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Leonard B. Gabbay
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Leonard Gabbay’s Answers

12 total


  • Dog bit someone how do we protect ourselves?

    Sitting in the yard w/my kids, sitting toward the sidewalk as to watch them, our van parked in driveway. Man came running up sidewalk behind the van and scared me which scared the dog. Dog charged him and did bite him. He was on leash but since I ...

    Leonard’s Answer

    As I prepare for a three day jury trial next week on a dog bite case, I can offer you the following:

    Your willingness to accept responsibility is probably one of the best ways to "help protect yourself." That's what a responsible dog owner must do when their dog bites someone else. Also, as a responsible dog owner, you did have your dog on a leash. You are required to maintain control of your dog which is required to protect others as well as meant to protect your dog. The fact that the person bit may ultimately be found to have provoked the bite -- (that really is a fact issue that has to be determined from the circumstances - i.e. did the guy jump out at the bushes or was he just jogging down the sidewalk). Provide all of the details to your homeowner liability carrier.

    Let your homeowner insurance carrier know everything that happened. You can even send them photos of the area of your property that the bite took place. Tell them that you feel the person who was bitten should be fully compensated for the harm caused and that you do not want the carrier to play games with the victim and that you want the carrier to try to resolve the claim in good faith.

    So, honesty and accepting whatever responsibility that you have is the best way to get this matter resolved with the least amount of trouble for you.

    As far as the dog is concerned, you can enroll in lessons for this new addition to your family. Animal control may require that you maintain a liability policy for the dog because of this incident. And you should talk to them about what type of factual situation (i.e. provocation by the victim) would allow your dog to not have to be put down as sometimes that is unfortunately the result of a dog attack.

    I would also do your best to contact the victim to find out how he is doing. To care and repair is human. To not care is inhumane. I wish you the best and I applaud your willingness to accept whatever responsibility that you may have in this incident.

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  • Independent medical exam: should i go?

    i was in a car accident in June, 2012: A 18-wheeler truck hit me in the left-rear-side of the driver door causing whip lash and muscle spasm. I have bee in therapy for almost 13 weeks and now i feel fully recovered.( Thank God!) Now my insurance c...

    Leonard’s Answer

    First of all, after being in an 18 wheeler wreck, I wonder if you are better physically, but not better mentally because these wrecks can have a lasting effect on a person's ability to drive on the highways where truckers are normally found. If you are having these issues, I would recommend talking to your doctor about what to do about it because the last thing you want to do is be on the road and have a reaction to an 18 wheeler bombing down the highway and then you become a danger to others because of this past experience.

    That being said, It is "normal" for an insurance defense lawyer to ask for a medical exam. They try to call them Independent Medical Exams (IMEs). We call them Defense Medical Exams (DMEs). The doctor doing the exam may ask questions about the wreck and may try to interrogate the subject of the exam. We have been successful in having our judges allow another person in the room (and sometimes we are allowed to videotape the exam). This prevents the ins. company doctors from being anything but polite during the exam. When we have been allowed to have a video camera at the examination, the doctors tend to move very quickly through the exam and some refuse to even do the exam (to their own detriment).

    If a Plaintiff refuses to undergo the DME, then a judge can order the plaintiff undergo the DME. I always require an order from the judge so that I can insure that there are protections for my client written into the order.

    Finally, remember that the examining doctor is not your doctor, and you are not a patient. There is no doctor-patient relationship between you and the ins. co. professional testifier - or what the carriers like to call "independent medical examiners" - ha. Talk to a lawyer who knows what he's doing before you agree to anything or before you discuss anything else with the insurance carrier.

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  • My husband was struck and killed by a car while walking down the road, what are my rights?

    It was at night, the driver said he didn't see him until it was too late, The driver had no liability ins.

    Leonard’s Answer

    First, I am so sorry to hear of your loss. You should contact an experienced personal injury attorney immediately. Even if the other driver did not have liability insurance, your attorney can check to see if the owner of the car is different from the driver of the car. There may be a policy for one of them. In addition, any policy that you or your husband have for your own vehicle may contain uninsured motorist coverage and (in Texas where I practice) even if someone is a pedestrian, the uninsured motorist coverage will cover his loss. Now, the facts that 1) it was night time and 2) your husband was a pedestrian and 3) the other driver said he didn't see him do not excuse hitting someone when you are driving a car. Ask your attorney if he or she thinks that the other driver was overdriving his headlights (i.e. driving too fast for what the driver could reasonably see in front of him. I wish you the best in your recovery and our condolences to you and your family.

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  • My lawyer has sent a demand letter to the insurance company of the person who totaled my car and caused me damages.

    The letter states that they need to contact the attorney by August 28th. There has been no response so what happens now that there is not a response to the demand letter?

    Leonard’s Answer

    A few different things can happen: 1) your attorney can contact the ins. carrier and find out why they did not respond; 2) your attorney may have sent what is known in Texas as a Stowers demand. A stowers demand is a demand letter that is sent to the other driver's carrier and gives the carrier enough information about the damages in the case and enough information about the other driver's liability in the case so that a reasonable insurer would settle the case in the time allotted by the demand letter (usually more than 2 weeks, but 3-4 weeks is typical). If the insurance carrier rejects the demand or offers less than the amount of the demand, then your attorney can file suit against the other driver. Now, if the jury comes back with a verdict that is higher than the amount of the limits of the other driver's liability insurance, then the insurance company is in a ton of trouble with their insured. It goes something like this: Other Driver: "Hey, that Plaintiff just got a huge judgment against me." Ins. Co: "Yes, but we're only going to pay your $50,000 policy limits to the Plaintiff." Other driver: "But the verdict was for $175,000!" Ins. Co" "That's your problem, sorry!" Other driver: " Well, that other lawyer sent a demand letter offering to settle this case for an amount that did not exceed my policy limits and you rejected that offer! You just let me hang out there to dry!" Ins. Co.: "Yup." The law now gives the defendant a claim for bad faith against his ins. co. and the def in turn assigns that claim to you. In short, the ins co messed up big time and can be held liable for the excess judgment (ie the full $175,000).

    Talk to your lawyer about how to proceed as the carrier has passed the time for the offer.

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  • I signed an agreement with a personal injury attorney. Do I have to go to their doctors?

    I signed an agreement with a personal injury law firm & learned that I had to go to their doctor who is a chricpractor. I have an orthopedists and I am uncomfortable with chricpractors. My attorney wants me to go to the chricpractor for treatment ...

    Leonard’s Answer

    Whether or not you can "get out of" the contract with this firm is a matter of what the contract says about canceling it (or rescinding it). You should also make sure that if you cancel the contract, the attorney or firm cannot maintain a financial interest in your case - even if they are no longer your attorneys.

    Now, who you go for your medical treatment is entirely up to you. You decide who will treat you and who you are comfortable with treating you for your injuries. Many times the opposing insurance company and later on their lawyers (if a lawsuit is necessary) will try to use the fact that you went to your lawyer's doctor as a way of inferring that the lawyer and the doctor are "in cahoots" with each other (sorry, I practice in Texas!). This can be harmful to your case.

    Bottom line - you decide who your doctors are, not your lawyer.

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  • I am 12 with a question. i hope kids can answer.

    i was hit by a car a few months ago. my mom had to take off work with me for 3 weeks to take care of me. my dad is not apart of my life, and my mom have 2 other kids as well as me. she got an attorney, and my mom was told that we may not be able...

    Leonard’s Answer

    Normally in my jurisdiction (Texas) when the attorney resolves your case, the Court will have to approve the settlement if a minor is involved (i.e. less than 18 yrs of age). The Court will appoint an attorney ad litem (normally paid for by the insurance company of the at fault driver) which is basically an attorney whose only client is the minor child. He or she has only the "best interest of the minor" as his/her goal. The attorney ad litem will report to the Court whether or not he thinks the settlement is "in the best interest of the minor." The attorney that your mother hired and the attorney ad litem can discuss whether or not it is "in your best interest" for the court to approve some of the insurance funds going to your mother to make up for her lost income when she was at home with you. In addition, like the attorney who answered the question above said, your mother could have a claim for her lost earnings due to your injuries. I wish you and your family all the best in this very trying time for you.

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  • RE: How to settled a case? I was stroke by a reckless driver the back of my car. I have injuries and car damages.

    I was waiting at the red traffic light. Suddenly a reckless driver stroke very hard the back of my new car. The police arrived, the other driver, said 1st a version, then change to a different 2nd version. The officer told me that she had given ...

    Leonard’s Answer

    Often times an investigating officer will have field notes and may have other witness names that do not get put on the official report. You can ask your attorney to make an Open Records Request (sometimes called a Freedom of Information Act Request) to the investigating agency. If there are officer field notes, videotape from the officer's vehicle, witness names, etc. then they should send them in response to the request. I like to request the recorded 911 call where sometimes I find witnesses who actually saw the collision and called it in, but did not wait around for the police to come. These pieces of information are sometimes invaluable in trying to determine from unbiased sources how the collision actually happened.

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  • I was involved in a car accident. I was cut off by a truck going down the freeway I missed hitting him and was hit from behind

    I had to lock up my brakes to keep from hitting the truck that cut me off and swerve to keep from hitting him. I was hit from the back rear of my pastors car. I do not my lic. is suspended I was given a ticket for faulty memovering

    Leonard’s Answer

    If you were driving your pastor's car, then your pastor should contact his insurance carrier and report the collision. If the pastor lent you the car, then you would be insured under his insurance. Based on the facts that you have stated (i.e. a truck cut you off and you had to slam on the brakes), then you may have a valid excuse to being legally responsible for any damages should the driver behind you submit a claim for damages against you (the law calls this excuse a "sudden emergency"). This should be discussed with the pastor's insurance carrier. If the driver behind you also saw the truck cutting you off, then that is a very important fact that must be documented - again, the pastor's insurance carrier should investigate this.

    In addition, if there was contact between the truck that cut you off and the car you were driving, then you could make a claim on the UM/UIM portion of the pastor's insurance. There must have been contact between the two cars though.

    Now, you MAY have a claim against the driver that rear-ended you if that driver was not paying attention to the changing conditions on the roadway. Negligence in Texas basically means that one does or does not do what a reasonably prudent person in the same or similar circumstances would (or would not) do. So the answer is ultimately fact dependent.

    Therefore, it's probably a good idea to contact an attorney to discuss you case, your injuries, and the process that you should follow. If you are injured, you should really get the medical attention that you need to help insure that you get well with no residual problems.

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  • In Texas if I sue the at fault driver of an accident can I still get the offer from the at fault's insurance driver?

    I was rearended in an accident. I have $27,000 in medical bills from the accident and still have back and neck pain due to bulging discs caused by the accident. My attorney told me that if I sue the at fault driver then I can't collect the money t...

    Leonard’s Answer

    Generally, any time an insurance carrier (the "at fault carrier") makes a payment to a claimant (you) they will require that the claimant execute a full release of all claims arising from the incident. Once you release the the insured, that release resolves ALL claims that you have against the other driver. There are other scenarios, however, that may result in additional coverage.

    1) If the other driver was driving someone else's vehicle, then there may be another liability policy that will address your damages.
    2) Also, if you have underinsured motorist coverage with your own auto policy, then you can collect the liability limits of the other driver's policy (in Texas the minimum is at least $30,000 per person/$60,000 per incident). Be careful though, because if you are going to collect the liability limits AND make a claim for underinsured motorist coverage (UIM) then you MUST get written permission from your own carrier before you release the other driver and take his/her policy limits.

    Finally, if the at fault driver has non-exempt assets (for example, rental property, boats, etc.) then you conceivably could sue the at fault driver and collect the judgment from the liability insurance (up to the limits) and then collect the rest from the at fault driver's non-exempt assets. This is rarely done, and you should have a long talk with your attorney before pursuing this avenue. Sometimes it is quite feasible, but most of the time, the at fault driver has little in terms of non-exempt assets and the efforts and expense of pursuing them is greater than the results obtained.

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  • Medical Exam in Auto Accident Injury Case?

    The case is going to go to arbitration, the deposition has been taken. Now the insurance co defense attorney wants to make the claimant(injured party) to undergo a 3 hour medical examination by a doctor that the insurance company hired. 1) Is ...

    Leonard’s Answer

    • Selected as best answer

    It is "normal" for an insurance defense lawyer to ask for a medical exam. They try to call them Independent Medical Exams (IMEs). We call them Defense Medical Exams (DMEs). The doctor doing the exam may ask questions about the wreck and may try to interrogate the subject of the exam. We have been successful in having our judges allow another person in the room (and sometimes we are allowed to videotape the exam). This prevents the ins. company doctors from being anything but polite during the exam. When we have been allowed to have a video camera at the examination, the doctors tend to move very quickly through the exam and some refuse to even do the exam (to their own detriment).

    If a Plaintiff refuses to undergo the DME, then a judge can order the plaintiff undergo the DME. I always require an order from the judge so that I can insure that there are protections for my client written into the order.

    Finally, remember that the examining doctor is not your doctor, and you are not a patient. There is no doctor-patient relationship between you and the ins. co. professional testifier - or what the carriers like to call "independent medical examiners" - ha.

    See question