Year: 2016

The 7 Stages of a Car Accident Claim

If you or a loved one is involved in a motor vehicle or car accident, it is unlikely you will be prepared for what is to come.  Here is a simple step by step guide showing what you can expect:

  1. Car Accident: Of course, the first step is the car accident.  If you are in a car accident, it is imperative that you get immediate medical treatment.  It is not unusual for people injured in a car accident to think they are fine immediately after the accident, because their adrenaline is high or they are worried about something else besides themselves.  They refuse medical treatment, either an ambulance or a trip to the emergency room, but then later on or even the next day, they are in severe pain, because they have been injured.
  2. Hire an Attorney: Ideally, if you have been injured in a car accident, you should hire a personal injury attorney right away.  Once you have hired an attorney, the attorney can help you with every aspect of the case.  The attorney will help you get your vehicle fixed, get a rental car, find appropriate medical providers, settle your claim, and file a lawsuit, if necessary.
  3. Get Medical Treatment: There are many doctors that do not handle injured victims of car accidents.  Your attorney can help you find doctors that will help you get back to being yourself and that will not charge you anything up front.  It is very important to get medical treatment as soon as possible.  The longer you wait to get medical treatment, the more likely the insurance company will be to claim you were not actually injured in the car accident.
  4. Make a Demand: Once your treatment is complete, your attorney will collect ALL of your medical records and medical bills, as well as any documentation for your lost wages or any future medical bills.  This will be prepared into a demand package and sent to the insurance company.
  5. Negotiations: After the demand package is sent to the insurance company, your attorney will attempt to negotiate a favorable settlement for you with the insurance company.  This can be a time consuming process with many offers, demands, counter offers, and counter demands.  An experienced personal injury attorney, can help you set reasonable and realistic goals for the negotiations and give you an idea of what similar cases are worth in your area.
  6. Settlement: Congratulations!  But, the case isn’t finished just yet.  At this point, you still have to pay your medical bills, your attorney, and any of the costs or expenses associated with the claim.  Your attorney should negotiate with your medical providers to make sure all of your medical bills are paid and get you the money you deserve.
  7. File Lawsuit: If the case does not settle, your attorney will then file a lawsuit.  Keep in mind, even though a lawsuit has been filed, this does not mean your case will necessarily go all the way to a jury trial.  It is common for settlement negotiations to continue between your attorney and the attorney for the insurance company during the lawsuit.

Once you hire an attorney after a car accident, it is the attorney’s job to assist you with all aspects of your case and car accident claim.  Having an attorney assist you with the case, allows you to focus on the most important task, getting better and getting back to normal, while your attorney deals with the time consuming demands of the insurance company.  If you or a loved one have been injured in a car accident, call us today so we can take the pressure of having to deal with the insurance company off your shoulders and let you focus on getting better.

Top 3 Things To Do If You Have Been Sued

  1. IMMEDIATELY CONTACT YOUR INSURANCE COMPANY: If you have been sued for a car accident, something that happened inside your home, or for any other situation where you might have insurance to cover the claim, immediately contact your insurance company and notify them of the lawsuit.  In situations like these, the insurance company has a duty to hire an attorney to defend you, but only if you promptly notify them.  In Oklahoma, you or your attorney only have 20 days to respond to the lawsuit or a default judgment could be entered against you, so it is imperative that you contact your insurance company immediately.  This gives your insurance company enough time to retain an attorney on your behalf and for the attorney to properly respond to the lawsuit.
  2. CONTACT AN ATTORNEY: If you have been sued (and you do not have insurance or your insurance is not going to defend you), immediately contact an attorney.  As we mentioned above, you only have 20 days to respond to the lawsuit once you have received it.  If a default judgment is entered against you for failing to respond, it can be very hard, if not impossible, to get a default judgment overturned.  It is much easier to simply respond on time and never have the default judgment entered against you, than to try and get a default judgment overturned.
  3. DO NOT POST ANYTHING ON SOCIAL MEDIA: This one may seem completely obvious or at least it should seem completely obvious, but defendants (and even some plaintiffs) post things on Facebook or Twitter or some other social media site that is damaging to their case.  In one case, I was representing a jailer that had been accused of strip searching a woman.  This was the central issue in the case, whether or not what happened was in a strip search.  Well, unfortunately, the attorney for the plaintiff found that my client had posted on myspace “a strip search with every accommodation” as her quote.  This was very damaging and we ultimately lost the case.  Likewise, 50 Cent is currently involved in a bankruptcy case.  Recently, he has posted photographs of himself with large piles of cash.  Because he has been posting these pictures, he was summoned to court to explain to the judge whether he was hiding assets, a very serious charge.  Turns out, he was posing with fake money, which is probably even more embarrassing for his public image and persona than the bankruptcy case.  The lesson here  is quite simply, do not post anything on Facebook that the other side could use against you in court.  Just don’t do it!

Oklahoma’s Never-Ending Quest to Erect A Ten Commandments Monument at the State Capitol

As we first discussed in Devil Be Gone: Oklahoma and the Ten Commandments Monument, on June 20, 2015, in Prescott v. Capitol Preservation Commission,  the Oklahoma Supreme Court found that the Ten Commandments monument at the State Capitol had to be removed pursuant to Article 2, Section 5 of the Oklahoma Constitution.  This section states “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”

Immediately, members of the Oklahoma legislature called for the repeal of this section of the Oklahoma Constitution and to impeach the Supreme Court justices that voted against the Ten Commandments Monument in Prescott.  Now, there have not been any real attempts to impeach the Supreme Court justices, but House Bill 3162 was recently passed to significantly change the Judicial Nominating Commission (which was established decades ago in the wake of a bribery scandal among Supreme Court justices in the 1960’s).  The sponsor of this bill, House Speaker Jeff Hickman, R-Fairview, says the Judicial Nominating Commission’s power to select top judicial candidates has been greatly overdone and needs to be trimmed back, but in reality this was  not an issue until after the Oklahoma Supreme Court’s Ten Commandments decision.

Similarly, the Oklahoma House and Senate have both passed bills to ask voters to repeal Article 2, Section 5 of the Oklahoma Constitution.  Rep. John Paul Jordan, R-Yukon, whom I consider a personal friend, says “that if Article 2, Section 5, is not removed from the Constitution, a range of state activities that touch on religious institutions, including support for religious-affiliated hospitals, could be invalidated, particularly given the Supreme Court decision.”  And, to be fair to Rep. Jordan, that is a concern, but it is overstated and it is clear from the rhetoric immediately following the Oklahoma Supreme Court’s decision in Prescott that this is really about the Ten Commandments monument.  Besides, those that make this argument point to no Oklahoma case law to support their position.  In fact, there are two cases dealing with challenges brought under Article 2, Section 5 where the Oklahoma Supreme Court found that the maintenance of chapels for the use of the children in a state orphans home did not violate Article 2, Section 5 (State ex rel. Town of Pryor v. Williamson, 1959 OK 207) and where the maintenance by the city of a cross on the city’s fairgrounds did not violate Article 2, Section 5 either (Meyer v. City of Oklahoma City, 1972 OK 45).  I think it is fair to say that the fear that failing to repeal Article 2, Section 5 will result in Native American art being taken down or support for religious-affiliated hospitals being invalidated is overblown, at best.

The bottom line is, even if the people of Oklahoma vote in favor of repealing Article 2, Section 5 and the Ten Commandments monument is re-erected on the grounds of the State Capitol, it will likely all be for not.  Why?  Because, the Ten Commandments monument, most likely, also violates the First Amendment to the United States Constitution.  The First Amendment, in relevant part, states “Congress shall make no law respecting an establishment of religion.”  The First Amendment applies to the States through the Fourteenth Amendment.    In Van Orden v. Perry, the United States Supreme Court ruled on a challenge to a Ten Commandments monument on the grounds of the Texas State Capitol.  This Ten Commandments monument was nearly identical to the one that was on the grounds of the Oklahoma State Capitol and the Supreme Court found that it was permissible for Texas to have it.  However, there are significant factual differences between the Oklahoma Ten Commandments monument and the Texas Ten Commandments monument.  For example, the Texas Ten Commandments monument was a gift from the Fraternal Order of Eagles in 1961 and had been in place for 42 years before the lawsuit was filed challenging its placement.  Further, it was part of a display of seventeen monuments, all located on grounds registered as a historical landmark, and it was carefully located between the Supreme Court building and the Capitol building housing the legislative and executive branches of government.  The Supreme Court specifically mentioned the importance of these facts in determining that the Texas Ten Commandments monument was permissible.  By contrast, the Oklahoma Ten Commandments monument has no history.  It was placed on the grounds of the State Capitol in 2012.  It was not donated to the State by the Fraternal Order of Eagles, or some other secular organization, but was paid for by the family of State Rep. Mike Ritze, who also authored the bill to allow for the Ten Commandments monument to be placed on the grounds of the State Capitol.  Further, this monument was not placed among many other historical monuments, but was placed in an isolated location far from the main entrance to the Capitol.  Because the Oklahoma Ten Commandments monument is a new monument with no history, it is likely the Supreme Court would find it is in violation of the First Amendment.

I think it is fair to say that, clearly, these measures are in direct response to the Oklahoma Supreme Court’s Ten Commandments decision and that is a shame.  The continued pursuit of placing the Ten Commandments monument on the grounds of the Oklahoma State Capitol disenfranchises Oklahomans who are not Christian and is time consuming and expensive for the State to defend.  At a time when we have a $1.3 billion budget shortfall, wasting money defending a monument that is more than likely unconstitutional seems like a waste of time and resources.

Natural Born Citizen and who can be President of the United States?

Recently, the question of who is Constitutionally eligible to serve as President of the United States has become a national issue.  There were those that claimed President Barack Obama was ineligible to be President, because he was actually born in Kenya and those that argued “natural born citizen” meant both parents had to be United States citizens.  The issue has again risen to the forefront, because Donald Trump has claimed that Senator Ted Cruz is not a “natural born Citizen” based on his birth in Canada.  This blog will examine the Constitutional requirements to be President and what is meant by “natural born Citizen.”

Article II, Section 1 states, “[n]o person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”  Since, Sen. Cruz was clearly not a Citizen of the United States at the time of the adoption of the Constitution, he has to be a “natural born Citizen” to be eligible to the Office of President.  Unfortunately, “natural born Citizen” is not defined, at all, in the Constitution. To interpret the Constitution, we must look to the British common law at the time the Constitution was adopted and at the actions and words of the First Congress, because so many of the members of that Congress were directly involved in the drafting of the Constitution.

First, in looking at the British common law, the laws in effect in the 1700’s stated that children born outside of the British Empire, but to subjects of the Crown were subjects themselves and even explicitly used the term “natural born” to describe these children. 128 Harv. L. Rev. 161, March 11, 2015.   In fact, as early as 1343, the British Parliament passed a statute stating “there was no manner of doubt that the children of our Lord the King, whether they were born on this side of the sea or beyond the sea, should bear the inheritance of their ancestors.”  In 1677, 1708, and 1731 the British Parliament passed additional statutes that explicitly said children born to fathers (even mothers were included in the 1677 statute) that were natural born subjects of the Crown were natural-born subjects of Britain.  United States v. Wong Kim Ark, 169 U.S. 649 1898.  Although not dispositive of this inquiry, it is certainly informative to note that even in France, around the time of the drafting of the U.S. Constitution, it was the general rule and understanding that “children born in a foreign country, of a French father…, were also deemed Frenchmen.”  Thus, the British common law, at the time of the drafting of the U.S. Constitution, clearly embraced the concept that a child born to a citizen of Britain, at least to the father, was a natural born Citizen.

Likewise, the acts of the First Congress fall in line with the British common law.  In 1790, just three years after the drafting of the Constitution, the First Congress established that children born abroad to U.S. citizens were in fact U.S. citizens at birth and stated they “shall be considered as natural born citizens.”  Even more persuasive than just the acts of the First Congress is the fact that by successive acts Congress has routinely provided foreign-born children of U.S. citizens with citizenship at birth.  These statutes have been passed by Congress in 1790, 1795, 1798, 1802, 1804, and 1855.  United States v. Wong Kim Ark, 169 U.S. 649, 1898.  The statute in force when Sen. Cruz was born, enacted in 1952, provided for the citizenship at birth of a child born outside of the United States to a parent citizen, so long as that parent had been physically present in the United States for one year prior to the birth of the child.  Act of June 27, 1952, 66 Stat. 235-236; Title III, ch. 1, section 301(a)(7).   It is safe to say, since the drafting of the Constitution, it has been widely understood that children born abroad to a citizen of the United States was also a citizen at birth.

Interestingly, this debate has only become so intense in recent elections.  Senator Barry Goldwater was born in Arizona before it was a state, but he was the Republican Presidential nominee in 1964.  Governor George Romney was born in Mexico to U.S. citizen parents and ran for the Republican Presidential nomination in 1968.  And, in 2008 when Senator John McCain, who was born to U.S. citizen parents in the Panama Canal Zone, was running for President as the Republican nominee, the U.S. Senate unanimously passed a resolution stating that any interpretation of the natural born citizenship clause as limited to those born within the United States was “inconsistent with the purpose and intent of the ‘natural born Citizen’ clause of the Constitution of the United States, as evidenced by the First Congress’ own statute defining the term ‘natural born Citizen.’”  128 Harv. L. Rev. 161, March 11, 2015.    S. Res. 511, 110th Cong. (2008).

Now, there are those that argue Sen. Cruz is not a natural born Citizen because “a natural born citizen cannot be someone whose birth entitled him to citizenship because of a statute – in this case a statute that confers citizenship on a person born abroad to an American parent.”  “Ted Cruz is Not Eligible to be President”, Feb. 8, 2016.  Or because “the framers of both the original Constitution and the 14th Amendment seem to have distinguished between constitutionally and legislatively conferred citizenship.  Those who acquire their citizenship by virtue of birth in the United States are, according to the 14th Amendment, constitutionally conferred citizens, which also seems to be the original understanding of “natural born” citizens.”     Ted Cruz Isn’t a ‘Natural Born’ Citizen, Feb. 19, 2016.  The problem with these arguments is that, as shown above, the British common law and the acts of the First Congress (and subsequent Congress after subsequent Congress) has afforded citizenship, even “natural born” citizenship, on the children of citizens born abroad.  This was discussed in depth over 100 years ago by the United States Supreme Court in United States v. Wong Kim Ark.  The second problem with this argument is that the 14th Amendment was not ratified until July 9, 1868 – well after the drafting of the Constitution.  Considering the British common law and the actions of the First Congress, both sources routinely approved by the United States Supreme Court to be used in interpreting the Constitution, support this position, it is antithetical to use the language found in the 14th Amendment to argue otherwise.

Although it would be quite ironic for Sen. Cruz to be ineligible to run for President based on an originalist approach to the Constitution – considering his love of that theory – it just doesn’t fit here.  As Congress has recognized since the founding of this nation, a foreign-born child of a U.S. citizen is a “natural born citizen” and is eligible to serve as President.

Should You Have Uninsured Motorist Coverage?

In Oklahoma, motorists are only required to have $25,000.00 in automobile insurance to cover potential injuries they may cause while driving.  Unfortunately, with the rapidly rising costs of healthcare, $25,000.00 does not go very far.  In many situations, an innocent individual, who just happens to have the misfortune of being hit by someone with these minimum limits, will be stuck with medical bills that far exceed $25,000.00.  If the individual is lucky, the doctors and hospitals may be willing to take a pro-rata share of the available $25,000.00 and call it even, but they do not always do so, leaving the innocent individual with thousands upon thousands of medical bills to pay for, even though they did nothing wrong.

What can you do to try and make sure this doesn’t happen to you?  Well the most important thing you can do is make sure you plan ahead and get the appropriate insurance coverage on your automobile policy.  In Oklahoma, drivers are given the option of purchasing uninsured/underinsured motorist coverage or UM/UIM coverage for short.  Many Oklahoma drivers decline to purchase this insurance, because it is optional and it makes their auto insurance premium increase.  This is a huge mistake.  In a situation where your medical bills exceed the amount of available insurance from the other driver or even where the other driver has no insurance at all, you would be able to collect from your UM/UIM coverage – assuming you decided to purchase it.  And having UM/UIM coverage can be a huge boost in a case like this, because if you have more than just the state minimum coverages you could have $50,000.00, $100,000.00, or more in UM/UIM coverage to help pay for your medical bills and other damages associated with being injured.

Some people will argue that UM/UIM insurance is too expensive for such a remote possibility of being used.  But, I would disagree.  I have seen too many clients come to my office and tell me about an auto accident they were involved in where there was no insurance or not nearly enough insurance available to cover their medical bills to agree that this coverage would be rarely used.  In fact, on the occasions where my clients had UM/UIM coverage available and we did use it, they were all extremely grateful they had it.  Without question, I believe every driver that has automobile insurance, even if they have health insurance or other insurance available, should have UM/UIM coverage to help protect them and their loved ones.