Skip to main content
Thomas Allen Herald

Thomas Herald’s Answers

15 total


  • Do I need an attorney for a settlement with my insurance company?

    I was involved in an auto accident that was not my fault. The at fault driver fled on foot. It was determined that his vehicle did not have insurance. I had to make the claim on my insurance. I have 3 moderate herniated disks, c4, c5 and c6. I was...

    Thomas’s Answer

    I would defintely recommend you hire an attorney. Your case is an Uninsured Motorist Claim. Because your rights to recover benefits stem from your insurance policy and the laws interpreting those policies and obligations your insurance company owes you, unless you are extremely familiar with the details of the policy and the law, the insurance company may take advantage of you and not treat you fairly.

    Considering the severity of the injuries you referenced in your question, I would strongly recommend seeking legal counsel. I frequently speak on the topic of recent developments in Texas on Uninsured/Underinsured Motorist cases and I can tell you that more than ever before, we are see insurance companies develop strategies to delay the resolution of your case and to under-pay claims, especially since the Texas Supreme Cort's decisions in Brainard v. Trinity Universal Ins. Co. in 2006.

    Feel free to contact me for a free, no obligation case review.
    Tom Herald, Montes Herald Law Group, LLP, 1121 Kinwest Parkway, Suite 100, Irving, Tx 75063. (214) 522-9401.

    See question 
  • 18 Wheeler hit independent contractor's cargo van

    18 Wheeler hit my husbands cargo van, Police was called to the scene and ruled in my husbands favor (police report). Since he is a self contractor courier and uses his cargo van to make his income should we get a lawyer involved to make sure the i...

    Thomas’s Answer

    Hopefully the insurance company has resolved your issue by now. If they have not done so, you need to understand that the usual rule is that property damages to a vehicle will not usually entitle a person to recover damages for lost wages as you would be expected to mitigate your damages and rent another comparable vehicle to prevent the loss of income. However, there are exceptions to the rule such as the circumstance where the damaged vehicle has unique characteristics such that it is not possible to rent a comparable. I would still expect most insurance companies to fight that issue very hard, and in the end, you will need proof of those damages in the form of "net" loss (losses after tax liabilities) as opposed to gross damages.

    If the amount does not exceed $10,000.00, you have the right to file a lawsuit yourself in Small Claims Court that usually is a fast and inexpensive process where the technical rules of civil procedure and evidence do not apply so that ordinary citizens can quickly obtain resolution of smaller disputes.

    See question 
  • Do I have a claim against Public Storage, Willis Insurance, and TxDot?

    I have a storage unit at a Public Storage facility in South East Houston. In April of this year there was a very large and powerful thunderstorm that caused flooding to our units. I made a claim with the insurance but the denied the claim stati...

    Thomas’s Answer

    There are several different options that you should explore:
    1. Your homeowners or renters insurance may have coverage. However, many policies will exclude flood damage if the source of the flood is simply rising waters, as opposed to water from a pipe burst.
    2. As you tried, you can see if the storage facility has coverage, however, it is unlikely that such coverage will exist. You will probably even see a reference to that in your contract.
    3. You can pursue a claim against TxDot since the incident probably involved the use or non-use of motorized equipment based upon your description. You need to make sure that you comply with all of the written notice of claim requirements if you intend to pursue that claim because failure to do so will forever bar your claim even if you file a lawsuit within the statute of limitations. Because of the notice requirements, I would strongly recommend that you consult a local attorney to make sure that your notice letter is (1) delivered in a timely fashion; (2) sufficiently detailed; and (3) delivered to the proper entity. All 3 of these issues must be done properly or you will not be able to even pursue a claim against TxDot.
    4. In addition, there may be other contractors and subcontractors that were working with TxDot on the project that may have some responsibility for the project.

    See question 
  • Will auto insurance cover me if I have an accident if it's within 60 days of license expiration?

    I just moved back to Tx. My CA license exp. 40 days ago & I had a fender bender before renewing my TX license. Will my insurance cover me during that period?

    Thomas’s Answer

    The short answer is yes.
    Your insurance policy covers you even if your license expires. Contact your insurance agent and report the loss. They will handle it from there. They probably will not even ask if your license had expired.

    However, you need to get your license renewed with your current address. You have 30 days to do so. After that, it is a Class C misdemeanor if you get pulled over and the officer wants to be tough with you.

    See question 
  • If I was misdiagnosed at a hospital, and suffered further injury from it, what should I do?

    I have no med ins. I was sick off and on for about 2 years...mostly on. I went to the same hospital each time, with the exact same symtoms as normal. I was always released with a stomach virus...or food poisining. No tests would be run. It tu...

    Thomas’s Answer

    If you believe that your medical providers misdiagnosed you, you need to contact an attorney that handles medical malpractice claims. You need to do it as soon as possible as there is a 2 year statute of limitations for claims such as this. Plus, if the hospital or doctors fall under the Texas Tort Claims Act, you are required to give timely written notice of your claims as well. I would call a local attorney today and discuss your case briefly with them to make sure your time deadlines do not run. In the meantime, if you desire to pursue your case, it is a huge help if you gather your medical records from all of your medical providers as these cases are extremely complicated, and will require you to retain an attorney who will then have to retain medical experts to evaluate your case.

    See question 
  • My kids were in an auto accident. My husband (we are separated) is trying to recover theire damages. Can he do this?

    The oldest child is not biologically his and I have a court order stating that I'm his custodial parent, but the younger child is his. I have documents from the Attorney general that state that I'm her custodial parent as well, but no court order...

    Thomas’s Answer

    Your husband has the right as the natural parent to initiate legal action for the child which is his unless and until a court takes away that right regardless of whether the two or you were married or how long you lived together. The important thing is to make sure that the rights of your children are protected by pursuing the case in a timely manner.

    In the event that you are concerned that your husband will try to take the money from whatever settlement may be forthcoming, often times that situation is prevented because the insurance company may require that a "friendly lawsuit" be filed. The purpose of the "friendly lawsuit" is to get a court of law to approve the settlement agreement since a minor does not have the legal capacity to enter into a binding settlement agreement. When this process is initiated, the Courts will typically require the funds are to be invested for the exclusive benefit of the minor, and those funds will not be available to anyone, even the minor until the minor reaches the age of 18.

    The more seriously injured the minor child is, and the larger the amount of the settlement, the more likely this procedure will be required. However, because of the costs associated with this process can be significant, and because those costs are typically paid by the insurance company, insurance companies make a business decision on whether or not to go through the process of requiring a friendly suit.

    If this is your concern, contact an attorney or the insurance company and request that if the case is settled, that they require a friendly suit to protect the funds so that your child will be the one to receive the funds for the settlement.

    See question 
  • Are Toxicology reports included in Accident reports in Texas?

    I am attempting to obtain a toxicology report for an individual in an auto accident in Texas. Are toxicology reports included in the auto accident report and included in an open records request? If not where/how would it be located?

    Thomas’s Answer

    No, they are not included with a typical Texas Crash Report. However, if you believe that the driver that struck you was intoxicated, you should make a detailed Open Records Request with the police department handling the offense requesting copies of various items that address the issue of intoxication. These items can include things such as video and audio recordings of the person, SFST results (Standard Field Sobriety Test), breathalyzer results, toxicology reports, confessions, and statements. Unfortunately, many times the police department will not release this information because they can claim an investigation privilege while the police are pursuing criminal prosecution. However, if you are the victim, and the District Attorney is pursuing the case, usually, the District Attorney will allow you to view the information. However, sometimes the toxicology reports are obtained through a hospital facility as opposed to a nurse at the police crime lab. In those cases, it is very difficult to get a copy of the toxicology report without filing a lawsuit and serving a valid subpoena on the medical facility since the hospital or other medical facility has a legal duty under HIPAA to protect confidential medical information such as a toxicology report.

    See question 
  • Was hit by another driver that driver is at fault for the accident called her insurance adjuster and am being ignored

    what am I to do left messages and have not heard back this situation really has me stressed out all though damages are minor would still like to get paid for the damages especially when that driver is at fault dont they have a time limit to respon...

    Thomas’s Answer

    You are not alone. First you have to understand that ignoring you and your claim is sometimes part of the business model that the insurance companies have developed to save them money. Just google the phrase, "Delay, Deny, Defend" and you will see tones of examples of how insurance companies have delliberately developed this approach to frustrate people who have valid claims into giving up or accepting less than they deserve.

    I would encourage you to contact an attorney. Most attorneys take cases like yours on a contingent fee basis where the attorney is only paid if and when there is a recovery obtained for the client. Typically, the fees range from 33% if the case settles prior to filing a lawsuit, and 40-45% once a lawsuit is filed. In addition, the attorney is entitled to be reimbursed his or her expenses. This is good news for you as you do not have to pay money up front to hire an attorney to take this matter off of your plate. I would recommend you contact an attorney and discuss the matter with him or her and see what they think about your case. You will probably be surprised how helpful many attorneys will be even they decline to accept your case.

    Otherwise, if your case is small (less than $10,000 in total damages, you can consider filing a lawsuit yourself in Small Claims Court. The rules of procedure and evidence do not apply to these proceedings, and most of the time, the parties are not represented by an attorney. However, if you sue someone who is insured, the insurance company will normally defend the person you are suing. That might concern you, but I have seen a lot of people who are not represented by an attorney in small claims court do remarkably well against an attorney because the process is simple and is designed to just get to the truth of the matter in a short period of time.

    See question 
  • In July an HVAC company sold home owner AC/heater units with no heater. Customer discovered in Nov. missing heater. BBB

    Our home's AC went out in July, 2009. Here in south TX we tried to use the heater for the first time the week of thanksgiving. The heat never came on, a service rep for said company came and informed us our 'indoor unit' had no 'heating element'...

    Thomas’s Answer

    If your efforts to resolve this dispute through the Better Business Bureau have been unsuccessful, it appears that you are down to two options:
    1. You can contact a local attorney who focuses on handling consumer law cases. Your case would involve claims of Breach of Contract; Breaches of Warrant; and Violations of the Texas Deceptive Trade Practice & Consumer Protection Act (DTPA) The good news for you is that each of these claims entitles you recover attorney's fees if you prevail. Plus, most reputable businesses would probably have resolved your complaint without such action, but when communication problems arise, the threat of a well written demand letter from an attorney referencing false, misleading and deceptive trade practices under the DTPA, you should definitely get their attention. If the demand letter from an attorney does not resolve the situation, your attorney can file a lawsuit.
    2. You have the right to file a lawsuit and to pursue the matter without hiring an attorney, however, you lose the advantage and leverage of forcing the business to pay attorney's fees in addition to your damages if you chose this option, and sometimes the threat of paying those attorney's fees is enough to get the case resolved appropriately. As long as your damages do not exceed $10,000.00, you can file the case yourself in a local Small Claims Court where the technical rules of civil procedure and evidence do not apply. Basically, you go to the Court, complete a form which identifies who you want to sue, why you are suing them, and for how much you are suing. The cost is relatively low, and these Courts usually work very fast in getting their cases resolved by settlement or by trial. However, if you decide to sue, it is wise to provide a 60 day notice letter which provides a detailed explanation of your claims and your damages before you file the lawsuit so that your claims are in compliance with the notice requirements for the DTPA and for claims involving breach of contract and warranties in the event you later decide to retain an attorney.

    See question 
  • Do I need a second opinion regarding a personal injury law suit?

    I was the victim of an auto/pedestrian incident which altered my life completely. 14 mos later my atty informs me that the ins co will only pay the maximum amount of liability of $25,000. That is before his fee and the medical bills already excee...

    Thomas’s Answer

    You need to discuss your concerns with your attorney, and not with a legal assistant. Sadly, there are many cases where the person who causes a wreck, the "tortfeasor," either has no insurance or insufficient insurance and assetts to cover the injured person's damages. In those situations, we look to see if there are other sources of recovery for the client. We investigate whether the tortfeasor was in the course and scope of his or her employment and may have additional insurance or resoulrces available to compensate the client. We investigate whether the tortfeasor was intoxicated that would enable us to pursue a dram shop claim against the commercial provider of alcohol. We also look to see if the client has their own insurance coverage (Uninsured/Underinsured Motorist Coverage, Personal Injury Protection benefits or Med Pay coverage) on their own auto insurance policy.

    Unfortunately, most of the time, if there is no insurance or insufficient insurance coverage, a person such as yourself can sustain life altering injuries and not be adequately compensated.

    See question