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Hiring an attorney who has been through this before and can see what is coming on your case and head it off at the pass is your best bet. As you can see, it’s quite complicated, and you’re not dealing with a system designed to compensate you. You are dealing with a system that is designed to not pay you.
On a daily basis, the Law Office of Doug Goyen battles insurance companies on behalf of people injured in car accidents. Call us at (972) 599 4100 or use our website contact form to get in touch. There is no fee unless and until you win!
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I’M HAVING TROUBLE NEGOTIATING WITH MY INSURANCE COMPANY ABOUT MY CLAIM. WHAT SHOULD I DO?What does the Adjuster look for? To begin, it is useful to understand how insurance adjusters are trained. They do what they do. The following are the areas that the adjuster attacks on each injury claim, in the order listed. It is listed in the following order: a) coverage, b) liability, and c) damages:
a. Coverage: An adjuster is trained to look for whether a claim is a “covered loss” right away. That is, is there insurance coverage? They check to see if the driver is a covered driver. They check to see if their insured paid their bill on time. They check to see if the vehicle is covered. They look to see if the accident occurred in a way that is not covered by their insurance (on the job, intentional acts such as road rage, etc.). In other words, regardless of how serious your injury is or how liable their driver is, the first thing they do is try to get out of coverage so they don’t have to pay. If there is no coverage, there is no point in worrying about liability or damages – the adjuster is unconcerned.
b. Liability: The adjuster looks for liability issues that may help them avoid paying the claim. Was their driver negligent or worse in causing the accident? Even if they did something that contributed to the accident, was that action considered “negligence”? Someone can cause an accident even if they have done nothing wrong, such as if they had a heart attack and passed out. Many courts believe that this type of situation (heart attack causing the driver to pass out) does not constitute negligence. Some insurance companies will deny liability for this type of “cause,” claiming that their driver did nothing wrong and that it is impossible to prove he was “negligent” in any way. Consider the following when pursuing your claim when dealing with the “liability” issue:
1. Your negligence – many insurance companies will admit that their driver did something wrong, but then claim that “so did you.” You were driving too fast or too slow, you were not paying attention and could have avoided the accident if you had, you swerved when you should have braked, you braked when you should have swerved, and so on. These are all reasons why they will either deny your claim or reduce the amount for which they claim you are responsible by a percentage.
2. Intentional Acts: Road rage (both a liability and coverage issue), for example, is a problem when driving on the highway. A hothead will occasionally do something rash in order to cause an accident and injure someone. Most liability insurance policies expressly state that they do not cover “intentional acts.” So, how do you interpret this, and what about the word “intentional”? Some courts will rule that an intentional act is one in which you intended the result. In other words, the road rage driver may have swerved at you to scare you, but not with the intent to actually hit you or hurt you – if this is the case, the courts will often find coverage. However, if he actually intended to hit/hurt you, this type of action is usually not covered by a liability policy and gives an insurance company a reason to deny the claim (say it is not covered).
3. Acts of God: Many insurance companies try to argue that their driver was not at fault in the accident because of an “Act of God.” Nature is to blame for this, which is beyond anyone’s control. Lightning strikes, tornadoes, hurricanes, and floods are all examples of “Acts of God.” To successfully avoid liability in Texas by using the “Act of God” defense, an insurance company must demonstrate that the cause of the accident/injury was an act of God and that the insurance company’s driver was not negligent in any way that contributed to the injury at issue. See Buffalo Marine Serv., Inc. v. Monteau, 761 S.W.2d 416, 425 (Tex.App.—Houston [14th Dist.] 1988, no writ); see also Valley Line Co. v. Musgrove Towing Service, 654 F.Supp. 1009, 1011-12 (S.D. Tex. 1987).
4. Sudden Emergency: Many adjusters attempt to use the “sudden emergency” defense. Claiming that their driver had no choice but to act in this manner due to a “sudden emergency.” A “sudden emergency” is defined in Texas as a condition or circumstance that (1) arises suddenly and unexpectedly, (2) requires the driver to act quickly, and (3) is not caused by the negligence of the driver (or another person) seeking to use the “sudden emergency” doctrine as a defense, whether by failure to reasonably foresee or anticipate the necessity for quick action. See Skelly v. King, 443 S.W.2d 953, 955 (Tex.Civ.App.—Amarillo 1969) (citing Goolsbee v. Texas & N.O.R. Co., 243 S.W.2d 386 (1951)), reversed on other grounds, 452 S.W.2d 691 (Tex. 1970), subsequent proceedings, 454 S.W.2d 775 (Tex.Civ.App.—Amarillo 1970, no writ)
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c. Damages: This is how you were harmed. Physically, mentally, financially, and so on. An adjuster will not automatically pay all bills incurred as a result of the car accident. They will frequently assert several defenses (many of which are false) to your claims in an attempt to avoid paying you or reduce the amount they pay – they are frequently false defenses because they are not true, but that does not stop them from pursuing these defenses: They will assert (among other things – each case must be judged on its own facts):
1. That you had a preexisting condition – Adjusters love to look through your medical history and claim that any complaint you’ve ever had of a similar nature is the same as the one in question. So, if you’ve had a back or neck injury, and if you’ve ever complained to your doctor about a sore neck or back (even if it was just a one-time complaint 10 years ago that went away and was never followed up on, and you completely forgot you ever made that complaint, that’s how insignificant it was). They will try to argue that the prior complaint proves that the injury already existed and that you are simply blaming a preexisting condition/injury on their accident in order to profit from the situation.
2. Damage to the vehicle does not support injury claimed – The adjuster will frequently claim that your vehicle’s damage was too minor to cause injury, or that if the damage was severe, the type of impact did not cause the injury you claim. They’ll tell you it was a sideswipe or a glancing blow, and you shouldn’t have felt anything.
3. Another accident resulting in a similar injury – They will find out if you have ever been in another car accident in which you were injured (all insurance companies share information through a service that almost all of them subscribe to). This enables them to determine whether you have ever filed a claim for anything and whether you have previously stated that your back, neck, or shoulder, for example, was sore. They will use this information against you to claim that the injury was caused by the other accident, not theirs and that you are attempting to double-dip and receive compensation for both the other accident and theirs.
4. Excessive bills – Insurance adjusters frequently claim that the doctors overcharged for the treatment they provided. The problem is that you don’t set the rates, and you still owe the bill whether it’s high or low. If you ask the adjuster for something to help you prove to the medical provider that their bill is too high (so you can ask the medical provider to lower their bill), the adjuster will not provide you with anything. In other words, he’s making it up because he doesn’t like how much the bill is. If he had some “source” that proved the bill was excessively high, he would be happy to share that information with you so you could approach your hospital, doctor, therapist, and so on and get them to agree to reduce their bill based on the documentation provided by the adjuster. However, because the adjuster is making it up, he cannot provide you with any documentation to use.
5. You skipped treatments that could have healed you – Adjusters frequently review your medical records to see if you missed appointments. If you did, they will accuse you of contributing to your own injury by failing to follow the doctor’s orders. That if you had followed the doctor’s instructions, your injury would have healed faster and at a lower cost. Based on this argument, they will try to avoid paying your claim for medical bills.
6. You sought treatment from a “non-traditional” medical provider – Some adjusters will offer less money on your medical bills if you visit a chiropractor, doctor of osteopathy (DO), acupuncture, herbal medicine, or other “non-traditional” medical provider because they “don’t believe” in such treatment. Even if the treatment helps you and keeps you from taking medications that would make you drowsy and unable to work, they try to avoid paying the full value of these types of claims.
7. Your injury is “soft tissue” – Adjusters consider an injury to be “soft tissue” if it cannot be seen with the naked eye (such as cuts or broken bones on x-rays) and does not require surgery to repair. In the eyes of adjusters, these types of injuries are the “stepchildren” of injuries. They are given a lower priority and a lower value because the injury is not visible in some way. This is because if you are forced to take the case to trial in order to receive your money from a court, a jury will be forced to rely on you saying that you were actually feeling pain and how much pain you claim you felt. Most people can see and imagine how much it hurts if they can see cuts, surgery, or broken bones. With whiplash or back injuries, they must rely on you to be truthful with them about the extent of your pain (are you exaggerating, being truthful, or simply saying what your lawyer has told you to say? – These are the questions that a jury considers when determining the value of a “soft tissue” claim, and they can influence the amount they award (and thus the amount that adjusters offer to settle).
8. Your injury should have healed faster – In other words, you are malingering or exaggerating the severity of your injury in order to increase the value of your injury settlement. They claim that the “average” person will heal in 6-8 weeks – with or without treatment – from this type of injury. The problem with this argument is that there is no such thing as an “average person.” Each case must be handled on its own merits and in light of the individual’s circumstances. However, this does not prevent the insurance company’s adjuster from attempting to undervalue your personal injury claim by claiming that your injury should have healed faster and that they will not pay any bills after the “x” date.
9. If a diagnostic test has “no findings” – Because your diagnostic testing yielded “no findings,” it was unnecessary, and the adjuster refuses to pay for it. Your doctor wants to make sure you don’t have a herniation in your neck or back. You’ve had some symptoms that sound like herniations, and if you do have a herniated disc in your neck or back, this could be very dangerous. It may even cause paralysis in some cases, so they order an MRI to see if they can put you through physical therapy or if you need to be referred to a specialist to see if you need surgery to repair any herniations you may have. The MRI shows that everything is fine. You do not have a herniation. The adjuster then claims that because you did not have a herniation, you must have been exaggerating your symptoms, or the doctor misread your symptoms and that the MRI will not be covered.
10. You won’t be a good witness for yourself – if you are “too” argumentative by nature, or a little quirky in a way that they think will turn off others, or if the adjuster discovers a criminal history, they will lowball you on offers based on this information. They believe that even if your claim is legitimate, a jury will not award you money because they got lucky and you have these issues that they can use against you to avoid payment of a legitimate personal injury claim.
11. You treated too little – If you had large gaps in treatment (as a result, you did not treat enough). If there are gaps of a few weeks or months between visits to a doctor to treat your injury, the adjuster will claim that this is evidence that you must have gotten better, then reinjured yourself somewhere or somehow else, and are now attempting to blame that reinjury back on the accident to make some money.
12. You treated too much – If your doctor has you on a treatment plan, and you follow the doctor’s plan and never miss an appointment, the adjuster will frequently say that you went to treatment too frequently. And the doctor’s plan was to over-treat. (As you can see, you’re damned if you do and damned if you don’t follow the doctor’s plan.) If you go every time, your doctor is being greedy and treating you too frequently in order to profit from the situation. If you miss appointments, you have contributed to your own injury by failing to follow doctor’s orders).
13. You did not pay your bills – When dealing with an auto liability adjuster to pay your medical bills, the process can often be lengthy. In some cases, it can take months or even years. Hospitals and some doctors will not keep you for that long before turning you over to collection agencies. Insurance adjusters will play dumb and then argue, “you never paid these bills, and because you haven’t paid them, this is evidence that you never intend to pay them, so why should we pay for something you don’t intend to pay?” This, after destroying your credit and bombarding you with collection letters and phone calls on a daily basis for months or years, all due to their person’s negligence, and they try to blame it on you. This is typical insurance company adjuster behavior: cold, calculating, and uncaring.
14. An insurance company paid your bills – If you have health insurance, they will often pay your bills. So your only out-of-pocket expenses are the deductible and copays. The adjuster will attempt to reach an agreement with you for this amount. What they don’t tell you is that by signing the release, you also prevent your health insurer from collecting for what they paid. This may now have an impact on your health insurance coverage. Some health insurance companies will refuse coverage based on the amount of money you cost them. They will claim that they paid $15,000.00 and should have been able to collect that from the auto insurance adjuster, but you breached the contract by settling without allowing them to collect their amount owed to the health insurer. As a result, the health insurer will no longer pay any additional health insurance claims until you pay the $15,000 owed (the next $15,000 in claims is your new additional deductible). When you have insurance companies on both sides, you are very likely to be gotten from both ends in this situation. Your health insurance company is as cold, calculating, and uncaring as your auto insurance company. They are generally run by the same people at the top.
These are just a few of the strategies the adjuster will employ to attack your claim. Each case is handled based on its own facts, and each case may have its own issues that an adjuster will try to use to avoid paying all or part of your legitimate claim.
Remember that the adjuster is looking for a way to avoid paying your claim at each stage. 1) Coverage – If there is none, they do not have to pay. 2) Liability – if none, no payment; if they can impose some, they can reduce the percentage that they claim you are at fault. 3) Damages – If they can prove that your injury was caused by something else, somewhere else, or for some other reason, they may be able to avoid paying some, if not all, of your damages claims.
The adjuster is not looking to pay you anywhere. They are looking for ways to avoid paying you. Remember this, and you’ll have a better understanding of what’s going on when you’re dealing with the adjuster.
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IN AUTO ACCIDENT INJURY CASES, NEGOTIATING WITH INSURANCE COMPANIESThe negotiation process is intricate. You need a professional on your side if you want the best results. When someone is injured in a car accident, I recommend hiring a personal injury lawyer who specializes in auto accidents.
When attempting to negotiate your personal injury claim, you must consider the insurance company you are dealing with, why that insurance company acts the way it does, and why the insurance company believes it can treat people so poorly. Personal injury lawyers who handle auto accidents are accustomed to dealing with auto accident insurance adjusters; it is part of their daily routine.
At the insurance company, who are you dealing with?: You’re dealing with a liability insurance company. To begin, you must understand what liability insurance is and what it means in Texas. Liability insurance typically includes language stating that the insurance company will “pay for what you become legally liable for” as a result of the policy (driving for an automobile, doing business in commercial policies, etc.). There are, of course, exclusions – they do not cover everything. The most important aspect, however, is the language itself – “what you become legally liable for.”
How do you know if someone is legally responsible? That is, by obtaining a judgment against them. In other words, if you want to force the insurance company to pay you, you must obtain a final court judgment against the person they are insuring. You must sue the person who was the driver or the company that caused the injury, not the insurance company. Once you prove that the insured person or company is “legally liable,” the insurance company can be forced to pay.
Most insurance companies will not force you to file a lawsuit before negotiating with you. They will frequently try to settle the case without requiring you to go to court. However, if they have decided that they want to get out of your case cheaply or use an excuse not to pay, there is often nothing you can do except file a lawsuit – and they are well aware of this.
Why the insurance company behaves the way it does: Texas legislatures and courts have repeatedly taken away tools that used to help keep insurance companies in check when it comes to claims handling. There was a time when liability insurance companies would not take “questionable” actions because of the fear of a “Bad Faith” judgment against them. A person can file a bad faith claim against their insurance company if they believe they have been treated deceptively, unfairly, or fraudulently. You can get “punitive” damages (damages to punish the insurance company for bad behavior) – the worse the insurance company’s behavior, the more a jury is likely to give to punish the insurance company and send a message that you can’t treat your customers this way. If the behavior was severe enough, this could rise to 6 or 7 digit figures. This scared insurance companies, so they were cautious and took this into consideration when they dealt with claimants.
From 1989 to 1997, I worked as an insurance claims adjuster before becoming a Dallas personal injury attorney. When I first started working as an adjuster, the law was unclear as to whether a liability insurance company could be held to be acting in “Bad Faith” when dealing with a third party (a third party is a victim who is attempting to file a claim against the liability insurance to get their car fixed or medical bills paid for due to the insurance company’s insured driver or person causing injury or damages of some sort). The third-party claimant is filing a claim against the insurance of someone else. You do not have a contractual relationship with the liability insurance company as a third-party claimant.
The Tort Reform movement swept across Texas in elections throughout the state in the mid-1990s. Soon after, the Texas Supreme Court made it clear that “Bad Faith” claims against liability insurance policies could NOT be made by the people making third-party claims, those who did not have a contract with the insurance company. The insurance company had no duty to treat 3rd party claimants fairly in any way. This, combined with legislation passed by the Texas government that capped damages and imposed other restrictions on Bad Faith claims, gave insurance companies the green light to act however they saw fit when dealing with people making liability claims.
Why does the insurance company believe they can treat people in this manner? Making a profit is the bottom line for any large company or corporation. The greater the profit means paying less money. There is a conflict of interest between the policyholders and the insurance company’s stockholders or owners. When a policyholder has a claim, they want to be treated fairly, which means they want to be paid for their claim or for the insurance company to ensure they are not dragged into court on cases that should be settled or put personally at risk because the insurance company wants to roll the dice on trying to defend a claim.
Insurance company owners or stockholders, on the other hand, have a vested interest in making a profit, which means they want to pay as little as possible in order to maximize profit. This is frequently at odds with the policyholder’s interests. Corporate officers must answer to their stockholders if they want to keep their position. So the bottom line is that it is all about profits. Insurance companies are under pressure to keep premiums as low as possible, both from the competition and from stockholders. Because this conflict is as old as the insurance industry, the government has historically passed rules and laws to keep insurance companies in check.
Unfortunately, the law’s teeth have been removed in Texas over the last 30 years, allowing insurance companies to feel free to take advantage of people who have been victims of wrongful acts, negligence, and other wrongdoing. People who are least able to do anything about being mistreated (seriously injured, financially ruined by the wrongdoing of others) are the victims. Texas legislatures and courts allow insurance companies to behave in ways that used to be frowned on. This is why many people turn to the assistance of a lawyer when dealing with a liability insurance company. Often, the only way to force the insurance company to accept responsibility is to hire a personal injury lawyer who is well-versed in personal injury laws.
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SERIOUS PERSONAL INJURIES IN CAR ACCIDENTSIf you have a serious personal injury or a large sum of money owed to you as a result of the harms, losses, or personal injury caused by an automobile accident or a personal injury claim, do not mess around, hire an auto accident lawyer in Dallas right away to handle your personal injury claim. You need professional assistance to avoid botching your case or being taken advantage of by insurance company tactics. If you let them, they will take advantage of you as soon as possible. They don’t care if you’re correct or incorrect. They are unconcerned about the severity of your injury. If you give them an “out” to avoid paying anything on your case – whether on purpose or unintentionally – they will take that “out” and leave you wondering what happened.
SMALLER PROPERTY DAMAGE ONLY CASESIf you have a case where the economics of your case prohibit the cost of hiring an attorney (in other words a “property damage only” case where there is under $5000 in damage to your vehicle – where the expense of hiring a lawyer will outweigh what you get back in damages) and you need to handle your case yourself, here are some pointers to follow if you encounter a snag with the adjuster handling your personal injury claim:
1) Request to speak with a supervisor or manager in the claims department of the liability insurance company. The auto accident claims adjuster who is handling your claim may not always be the sharpest pencil in the box. They may have just given their two-week notice and are unconcerned. They could be filling in for someone who is on vacation and doesn’t give a damn. They might have a personality clash with you, so talking to someone else might do the trick. They could be having a bad day/week/month/year as a result of personal issues. Or, they may be doing exactly what their management instructs them to do… only one way to find out – ask to speak with the manager/supervisor and you will quickly determine if this is just a bad liability adjuster or a bad liability insurance company handling your automobile personal injury case.
2) File a grievance with the Texas Department of Insurance. If you’ve tried submitting your claim to the auto claims adjuster, then going through management, and you’re still getting nowhere, you can file a complaint with the Texas Department of Insurance. They keep track of all complaints filed against insurance companies. If it is an issue that they can force the insurance company to act differently on, they may do so (don’t hold your breath, it is a very rare case that the Texas Department of Insurance will force any change – typically, in the vast majority of cases, you get a letter back from the Texas Department of Insurance says there is nothing they can do to resolve the situation – even if there is a letter back saying there is nothing they can do to resolve the situation – even if there is a letter back Even if they are unable to compel the insurance company to treat you fairly in your case, the complaint is recorded – and every complaint helps others in the future determine which insurance companies are good and which are bad, as well as what the complaints are about.
Every time an insurance company treats you unfairly, file a complaint with the Texas State Board of Insurance. The issue is that the State of Texas has appointed people who are not doing anything to ruffle insurance companies’ feathers right now. But, eventually, those in charge at the Texas Department of Insurance will change – it may take years, but all of these things cycle around – and there will be a pro-consumer person at the helm of the Texas Department of Insurance once again. When that happens, a record of complaints will be useful in determining which insurance companies have been good and which have been bad, as well as determining what punishment should be meted out to those who deserve it, and possibly compensation to those who have been harmed by those acts. So, make sure to file a complaint and be on the record for unfair treatment.
3) Make certain to “gather all witness information.” Your adjuster may be skeptical of what you’re saying. An insurance adjuster usually has a healthy suspicion of all claims, regardless of how legitimate they are.
a. Witnesses to the accident – eyewitnesses who witnessed the actual running of the light, or rear-ender, and so on.
- Eyewitnesses who witnessed the wreckage on the scene.
- Eyewitnesses who saw or overheard how people were behaving or saying at the scene of the accident if any admissions were made, and so on.
- The police.
- Passers-by.
- Other motorists
- Other individuals involved in the accident
- Tow truck operators
- Firefighters or ambulance drivers in case of an emergency.
- 911 operators who answered the call – obtain the tapes – there may have been more than one person who called in – and what was said on the tapes may be useful.
b. Anyone who witnessed any aspect of your personal injury. If you have a personal injury from your auto accident, you need to have an auto accident lawyer handling the case. Either way, it is advantageous to have information on the following types of witnesses who may be able to confirm your injury claims and how they have affected you.
- Onlookers and witnesses
- The police.
- Ambulance Workers
- Personnel from the Fire Department.
- Any other drivers or passengers who were involved in the accident (including your own passengers/drivers).
- Personnel in the Emergency Room
- A personal physician is necessary for two reasons. 1) if he saw you for the injury in question, or 2) to demonstrate your history and that you have never complained of the current condition before, or if you had a prior condition that was made worse by the accident, then to demonstrate how the injury/condition was changed or made worse by the incident.
- Friends, family, coworkers, people you know at church, people you know at school, teachers, and bosses are examples of lay witnesses. These could be the most crucial witnesses you have. They will be able to confirm the difference in your appearance and behavior before and after the accident. This way, it’s not just your word against you, but you have people to back you up. It doesn’t matter if it’s your mother, father, sister, best friend, coworker, or anyone else. In fact, if those people refuse to vouch for you, the insurance company will consider your claim suspicious, as will a juror if your case goes to trial.
- Insurance adjusters for both your insurance company and the insurance company of the other driver(s).
4) Collect all records (medical bills and records, ambulance and fire department records, police reports, 911 call sheets, towing records, property damage estimates, proof of your lost income, rental car bills or records, proof of anything else out of pocket).
5) Gather all photographs/videos – of the accident scene while the wreckage is still there – if possible, of the accident scene later to show what traffic or conditions are like at the scene, of any part of your body that verifies your personal injury claims (cuts, bruising, etc), of any identifying information on the other vehicle (such as the license plate) in case they need to be traced.
6) Hire a good lawyer – hire a car accident lawyer or personal injury attorney who has handled car accident personal injury claims as soon as possible if there is an injury involved. You may have someone who has assisted you with a family law or will situation, but if they do not handle personal injury cases, they are likely to overlook something that will limit the amount you can recover. Hire a competent lawyer with a long and successful track record of handling automobile personal injury claims, both in negotiations with adjusters and at trial in cases where negotiations fail for whatever reason.
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CASE REVIEWS ARE COMPLETELY FREE.Contact us for a free consultation and strategy session about your personal injury case. The strategy session includes a summary of your case, a discussion of the legal issues involved in your case, and a discussion of the legal issues that will maximize your recovery. We will email you a copy of this strategy session for your records.
Call the Law Office of Doug Goyen at (972) 599 4100 today for assistance with your car accident injury claim.
THERE IS NO FEE IF WE DO NOT WINYou owe us nothing if we are unable to recover. Dallas personal injury attorneys charge a contingency fee structured to take a percentage of what we recover. As a performance-based contract, the better we do for you, the better we do for ourselves. This aligns our interests in the case with our client’s interests.
DIRECTIONS TO OUR OFFICELaw Office of Doug Goyen
15851 Dallas Pkwy #605
Addison, Texas 75001
(972) 599 4100 phone
(972) 398 2629 fax
Directions to our office: We are on the southbound side of the service road to the Tollway. Stay on the Dallas North Tollway until you come to the Keller Springs exit. Take the Keller Spring exit. Stay on the service road on the southbound side and go just past Keller Springs. Our office is the 2nd building south of Keller Springs, located on the service road to the North Dallas Tollway in the Madison Business Center on the 6th floor.
By Doug Goyen, douggoyen@goyenlaw.com
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