone or in person. The bill still needs Governor Perry’s signature to become law, but considering the widespread support of this bill from all sides of the political spectrum, Governor Perry is expected to sign the bill into law. The new law would make such solicitation a criminal offense.
This legislation is particularly aimed to stop the practice of “public adjusters,” telemarketers and solicitors who contact accident victims by purchasing accident reports from local police departments in order to encourage the victims to see a particular doctor or attorney by promising them money.
While some people may be surprised to hear that the Texas Trial Lawyers Association ( a group of lawyers that primarily represent accident victims) and the Texas Chiropractic Association have long since supported this type of legislation. This legislation is seen as a way to curtail questionable legal and medical practices that negatively impact the value of meritorious claims. This legislation is also expected to help victims of accidents get better medical care and better legal representation by stopping the practice of soliciting accident victims.
This law does not change anything for lawyers, as it was already a crime and an ethical violation for lawyers to make an unsolicited contact of accident victims. However, there was a loophole in the law that allowed chiropractors to purchase these police reports and to contact accident victims. This new law is seen as a way to close that loophole.
While this new law makes the solicitation of these accident victims a crime, it is important to note that this proposed new law does not make it illegal for a doctor or a lawyer to advertise their services because every business has the right to advertise. Just like the insurance companies that pay millions of dollars to advertise and to market their business on TV, radio, internet and in the paper, doctors and lawyers have the same right to advertise their business. Further, just like it is not unethical for an insurance company to advertise, it is not unethical for doctors or lawyers to advertise as long as the ads are not misleading.
At Montes Herald Law Group, LLP, we strongly support this bill, and we hope that it becomes law. We have seen victims of car wrecks who are seriously injured have the value of their claim diminished because the insurance companies have tried to convince people through their advertising campaigns that all attorneys are “ambulance chasers” or that every injured person is faking it. As in all professions, there are a few bad apples that ruin it for everybody. If you are contacted directly by a solicitor, we encourage you to report that contact to the State Bar of Texas and to your local district attorney. The truth is that the vast majority of all doctors and attorneys conduct themselves in a completely ethical and legal manner, and would never engage in such solicitation.
You should never pick your doctor or your attorney simply because they have a good advertisements. What really matters is experience.
Attorney Rachel Montes has earned a reputation as a no-nonsense, assertive advocate determined to take on and overcome powerful opponents. In 2006, she was recognized as one of Dallas’ “Best Lawyers Under 40,” reflecting not only her success in obtaining millions in recoveries by settlement and trial verdict, but her tireless effort in every case we handle. Mrs. Montes is a dynamic, innovative courtroom and negotiating presence, known for her follow-through and engaging communication style.
For over a decade, Thomas A. (Tom) Herald built and tried cases in defense of insurance companies’ interests. Since turning his attention entirely to representing personal injury and wrongful death victims, this experience has been an irreplaceable asset. Simply stated, Mr. Herald – now a veteran of over 120 jury trials and many more favorable settlements – knows how insurers operate and the range of defense strategies they employ. Equally important, he knows how to evaluate your case and counter those strategies accordingly.
Be sure to go to our website at www.MontesHerald.com to learn more about our lawfirm.
Gas Leak at the Kensington Motor Lodge and Apartments Kills 3
By Rachel E. Montes on Sunday, May 31, 2009
A 62-year-old woman, her boyfriend and her adult son along with 3 dogs were all found dead at the Kensington Motor Lodge and Apartments in Grand Prairie around 2:40 pm. today. It appears they may have died from carbon monoxide poisoning. Grand Prairie Police Department spokesman Detective John Brimmer says the level of carbon monoxide in the apartment was “off the charts.” A concerned relative found the victims and called police about 2:40 p.m. Identities of the people and the cause of the gas leak have not been released. However, the hotel was built in the 1960’s and appears to have been in need of repair.
Hopefully, you will never be faced with this heartbreaking loss, but if you are, you should consider hiring Irving attorneys Montes Herald Law Group, L.L.P. to investigate the incident and to hold those who are responsible for the loss of your family members. In a premises liability claim such as this it is important to begin an investigation of the condition of the premises as soon as the police and fire department release the scene. Too often, businesses neglect necessary repairs in the name of profits allowing dangerous conditions and code violations to exist without taking necessary action to protect their “invitees” and guests. If you or a family member has been seriously injured or killed while at a hotel or other business, contact Rachel Montes and Thomas Herald at Montes Herald Law Group, LLP immediately and visit our website at www.MontesHerald.com for more information about “premises liability” cases we handle
Questions To Ask Day Care Centers
By Rachel E. Montes posted in Premises Liability: Claims Against Daycare Facilities and Employees on Sunday, May 31, 2009
If you are a parent or a guardian of a child, and you need to locate a suitable day care facility, be sure to ask questions to make sure that the facility as properly managed, staffed and focus on the health and safety of the children that are entrusted to it.
Questions To Ask Day Care Providers:
1. Is the day care center licensed to provide day care services by the State of Texas?
2. If the facility claims to be licensed, ask for a copy of the license.
3. Ask for copies of all publicly available information, including any complaints or actions filed against the program, site visit evaluations, violations, and corrective actions.
4. Does the facility provide an academic curriculum?
5. Does the day care facility require that there is always a teacher present who is certified or licensed by the state?
6. What is the minimum number of employees or staff that will be present with the children at any time?
7. What are the credentials of the staff, especially the counselors and therapists, who will be working with my child at the day care facility?
8. Does the day care facility conduct background checks on its employees to ensure that they are fit for the job and verify that the employees are not registered sex offenders, or have any convictions that would make them unfit for the job?
9. Is the day care facility accredited by organizations such as the Joint Commission (JACHO), the Council on Accreditation (COA), and the Commission on Accreditation of Rehabilitation Facilities (CARF)?
10. Does the day care facility have a clinical director?
11. What is the procedure for handling medical emergencies?
12. What are the policies for permitting children who are ill to attend the day care facility?
13. What policies does the day care facility have for discipline?
14. How well maintained is the facility?
If you are not comfortable with the response to these basic questions, it is likely that the facility is not going to be able to meet your expectations and to properly protect your child. In addition, be sure to make unannounced visits to the facility and to pay attention to signs of trouble such as unreported bruises and changes in your child’s behavior.
If you suspect that your son or daughter has been injured, abused or neglected by a day care facility or a day care worker, contact Montes Herald Law Group, LLP to discuss your case. If you have proof that your child has been abused by a day care worker, you should also contact the police and immediately report the incident to protect your child and the other children at the facility.
Attorney General Sues Conn
By Rachel E. Montes posted in Deceptive Business Practices on Wednesday, May 27, 2009
The Texas Attorney General filed a lawsuit on May 28, 2009 against Conn’s, Inc., the consumer electronics and home furnishings retailer. The lawsuit alleges Conn’s has violated the Texas Deceptive Trade Practices Act (more commonly referred to as the “DTPA“). The DTPA is a Texas law which is to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection. The Attorney General has alleged that Conn’s Inc. has:
- failed to honor product warranties, misleading customers about products, false advertising and encouraging employees to use “high-pressure tactics” to sell those warranties;
- distributed brochures claiming that replacement warranties will protected the consumer for purchases “for a two full years from the date [they] purchased the product.” But the state said customers didn’t actually receive two-year warranties and stores failed to provide customers with a copy of the agreement at the time of sale;
- failed to “adequately inform [the customers] about exclusions, limitations, cancellation penalties and other provisions governing their warranty agreements.”
- delayed repair appointments for weeks or even months, failed to repair the item to working condition, ignored calls, and ultimately, refused to give refunds or replace the defective products.
- repaired or replaced goods with refurbished goods, instead of new products, as promised.
The warranties at issue range in cost from $100 to $1,000, depending on the product. The State claims that the sales associated were compensated for selling them, and that the sales associates were instructed to “create a sense of urgency” and paint a negative picture of what a customer would face without a warranty when something went wrong with the product in order to encourage sales of the warranties.
The state is seeking civil penalties and a court order prohibiting Conn’s stores from continuing its unlawful conduct. The Attorney General seeks civil penalties of up to $20,000 per violation of the Texas Deceptive Trade Practices Act. In addition, the state is seeking a $250,000 penalty if Conn’s conduct financially harmed persons aged 65 or older.
Businesses in Texas owe their customers an obligation to conduct their business in a fair and honest manner, and can be held liable for the damages they cause as a result of their false, misleading, and deceptive business practices. In this case, the Texas Attorney General is stepping in to try to protect consumers from what it sees as a series of violations of Texas law. However, individual consumers have the right to demand that the companies they do business with comply with Texas law. In addition to the actual damages that a consumer can recover in the event of such a loss, the company can be penalized and made to pay up to three (3) times of the actual damages, plus reasonable attorney’s fees and costs of court. If you have a consumer transaction where you feel that you were treated unfairly or where you were not delivered the goods or services that you were promised, contact Rachel Montes or Tom Herald at Montes Herald Law Group, LLP, attorneys in Irving, Texas, to discuss your case and your rights.
Lawsuit Claims Shampoo and Other Products Contain Cancer Causing Agents
By Rachel E. Montes posted in Medical Claims: Defective Medical Devices on Monday, May 25, 2009
Bloomberg.com has reported that a lawsuit has been filed against Johnson & Johnson, the world’s largest maker of health-care products, and Proctor & Gamble Co. and other manufacturers sold shampoo and personal-care products containing formaldehyde and other carcinogenic compounds known to cause cancer. Among the products at issue included in the lawsuit are Johnson & Johnson’s Baby Shampoo” and other top-selling children’s bath and personal care products. Johnson & Johnson reported sales of $63.7 billion last year alone.
Consumers have a right to know what chemicals and agents are placed into the products they purchase. More importantly, manufacturers of these products have a responsibility to design, manufacture and to provide warnings on products they place into the stream of commerce that are not unreasonably dangerous. If you or a family member has been seriously injured by a product that you feel was not designed in a safe manner, or was defectively manufactured or did not include sufficient warnings, be sure to contact Rachel Montes or Tom Herald at Montes Herald Law Group, LLP for a free case evaluation.
Day Care Worker Charged with Sexual Assault of Child
By Rachel E. Montes posted in Daycare Laws on Monday, May 25, 2009
Garland police have charge Cesar Najera-Zayala (55) with sexual assault of a girl under the age of 10 at the day care facility where Mr. Najera-Zayala worked. Najera-Zavala goes by “pastor” and is the director of the Amiel Christian School. “He’s the one that oversees the entire ministry,” said Adrian Najera, his son. While Garland Police have indicated that they are investigating the possibility of more victims, Mr. Najera has denied that the incident occurred and issued a statement, “We’re in the last two weeks of school, and this specific parent that came up with these accusations has a pretty outstanding balance with the school,” CBS 11 News is reporting that it has learned the Garland daycare center has been operating illegally and has been ordered to shut down.
At Montes Herald Law Group, LLP we understand that parents place a high level of trust in day care centers to protect their children. There are several Texas laws that are in place that are designed to protect children and to ensure that day care facilities are operated in a manner that reduces the risk that children will be victimized. These laws require that day care centers must be properly licensed, staffed and operated in a safe manner. In addition, day care facilities have a duty to conduct an investigation into the background of workers to make sure that they do not pose a risk of harm to the children. If you are concerned that your child has been physically or sexually assaulted by a day care worker or seriously injured while at a day care facility, you need to take immediate action to protect your child. Report the incident to the police immediately. Then, contact Montes Herald Law Group, LLP to investigate the matter.