Recent Changes To Insurance Subrogation Rights

September 3rd, 2014

By Daniel P. Sullivan, Esq.

Commonly, when an insurer pays a loss under a policy, the insurer acquires the right to be “subrogated” to any cause of action the insured may have against a third person whose act caused the loss. In such circumstances, the insurance company will be entitled to recover the monies expended on behalf of its insured out of the proceeds of any settlement or judgment against such third-party. This right of reimbursement sometimes gave rise to hardships in circumstances where the amounts recovered from a tortfeasor were far outshadowed by the amounts expended by the injured party’s insurer.

However, effective January 1, 2014, non-ERISA, non-self-funded health insurance plans seeking reimbursement from third-party recoveries are now limited by statute in the amounts they may recover from their insureds. Where, for example, an insured is represented by an attorney, the insurer will be limited in its recovery to the lesser of:

  1. one-half of the covered individual’s gross recovery less attorney’s fees and procurement costs as provided by Section 140.007; or
  2. the total cost of benefits paid, provided, or assumed by the payor as a direct result of the tortious conduct of the third party less attorney’s fees and procurement costs as provided by Section 140.007.

TEX. CIV. PRAC. & REM. CODE § 140.005(c).1 Thus, this new provision of the Code puts a cap on a health plan’s claim for reimbursement when the recovery is insufficient to make the plaintiff whole and also requires a health plan to reduce its claim for reimbursement by the amount of attorneys’ fees and procurements costs.

1 Similar limitations are placed on recoveries from insureds who are not represented by counsel (See TEX. CIV. PRAC. & REM. CODE § 140.005(b)). In addition, it should be noted that the nature of the limitation differs slightly if the insurer was required to hire an attorney and assert a right to reimbursement in a Court proceeding. See generally TEX. CIV. PRAC. & REM. CODE § 140.007.

New Start

September 3rd, 2014

By Texas Bankruptcy Attorney, Jim Ince

With the beginning of a new school year and a new football season there is reason for hope. The slate is clean and I can move forward into this new season of life with renewed energy and focus. No tests have been failed and no games have been lost. What’s more is that the mistakes I’ve made in the past don’t have to be repeated. While this sounds like theology or therapy, it actually fits one of the key characteristics of bankruptcy; the chance for a fresh start. This is so fundamental to the concept of bankruptcy that it has been the stated reason for filing since the beginning.

If you remember the movie “Groundhog Day” you’ll understand the advantage of a fresh start. While the lead character is initially confused and frustrated by each day repeating the day before, he eventually realizes that it presents him with a wonderful opportunity. He gets a mulligan or a “do over” and by making different choices he can get a fresh start. In Bill Murray’s case it is winning the girl. In your case it may be the chance for a fresh financial start without any failed tests or losses on your record.

Qualifications for an H-2B visa

August 18th, 2014

Immigrant commuting on trainTo qualify for an H-2B visa nonimmigrant classification a number of requirements must be met. These include:

  1. There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
  2. The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  3. Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a(n):
    • Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or
    • An employment situation that is otherwise permanent but a temporary event of short duration has created the need for a temporary worker; or
    • Seasonal need-a petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is: traditionally tied to a season of the year by an event or pattern; and of a recurring nature; or
    • Peakload need- A petitioner claiming a peakload need must show that it: regularly employs permanent workers to perform the services or labor at the place of employment; needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and the temporary additions to staff will not become part of the employer’s regular operation; or
    • Intermittent need- A petitioner claiming an intermittent need must show that it: has not employed permanent or full-time workers to perform the services or labor; and occasionally or intermittently needs temporary workers to perform services or labor for short periods.

An H-2B is subject to a cap. 66,000 are allowed each year, 33,000 for the first half and 33,000 for the second half. An H-2B is also limited to people who are citizens of certain countries. You are allowed to stay a maximum of 3 years under an H-2B in 1 year increments. Please contact us if you have a potential H-2B case.

U Visas (aka U non-immigrant status)

July 15th, 2014

By Texas Immigration Attorney, Michael Spychalski

The U non-immigrant status (u visa) is a visa set aside for victims of crimes who have suffered substantial mental or physical abuse and are willing to assist law enforcement and government officials in the investigation or prosecution of the criminal activity. This visa was created in October 2000. Congress created this visa to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes while, at the same time, offer protection to victims of these crimes.

There are requirements to obtain a U non-immigrant status. The individual must: (1) have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity. (2) Have information concerning that criminal activity. (3) Have been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime. (4) The criminal activity violated U.S. laws. There is an extensive list of what criminal activity qualifies. Please check with an immigration attorney to make sure the alleged criminal activity fits the definition.

There is no immigration fee for a U non-immigrant status. One must obtain a certification from a certifying agency to obtain a U nonimmigrant status. A certifying agency is defined as Federal, state or local law enforcement agencies, prosecutors, judges or other authority that investigates or prosecutes criminal activity. The U nonimmigrant status cannot exceed 4 years. However, extensions are available if the foreign national’s presence in the United States is required to assist in the investigation or prosecution. A U visa can also be obtained outside the United States. There is a cap on the number of U visas that can be granted in one year. That number is 10,000. Family members can also be petitioned for. If the person is under 21 years old, a spouse, children, and parents can be petitioned for. If over 21 years old, a spouse and children can be petitioned. It is possible for permanent residency for under a U status. You must have been present in the United States for 3 years under that status. Family members can also benefit.

A U visa is often not utilized. Come and see an Immigration Attorney if you think you might qualify for this status.

Call us at 800-208-3104 to schedule a free consultation with me!


July 9th, 2014

By Texas Family Law Attorney, Ron Hendricks


My Marine Drill Instructor screamed into my young ear, “Lad, if da  f***in’ Navy had wanted youse  to have a wife, da  f***in’ Navy woulda issued you one with your sea bag!!!!!  But, like so many young, green, and homesick officer candidates, I didn’t listen, and I got my own wife to begin my naval career.  And she never fit into my sea bag.


I know from personal experience that our military personnel live very rigid and structured lives. I also know from personal experience that the pay scale for the military, especially the enlisted personnel and newly commissioned officers, is extremely low and the financial stress on the family can be deadly.  Add to that stress the constant training, temporary assignments away from home followed by long deployments in combat zones or other dangerous areas, military life is not conducive to a “Leave It to Beaver” family life style.


Divorce in the military is just as traumatic and emotional as it is in the civilian world.  Child support, child custody and access, and division of property issues are still the same with unique

and specific military pay, retirement, dependent rights post divorce entitlements.  We as family law practitioners should be wary of these when we deal with military family law matters.


Here are a few examples of the uniqueness of military family law issues. We don‘t get pay stubs from the service member; we get an LES (Leave and Earnings Statement). That cryptic document will provide you with a great amount of information, mainly base pay, special pay, and allowances information. And there is a difference. Base pay is taxable income as is Flight Pay, Hazardous Duty Pay; whereas an allowance generally is not taxable.


What are some common allowances?  BAH (Basic Housing Allowance), BAS (Basic Allowance, Subsistence), or any pay entry that has the word “Allowance” in it.  Since the Texas Family Code specially indicates that child support is based, in part, on ALL sources of income, there is another step in the child support calculation.  As usual, calculate the net income on the Base Pay then add to it the allowance.  That now is your new net income for child support purposes.


There are many other matters of significance dealing with military personnel and their families.  I hope to be able to discuss them with you in the future.

At the firm of Bailey & Galyen, we are proud to represent our military veterans and their families with whatever legal issue they may face.  Call us at 800-208-3104 to schedule a free consultation.

But I don’t want someone telling me what I can spend!

July 2nd, 2014

By Texas Bankruptcy Attorney, Jim Ince

Many times I have met with people who have great concerns about filing bankruptcy.  They are afraid that the court will tell them how they can or cannot spend money.   Often, people put off filing a bankruptcy for many years because they are afraid of the loss of control.  The irony is that they have already lost control and that is why they come to see a bankruptcy attorney.  The real truth is that crushing debt has already begun limiting what they can and cannot finance and purchase.  Cash flow is crippled because credit card payments take what is left of the family’s disposable income and they are largely paying for items that were purchased years ago and have either been given away or broken.  The real truth is that their standard of living has been declining for some time and it has been completely out of their control.

There are two kinds of bankruptcy.  The bankruptcy most people are familiar with is a Chapter 7.  That type of bankruptcy wipes out the debt with no payment obligation.  There is a second and equally effective type of consumer bankruptcy.  That is a Chapter 13.   This is the bankruptcy people have to file if they are facing a foreclosure or a repossession of a vehicle or if their income is very high.  This requires payments to the court to help catch up on those items a person wants to save.  This is where the fear of being told what they can and cannot do comes in. The person filing must propose a budget that they can live on and still make the payments.

People are concerned that they may have to give up eating out or tithing to the church or giving money to their children.   If they have done those things instead of paying the car payment or the house payment, then yes they may have to give them up.  However, what really happens is that the person filing proposes a budget they can live on while making payments to the bankruptcy court to distribute to their creditors.  As long as the budget will support the payment, the court generally does not concern itself much with how people are spending their money on a day-to-day basis.  Once the payment is arrived at, it usually does not change unless the person filing requests it or there is a major change in life circumstances causing a change.

So, can people continue to live and spend money even though they are in a Chapter 13?  Yes, yes, yes!!  The court understands that there are needs that must be met or the case will fail.  That is why the court allows you to budget  entertainment in your case.  You are certainly allowed to continue to tithe in the case. You can still eat out and can still go on vacation.   What you cannot do is continue to be enslaved by the creditors who have been making your live miserable over the last several years.   Most people can definitely live with that.  The real key is recognizing that there is a problem.  If most of your waking hours are used to attempt to balance your creditors or if your sleeping hours become waking hours because of the stress, it is time to take action.  If you are in debt, come see us.  .  Book an appointment with a skilled Texas bankruptcy attorney.  At Bailey & Galyen, we would like to help you achieve your financial independence without all of the headache.  Call us at 800-208-3104 for a free bankruptcy consultation.



Read It Before You Sign It

June 25th, 2014

By Texas Civil Appellate Attorney Paul W. Wieneskie

Sounds pretty simple, right? Pretty basic. Yet it’s amazing how often this simple rule bites people when they disregard it. Even lawyers can be guilty.


Sure, most folks will take the time to read a contract for an important business transaction like buying or selling real estate or a business, or entering into a partnership (or, better still, will take it to their attorney to read and explain to them). But how about a non-disclosure or non-compete agreement mixed in with the stack of documents signed in connection with a new job? Or the statement from the guy who just serviced your  A/C unit? Or that software license that we all just click past? Or the credit card charge slip at the restaurant?


Under Texas law everyone is presumed to have read and understood any agreement they sign. More important, absent some extraordinary circumstance, you’re stuck with whatever you sign no matter whether you read it or not.  See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 134 (Tex. 2004) (orig. proceeding) (a person is presumed to have read an instrument before signing it, and is charged with knowledge of its contents, absent a showing of fraud).


A few weeks ago I stopped at a local BBQ restaurant to pick up a half pound of ribs and a couple of slices of brisket. I watched the girl ring it up on the machine, and it showed $14 and change. I handed her my credit card, she ran it, handed me the charge slip to sign, and I signed it, grabbed my BBQ and went on my merry way. Imagine my shock weeks later when I received my credit card statement and saw that I had been charged $74 and change. Trying to think back to that occasion, I remembered I had been annoyed with the guy in line in front of me, because he was taking forever getting all sorts of different items to take back with him to East Texas. I also remembered that his bill was in the $70 range.


The next day I called my credit card company to dispute the charge. A few days later they sent a letter advising that they contacted the restaurant, and enclosed a copy of the $74 charge slip with my signature plainly on it.   I don’t know whether it was mistake, or an intentional rip off, but I was stuck. I was in such a hurry to get out get home and eat that I did not pay close attention to the charge slip I signed. As a result, I had some very expensive BBQ.


The moral of the story: always, always read it before you sign it. It doesn’t matter whether it’s a 50-page contract or a simple credit card charge slip. If you don’t, you may be stuck with some painful unexpected consequences. Worse still, even the best of lawyers may not be able to get you out of whatever you got yourself into.

Teach Your Children to “Honor Thy Other Parent”

May 21st, 2014

By Texas Family Law Attorney, Ryan Beason

If you are involved in a divorce case or a case involving child custody, Mother’s day and Father’s day present unique opportunities for either party.

In a family law case, the judge is more likely to award primary conservatorship to the party who demonstrates the better co-parenting skills.

A fundamental concept of our Judeo-Christian society is the Second Commandment. The Second Commandment requires us to “honor thy parents”. Mother’s day and Father’s day present a unique opportunity to demonstrate that you are the better parent at teaching the child to honor thy other parent.
For many parties currently involved in a divorce proceeding, the last thing you want to do is to buy a gift and a card for your divorcing spouse. But that is exactly what you need to do! What you are actually doing is to help the child to buy a gift and a card for the other parent. In this manner, you are demonstrating excellent co-parenting skills by showing that you understand the importance of honoring both parents. You are demonstrating that you will teach the child to honor and cherish the other parent.
For small children it might even be better to share an experience with your child in making a card for the other parent. Very few things that you could do with your child clearly indicate that you are better at co-parenting, than working with your child to make a Father’s Day Card for his or her father. Every parent who has actually done this, I have marked my copy of the card as Exhibit “1”. Every time that has happened, that parent won the custody battle!
The child will remember the experience for years to come. The other parent will keep the card for a long-time. But most importantly, you will be well on your way to demonstrating to the court that you are the better parent in terms of co-parenting skills.

If you are a parent in the midst of separating, divorcing, or needing to modify child custody and support arrangements, give us a call at (800) 208-3104 to schedule a Free Case Evaluation with one of our experienced family law attorneys.

Legal Formalities of Non-Profit Corporations in Texas

May 6th, 2014

By Attorney, Leslie Burgoyne

Many nonprofits do not consider themselves to be businesses. In Texas, a nonprofit is a corporation, similar to any other for-profit corporation registered in Texas.  The main difference is that nonprofits do not make distributions or dividend payments to shareholders, therefore shareholders are usually referred to as “members.” Just like with any other corporation, corporate formalities must be followed to maintain the legal entity.

Annual meetings

The Texas Business Organizations Code requires all corporations to have annual meetings of shareholders, or in the case of a nonprofit corporation, “members.”  These meetings do not have to be formal, and they can be held remotely through video and teleconferencing.  Advance notice must be provided in accordance with the bylaws of the corporation.  Minutes of the meetings have to be taken by the corporate secretary and stored in the corporate records book.


Speaking of bylaws, does your organization have them?  Bylaws are an important governing document for a nonprofit corporation.  They dictate membership requirements, board member eligibility, positions, terms, and elections.  In the absence of bylaws, the default provisions of the Texas Business Organizations Code prevail.  Most business owners would rather customize their own infrastructure instead of relying on standard provisions in the law.

Corporate Records Book

The corporate records book should contain the documents that created the business entity with the Secretary of the State of the State of Texas as well as all minutes of Meetings.  The corporate records book has to be stored in the “Principal Office” of the business and must be made available to any member of the public who requests to view it.

Minutes of Meetings

The corporate secretary takes minutes of meetings. Minutes do not have to be long and detailed.  They are simply a record of the important decisions that were made at any particular meeting.  Minutes must be signed by the secretary and must contain a verification that the secretary gave proper advance notice of the meeting to the membership (if a member meeting)  or the board members (if a board meeting). The notice requirement can be waived if all members are present at a particular meeting and consent in writing to the waiver of notice.

There are several formalities that must be followed in order for your nonprofit to continue to exist in the State of Texas. Failure to follow these formalities could result in “piercing the corporate veil” – or having individual owners or members be held personally liable for debts of the business.  If you need any help with the corporate formalities of your nonprofit, please give Bailey & Galyen a call at (800) 208-3104.







Check Your Car!

March 3rd, 2014

By Cody Jordan

How often do you do a quick check of your car? Check the break lights. Check the turn signal.  Check the parking lights. Check the inspection and registration stickers.  So on and so forth.

It might seem like a hassle, but it’s also what can very well stand in the way between a lot of stress, a lot of money and maybe even being jailed and simply not having to deal with those issues.

Let me explain.  Perhaps you are taking a chance driving with an expired or invalid license out of necessity; you shouldn’t be driving, but you feel you have to for some reason.  Perhaps there is an unknown warrant for failure to pay a ticket or something like that.  Perhaps you have accidentally let your insurance expire or lapse.  None of these examples would ordinarily raise suspicion if you are on the roads, but alas you forgot to check your car.

Now, the authorities notice a missing tail light or an expired inspection sticker.  They have every reason to pull you over; they run your information and now you are in a whole lot more trouble and will end up paying a whole lot more money than it would have cost to simply get your car inspected or change that tail light.  Save yourself the time, money and stress; perform a periodic check of your vehicle.