93.1. Kiss FM – Ask A Lawyer – Part 2 – January 2022

Carol: You’re listening to “My Contrition Morning” on 93.1 KISS FM.

Man: It’s our monthly segment. We call it “Ask a Lawyer with Michael Gopin“. In fact, if there’s, like, a legal issue that you would like him to weigh in on, there is a spot on kisselpaso.com, where you can click on it, look for it in the Must Read bar, and you can send over your question. Or if you have our app, you can smartphone over your question for Michael Gopin. And we’ll put it in front of him the next time we have him in-house, which will be in February. These are some of the questions that came in prior to his visit today.

Carol: Okay. This one’s from Estefania. She says, “In a four-car pileup on the freeway, I was the second car involved in the crash. One car rear-ended another and so on, I was rear-ended into the person in front of me. And now that person is coming after my insurance for the accident. Is this how this works? I would have never hit that person if it wasn’t for the other car running into me. Any information would be greatly appreciated, Mr. Gopin.”

Michael: Well, these are always tough, the multi-car accidents, rear-end after rear-end after rear-end. We know for sure the lead car is always…

Man: It’s like, I am sorry, that movie, “The Human Caterpillar.”

Carol: No. It’s not.

Man: It’s like a vehicle caterpillar.

Carol: Okay. Sorry. You’re dealing with Beavis and Butthead.

Michael: I tell you. But anyway, the lead car is always in good shape, in terms of liability. We know that the lead car didn’t cause this accident. But all the cars behind them may have contributed to the accident. So, we don’t know which really occurred first. You’ll have different stories from all these different cars.

Carol: The chicken, the egg…

Michael: Yeah, exactly. So, is it the fourth car’s fault in this case which caused a chain reaction? Or was everybody following too close, which caused the problem? The lead car is definitely gonna go after, probably, everybody in line to look at their insurance to see, you know, who’s gonna be willing to pay, who’s not willing to pay?

So, this is kind of how it works. The question, usually is, was there more than one impact? Sometimes you could feel two impacts. And so, you know, that maybe the back car didn’t start this, maybe it was another accident. So, all those things come into play. Let your insurance company handle it. I hope you weren’t injured. If you were injured, then, of course, the third and the fourth car are the ones that you’ll be looking at.

Carol: Ah. Okay. Okay.

Man: Mess.

Carol: What a mess?

Man: It does look like it, right?

Michael: Those can be tricky facts situations.

Carol: And see, this is why I hate driving on the freeway because I’m…and, you know what, I just don’t like it. So, I will go on Mesa, or Montana. And I’ll go from one end of town to the other on Montana because I hate the freeway. And for that reason… Because people just drive too crazy here. I’m sorry, but they totally do.

Man: Well, they don’t drive much less crazy on side streets either, Carol.

Carol: No. I mean, I don’t know. I know you can get into an accident there too. But I don’t know, I just feel like I’m so much less likely to get, you know, run into on Montana.

Michael: Well, you’ll also be going slower than when you are on a lower freeway. So it’s…

Carol: Slower, yeah. There you go. Jackson…

Man: I don’t know. You’ve never driven with her, have you?

Michael: That’s true.

Man: The only place that she drives slow is over the spaghetti bar because she’s so deathly scared of it.

Carol: I hate the spaghetti bar.

Man: I think I still have the marks for holding on to me saying, “Shut up stupid.”

Carol: Well, he was talking and making fun of me. And I’m like, “I’m driving. You should probably shut up.”

Man: Yeah. Yeah.

Carol: I don’t like heights.

Man: So, don’t assume that she drives slower on the side streets. Okay?

Michael: She’s on the spaghetti bar.

Man: Yeah, yeah. I mean, the only thing really that stops her from going too fast are the constant lights.

Carol: Yeah, shut up.

Michael: She stops for them, right?

Carol: I know, right? There you go. Jackson says, “I fell off the roof during a shift of mine installing solar panels for a company here in town. Initially, they were offering to pay for my medical bills. But after I missed two weeks of work, I was, like, go for my job and my workers’ comp was voided from what they’re telling me. What can I do about this?”

Michael: Well, that depends if the company has Texas Workers’ Comp or not. If they have official Texas Workers’ Comp, you just need to file your claim with the Texas Workers’ Comp Commission, and file your claim and send them your bills and everything will be covered under workers comp. If they’re a non subscriber to the Act, that’s when it becomes a little tricky, you’ll have a direct action against the employer. You’ll have to be able to prove that the employer was at least 1% negligent in this case. So, they had to have done something wrong or negligent that caused you to fall off the roof. So, that’s what you have to think about, what they did to contribute to this accident.

Carol: Okay. So, let’s say they are 1% negligent. Does the percentage change the amount of money you’re gonna get?

Michael: Not in non-subscriber cases. Because the negligence of the employee can’t be held against him in those cases. So, in a typical car accident case, yes, it would if it was 1%, 99%, I can’t recover. But in the non-subscriber Workers’ Comps, as long as there’s some negligent 1%, very small, yes, they can recover, and they’ll get their full damages. There won’t be any stopping that. You know, the question through your employer is, you know, are they judgment proof? Do they have assets that can be collected upon?

Carol: See, that’s the thing. I mean, so many companies, the first thing they do is they go and they make sure that they don’t have anything personally that you can go after.

Michael: Right. So, it depends on the size of the company and their financial situation.

Carol: Okay. I guess it’s probably a good thing to find out with your employer, if they are a subscriber or not? How do you know?

Michael: Well, they tell you, they have to post it.

Carol: Okay. That’s if those things are like in break rooms and stuff like that.

Michael: Correct. Yes. So they have to post it there if they have Texas Workers’ Comp or not.

Carol: And they don’t have to be?

Michael: They don’t have to be. You can be a non-subscriber. And basically, as a company, risk the liability. Many companies do because of the Worker’s Comp rates. But they have a definite fear factor there. And some of them try to treat their employees right and pay and do what’s right, and others just ignore.

Carol: Oh, wow. Sonny says that she did not renew her commercial lease in late December of last year, but she had done some improvements as a tenant under the commercial lease that had allowed her to do so. Then she said, “I was told that I had to take the improvements down, and I would be charged $4,800.” But her landlord would not allow her to get her contractor to take the improvements down. And as of now, she still hasn’t given been given back her deposit or the difference between the deposit and the improvements. “The owner of the building is a lawyer. What are my options?” And is it worth it to sue him over her $6,000 deposit that’s still owed to her?

Michael: Well, it’s certainly worth looking into. I would need to read the lease to determine whether or not this issue was even brought up in there. Was there a clause in the commercial lease that talked about your right and ability to make improvements? And what would happen at the end of the lease? So, all these things were probably thought out in advance and in the lease. So, depending on what the lease says is the answer to this question.

Carol: Okay. But what happens if it’s not addressed in the lease? And it was, like, just, kind of, a passing verbal type thing?

Michael: Well, then I think it’s worth pursuing. I mean, it may become a swearing match between you and the landlord. But if your landlord told you that, yes, you could do it and didn’t tell you, you know, anything else, like, well, you’d be charged for it later or anything like that. But then I think you’re in pretty good shape because they’re gonna hold the landlord because they’re the one who wrote the lease to a higher standard than they’re gonna hold you. So I think you’ll have a lot of benefits there and potential to be able to succeed. You know, I would sit down with the landlord and see if you can work it out. If not, I would, you know, talk to a lawyer, have them write the landlord a letter, and see if they can negotiate and resolve it.

Carol: Because we’re always talking about make sure everything’s in your contract, make sure everything’s in your lease. But sometimes things like this do come up. I mean, like, probably, you know, a couple of months in she’s like, “You know, what, I wanna do this and the other.” And he was like, “Yeah, okay, whatever. That’s fine.” And then you just never think to get it in writing because you’re like, “Oh, no, you know, I’m already in the lease, whatever.”

Michael: And I don’t know if these improvements were really an improvement in the landlord’s view, or it’s just an improvement because of the type of business the tenant had. So, you know, that’s a question too. What is an improvement to one may be a detriment to the other. So, all those things will need to be determined by the facts.

Man: All right. Was that our last one?

Carol: Yep.

Man: I wasn’t counting.

Carol: I know.

Man: I try not to call.

Carol: I know you…

Michael: You did good. You did.

Man: Did I? Good. Good. Because about this time of the morning my throat gets so irritated. It’s like the last thing I have. But from the positive test, but so annoying. Although I’m cool now that, you know, I have this superpower, right? You get a superpower, right, for, like…you’re good for like, what? 30, 60 days?

Carol: At least, yeah.

Man: Yes. Guess who’s going to a park now? Okay. All right. So, “Ask a Lawyer with Michael Gopin” if there’s a legal question you would like to put in front of him. Go to kisselpaso.com, Must Read bar. There’s a place there that you click on and you can send us your question or use your free 93.1 KISS FM mobile app. Michael Gopin, thank you so much. We’ll see you next month.

Michael: Yep, see you in February.

Michael J. Gopin

Michael J. Gopin has practiced law in El Paso since 1987. Even after more than 30 years, he still remembers his first jury case. It was two weeks after receiving his license, when he represented a person whose life had been forever changed after being blinded in a work-related incident...