FAQ Friday with Gregory Herrman & Daniel Covich. February 2, 2018

all right well hello everybody this is Greg Germann is a frequently asked question Friday again we're going back to our old format a little bit we're gonna do a question-and-answer today one of my lawyers here Daniel Kovac it's going to answer some questions Danya one tell us just a little bit about yourself sure good afternoon my name is Jamie Kovich I'm one of red Hurons litigators here at holman or Hermann originally from Austin Texas I've been down in the South Texas area here in Corpus Christi since 2000 graduated from what is now Texas State University in San Marcos I got my I got my UT transfusion I came back and went to work for the University of Texas as an ad rep professor at the University of Texas law school I taught second and third year law students word for the court in one corner was attorney general it's one of his assistant AG's and fortunate enough to be litigating down here okay so we're going to talk about HIPAA but that sounds a little bit boring so we decided to switch up the subject a little bit and we're going to talk about the Texas the Texas law which makes it a felony for teachers and students to have sex even if the if the student is over 17 which is y'all know 17 is the age of consent in Texas some states it's 18 some states it's it's lower but Texas at 17 so but not for the law you'd be okay for you know two consenting adults because seventeen is considered an adult not for the law would be okay to have sex relations but this is kind of a big thing right now it seems to happen all the time you know but it seems like about once or twice every month I hear about another teacher and student having sex and so Daniel fashions himself some kind of an expert or a little bit of next round this subject so I thought we just asked him about it what a loaded question little understand i don't export okay alright so so what what just what should our audience need to know about this what's free thank you what's very interesting about this Greg is that Texas has this somewhat unique law there's actually been challenged right now that basically says look although the age of consent may be 17 if you're a teacher you have a special relationship and duty to your students and even if they're 17 or above we're going to make it a felony because of that relationship for you to have an improper sexual relationship any type of social relationship with a student what what we're finding right now is the challenge the challenge that's going on to actually the Supreme Court of Texas on this law is similar to the challenge in the argument that was being made for the prohibition and various states across especially the South for same-sex marriages the one of the basic premises to fight the same-sex marriage bans is the argument that it is a violation of people's basic constitutional rights to pick and choose as they feel irrespective how you feel about that that's the law and that's the argument against the law and what what is going on right now with the challenge on the statute in Texas regarding teachers that seventeen year olds and making it a felony is the same whether or not that specific law that makes it a felony is unconstitutional because it interferes with what would otherwise be a legal relationship no so that's what's going on with that what's also very interesting to me I would think maybe that students are a special class so that you could be that could be classified separately and there's a reason even to treat them differently than just a regular person in society well yeah and that's when you start getting into society values and what the morals are of any given culture because I don't know about others but I send my kids to school to get education and I'd like them to come back basically in the same condition they were when I sent them and I think that all societies I don't care what religion it is for what country they're from or even what time period you're talking about in the history of mankind all societies expect teachers to take care of their students and not engage in sexual conduct with their students so that that would tend to me a difference between between the the argument about same-sex marriage absolutely yeah that your and your are dealing with somewhat naive young people I have to save in a lot of these cases what you see is very predatory behavior on behalf of these teachers where they absolutely know that these kids are 17 down to their 17th birthday we have seen cases here at herrmann herrmann where you have teachers engaging in relations with do with kids a week after they turn 17 is that coincidence maybe but we doubt it you know dad it's coincidence and that's that's a case you're having here that yeah it's one of them okay and we see it a lot but it's way more than one of them yeah we do yeah we did it we got a couple and what's interesting Greg we've talked about this before is that you know the double standard there is in our society regarding a male teacher this is a female teacher I've seen cases involved with cases where you're talking about a female teacher with a male student in one case it was a female teacher with an African American athlete male student and you have to wonder you have to wonder if you turn the rolls around a little bit in our society if you've been in African American teacher with a blond-haired blue-eyed cheerleader whether or not there would have been a little more quarter mil punishment of course you know as opposed to the high fives so so that's what we see a lot of and that's something that really does need to be addressed nationwide there needs to be some consistency in the laws you just seem to see a lot of female teachers this type of behavior across the United States I think that part of it is that there's this the like a penalty when it comes to female teachers so you ain't gonna be a federal law then I'm supposed to state law there needs to be some uniformity in law and usually the deformity comes with a federal statute there should be some sort of act or law that makes it more uniform and consistent for female teachers all right and I understand there's a lawyer challenging this Vaughn from it's from United States yeah there is and he's a criminal lawyer he's just um well it's a criminal case for so it's a criminal case now he does handles the civil side of these cases also but what with those two attorneys are doing is they're basically they've represented a teacher or some individuals that have been prosecuted with the criminal statutes man and they're taking that the criminal side of that up to the United States Supreme Court basically saying for the same reason you cannot ban same-sex marriages you cannot interfere with what would otherwise be a lawful relationship and we're kind of full circle back on the fact that these are kids their kids and and their society expectations for this and I think their position is look go ahead and take my teachers took it away you know I can't teach anymore go ahead and take that from me but don't send me to prison for what otherwise I would not be a felony and that's what their argument is before the Supreme Court and so but case we're handling our civil cases absolutely what's our cause of action and whoo-hoo we're sending the teacher personally and we're seeing the school district or any eight times ever great great question great point a little MALDI above in whatever you have these situations one of the things that we do is affirm a hermit or hermit is we look very hard at you know what are the problem recoveries where can we get the best result for somebody someone sort of a surgeon the surgeon goes in and just tries to decide what procedure or surgery would be the best for a patient we have to look at what would get them the best result legally and while there might be a criminal cause of action for the teachers conduct that same action could also be a civil cause of action so on the criminal side of it it might be in the state of Texas versus whomever it would be our kid or our kids parents on behalf of that child versus whomever in the silicates for the exact same act so they can be like two parallel train tracks at the same time you get at the criminal going on and the silicates going on no let's say the kid seventeen does he still need a parent to represent ironically yes isn't that ironic that at 17 they're old enough to otherwise have divided a teacher-student relationship to engage in sexual relations without penalty normally but you're not old enough to sign a contract for representation or to get a damn contract join a gym whatever maybe until you're 18 so it's a little ironic there but yeah we would eat their parents signature to go forward for them what does that tell you about whether or not they're still kids yeah for kids it is is this a 1983 action what's the cause of it-- it's not a civil rights cause of action per se it's really more of an assault cause of action and/or an invasion of privacy cause of action what we tend to see with these types of things unfortunately is all the things that go around and along with this type of behavior for example you might have a minor go to a 17 year old go to a teacher's house and serve alcohol or we serve some other drug and that ended of itself taking the sexual conduct out of it is is egregious behavior so when you're dealing with someone's phone what do the things that we look for both affirming for example might be homeowners coverage if you assault a minor on your premises if you give a minor a drug or alcohol and you're serving them underage or illegally then that could be actionable under their homeowners policy you can certainly sue the teacher you can sue the individual that's behavior this conduct and there are homeowners coverage may apply and we've been successful in that in the past but to go after let's say a school district is even harder they're going after a normal employer like if you work for ABC company and the manager or supervisor from ABC company sexually assaults you or making a proper advance then that is that you all you have to show is that that company knew that the end of this individual had a propensity act this way that they had these in their past that showed that hey this is not the type of person that you want your company uniform engaging with the public it's the type of thing that you do they did or that you should have known that they do because of their history that is the same standard for the school district but school districts have some like super immunity it's very difficult to get to a school district as opposed to a private company but in this type of instance when you're talking about sexual conduct of a teacher with the student there's definitely some precedents and prior cases that allow you to hold the school district accountable and responsible for this behavior all right well first question black the homeowners insurance how did you get around the intentional conduct standard that insurance time you say we will cover intentional conduct we only cover a negligent country and great question and and one of the things that you absolutely have to start with anytime you're talking about any type of homeowners insurance is you know contracts 101 right for the first day of law school give me the contract let me look at the relationship the rights and duties before the parties and I'll answer your question let me look at that contract between the insurance company and their insured and I'll tell you what the rights responsibilities are whether or not there's coverage oftentimes and I know that you've seen it over the years you get an insurance company shooting you a letter and in the body of that letter that quote two or three sentences out of an insurance policy to try to explain to you why something is it covered but if you've got to copy that entire policy you'd see the doubt language maybe was taken out of context so it's very important that a homeowner allow us that Romina Merman to take a look at that insurance policy for them in total so we can advise them according on what their rights are or the responsibilities are that insurance company it's very important that we do that but putting that aside to answer your question most definitely the intentional conduct part is difficult but very very often when you have somebody acting like that and they're under criminal pressure criminal indictment pressure very seldom do they say up the right you got me I meant to break the law I intended to do this I attended to do harm it's just that happen that way this type of person tends not to take responsibility for these No so a lot of it is how we plead it and present it to the insurance company baby lawyers make them this mistake a lot you've got to absolutely know when to do something as a lawyer and what not to do something that's an order and one of the things not to do is to plead any intentional conduct in your letter to the insurance company is make it absolutely just the facts of what occurred and let that ensure deal with his insurer expect me to let them know whether or not their conduct was intentional or negligent and when you do sue the school district are there any kind of caps on your recovery absolutely yes there are and this is what I get work it's interesting and there's you know there's black and white and then unfortunately there's grade there's somewhat of a gray area here on whether or not there's a cap but typically they're dealing with an intro with a excuse me with a school district you're not dealing with necessarily a private insurance company so the statutory cap for the individual can be a hundred thousand dollars up to $250,000 for the entity so if you can if you can get an award or a finding of negligence or a wrongful conduct of the teacher it would be a hundred thousand dollars along the school district would be 250 would be the account but that is going to be for non-economic damages most and so if if you've got if you've got economic damages to go with it if there's something else let's say it's like for example if it's not a sexual assault but let's just say an assault or if someone has attacked at her even by a teacher and they were Garan injured for life that affected their wage earning capacity in the future that would have no cap with the soft damages the mental anguish the sensual effects of the negligent infliction of emotional distress that would be that would be capped at the amounts that we just discussed what about say psychological damage and they said harm for life would that count as economic damage if it only if it led to some decrease in their ability to work in the future that's exactly important exactly a good question a good point yes against the psychological damage in Texas has to be backed up what they call a physical manifestation of injury there's a very sad case out of Austin against the University of Texas that unfortunately proved that point and you you can have a of course a psychological injury but you've got to have either a counseling bill to go with it that you're gonna need counseling or an estimate for counseling that you needed in the future or also let's face it that people can have psychological injuries to the point that they shut down physically and if you have those types of medical findings in the case that absolutely absolutely you can get around what they call those soft damages or soft cases well if you wanna hear a little bit about that Meucci case it's very interesting case what happened well you know we try to keep these up okay there's another dance well another day I would say the rape case I would say if anybody has any questions y'all can put them on our Facebook page or send us a message or a week we can answer more if y'all know somebody that has this kind of case you know you can tell them to write in and ask for Daniel and talk to Daniel or made to and I can get with Daniel about it but again you know we're trying to keep these fairly short and if anyone wants to hear about this case Daniel's down to tell us about perhaps he can write a blog on it or say it's interesting it's it's excuse the part it's a sexy case anyway I think that's for now anything you needed to add or one I really appreciate you letting me be on this with you it's a it's an honor it's a lot of fun thank you great all right well until next week thanks for tuning in for a frequently asked questions Friday we'll see you next Friday to that