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Who Can File a Wrongful Death Claim in Texas?

Sunday, October 10, 2021

If someone you know passes away in an unexpected accident, you may have grounds to file a wrongful death claim. This is a type of civil lawsuit that seeks to hold someone accountable for causing a preventable death. Filing a claim can make your loved one’s story heard and give your family the answers and closure that it needs. Only certain parties have the right to file wrongful death claims in Texas, however.

What Is Wrongful Death?

A wrongful death lawsuit can only be filed in Texas if the circumstances of the death qualify it as wrongful or preventable. Texas Civil Practices and Remedies Code Section 71.002 defines wrongful death as a death caused by someone else’s careless acts, neglect, unskillfulness, default or wrongdoing. In general, if the fatal injury would have been prevented with a reasonable amount of care and skill by the defendant, the defendant can be held liable (legally and financially responsible) for the losses associated with the death.

To have grounds for a wrongful death claim, you or your lawyer must be able to prove that the defendant owed a legal responsibility of care to your loved one, breached or violated this duty of care, and caused the fatal injury. There must be evidence that your loved one’s death would not have occurred were it not for the defendant’s actions. Common accidents involved in wrongful death claims in Texas are car crashes, premises liability accidents, products with dangerous defects, medical malpractice and criminal activity.

Who Has the Right to File a Wrongful Death Claim in Texas?

If you believe that the circumstances surrounding your loved one’s death qualify your family for financial benefits through a wrongful death lawsuit, the next step is learning who has the legal right to file this type of suit under Texas law. Section 71.004 states that filing an action to recover damages for wrongful death is a benefit that is exclusively given to:

  • The surviving spouse
  • Surviving children
  • Parents or guardians of the deceased

If none of these parties file within three months of the decedent’s death, the administrator or executor of the state may bring the cause of action instead, unless the surviving heirs specifically request that the executor not file. Although some states allow anyone who can prove they were dependent upon the decedent to file a wrongful death claim, the filing party must have one of these relationships with the decedent to file in Texas.

Who Can Benefit From Bringing a Wrongful Death Claim?

The person who files the claim is not necessarily the only one who can receive financial compensation for wrongful death. Regardless of who files the wrongful death claim in Texas, any financial compensation won is distributed among beneficiaries and the estate. This can include a surviving spouse, children, parents, stepchildren and any other surviving individual who is entitled to recover compensation.

A settlement or judgment award is distributed based on the stipulations of the decedent’s will. If the decedent did not create a will before the time of death, financial benefits are distributed to heirs according to the determination of a judge or jury. Typically, each heir must demonstrate the economic and noneconomic losses they suffered because of the family member so that the courts can assign appropriate financial compensation to each.

How Long Does Someone Have to File a Wrongful Death Claim in Texas?

Finally, the filing party must submit the paperwork to the civil courts within Texas’ deadline to have a valid wrongful death claim. The deadline, or statute of limitations, on a wrongful death lawsuit in Texas is two years of the date of death. Note that this might not be the same as the date of the injury. If the claimant fails to bring a cause of action within two years, the courts in Texas will most likely reject the case. This is why it is important to consult with an attorney in Dallas as soon as possible if you believe you have the right to file a wrongful death claim.

Posted by Legal Team at 10:22 am

Funeral Expenses in a Wrongful Death Claim

Sunday, October 10, 2021

There are many reasons to file a wrongful death claim after the unexpected death of a loved one, including giving them a voice in the justice system and holding a negligent party responsible. Another benefit of bringing a lawsuit is recovering financial compensation for the costs of your loved one’s funeral and burial. In Texas, heirs are entitled to funeral and burial expense damages for the wrongful death of a family member.

Are Funeral Expenses Reimbursed in a Wrongful Death Claim?

In many cases, yes. While it is not possible to guarantee results for a wrongful death lawsuit, most cases end in compensation for the decedent’s heirs or estate to pay for funeral and burial expenses. The definition of funeral and burial costs are the economic damages incurred by heirs or the estate for funeral services and the disposition of the body. Anyone who contributed to paying for the funeral – even those who were not heirs – can receive compensation for what they spent.

The compensation granted for funeral and burial costs can refer cover many different related expenses, including:

  • Coffin
  • Cremation
  • Urn
  • Flowers
  • Cemetery plot
  • Headstone or monument
  • Vault
  • Funeral home costs

The price of a funeral and burial is combined with other available damages, such as the decedent’s lost wages, lost household services, loss of consortium, pain and suffering, property damage, and more. These are all examples of economic and noneconomic losses that are recoverable in the average wrongful death lawsuit in Texas.

What Are “Reasonable” Funeral and Burial Costs?

The amount of money that you can receive in funeral and burial expenses in a wrongful death claim is not without limits. In a Texas wrongful death lawsuit, an insurance company will only pay for an amount of funeral and burial costs that are viewed as “reasonable.” The reasonableness standard can depend on factors that are unique to the case, such as the size of the decedent’s estate. In general, a reasonable funeral and burial will cost around $10,000. However, you may be eligible for greater compensation if you can prove that what you spent was reasonable.

How to Prove Your Funeral Expenses

You can prove the value of your funeral and burial expenses by keeping copies of related bills, receipts and invoices. Keep the receipts of anything that you purchased for a funeral, memorial service, cremation or burial and make multiple copies. You may also need a written explanation of why what you spent was reasonable according to the situation. An attorney can help you gather evidence of your losses for a claim.

How Can a Wrongful Death Attorney Help?

It is important not to accept a wrongful death settlement from an insurance company before consulting with an attorney. You cannot trust that an insurance company is maximizing your financial recovery. On the contrary, insurance companies often try to minimize payouts to protect their own profits. A wrongful death lawyer in Dallas, on the other hand, will want your family to recover as much compensation as possible.

A lawyer will use proven legal tactics to fight for the true value of your case, including the full amount that your family spent on funeral and burial costs. A lawyer can negotiate with an insurance company for you or take your case to trial, if necessary. With trial experience in the law firm’s history, an insurance company will be more likely to offer a fair settlement for your wrongful death claim upfront. If not, however, your attorney can represent your loved one at trial.

If you recently lost a loved one in an avoidable accident in Dallas, don’t hesitate to contact an attorney for a free consultation. You can discuss your ability to recover funeral expenses and other losses using a wrongful death claim. Consulting with an attorney right away can reduce your chances of missing an important filing deadline.

Posted by Legal Team at 10:12 am

How to Prove Fault in a Wrongful Death Claim

Saturday, October 9, 2021

If your family wishes to file a wrongful death claim in Texas, you must learn how to navigate the legal process. One of the most important things to know is that it is your responsibility as the filing party, or plaintiff, to prove the fault of the party or parties you are blaming for your loved one’s death. You or your attorney must convince an insurance company, judge or jury that the defendant you have named is more likely to be responsible for the wrongful death than not.

What Are the Elements of a Wrongful Death Claim?

To have grounds for a wrongful death claim in Texas, you must have all of the necessary elements. Surviving family members can only file wrongful death lawsuits in Texas if the circumstances of the death fulfill the state’s definition of wrongful. According to Texas Civil Practices and Remedies Code Section 71.002, a wrongful death is one caused by the neglect, carelessness, unskillfulness, default or wrongful act of another person or agent.

The majority of wrongful death lawsuits are based on the legal doctrine of negligence. A party has been negligent if they failed to use an acceptable amount of care for a situation, such as a driver failing to pay attention to the road and causing a car accident. In general, proving a wrongful death claim based on negligence requires evidence of three elements: duty, breach and causation.

Duty refers to the duty of care, or the responsibility of the defendant to exercise reasonable care based on the circumstances. A breach can refer to any action or omission that falls short of the applicable duty of care. Causation means that the defendant’s breach of duty was the cause of the deceased person’s fatal injuries; that the death would not have happened were it not for the defendant’s actions. Unlike a criminal homicide case, it is not necessary to prove intent to kill in a wrongful death case. Even if the death was an accident, you may have grounds to file a wrongful death lawsuit.

 

Fault in a Wrongful Death Claim

What Is the Burden of Proof?

As the plaintiff in a civil lawsuit, you have what is called the burden of proof. This means it is your responsibility to prove what you are claiming. The burden of proof changes according to the type of case. In criminal law, for example, it is proof beyond a reasonable doubt. This is the highest evidentiary standard. In civil law, however, the burden of proof is only a preponderance of the evidence. This is enough clear and convincing evidence to prove that the defendant is more likely than not responsible for the injury or death being claimed.

What Evidence Is Available in a Wrongful Death Case?

In a wrongful death lawsuit, you or your attorney must prove that the defendant caused your loved one’s death with at least a 50 percent certainty. You must do this using evidence. Evidence can refer to physical proof, documentation, oral statements or circumstantial evidence that supports the claim being made. Some of the most common examples of evidence used in a wrongful death claim in Texas are:

  • Accident report
  • Police report
  • Photographs and videos
  • Signed eyewitness statements
  • Testimony from experts
  • Medical records
  • Coroner’s report
  • Proof of losses, such as bills and receipts

The burden of proof requires clear evidence that convinces a judge or jury to side with the plaintiff. Collecting and presenting evidence are tasks that an experienced wrongful death attorney in Dallas can help you complete. An attorney can investigate the fatal accident, interview eyewitnesses, request copies of important records and take many other steps to build the most compelling claim possible.

How Can a Wrongful Death Attorney Help?

A wrongful death claim can be difficult to handle on your own. Increase your odds of securing fair financial compensation for the devastating loss of your loved one’s life by hiring a wrongful death attorney to represent you. An attorney can help you with the steps that are necessary to prove fault and get justice for your loved one.

Posted by Legal Team at 10:08 am

What Damages Can Be Recovered in a Wrongful Death Case?

Friday, May 21, 2021

In personal injury law, damages refers to the amount of money granted to a victim for a breach or violation of a duty of care by a defendant. Damages are awarded to make an injured party whole again after suffering a loss or injury due to a wrongful act. Although no amount of money can reimburse a family for a loss of life, the damages available in a wrongful death claim in Dallas can help a family achieve justice and greater financial stability in the future.

What Damages Can Be Recovered in a Wrongful Death Case?

Lost Earnings

There are two broad categories of damages available in a wrongful death case in Texas. The first permits beneficiaries of the deceased person (the decedent) to recover for their losses connected to the loss of a loved one’s life. The second reimburses the decedent’s estate for the losses he or she suffered between the date of the accident and the date of death.

One type of financial compensation that falls into the second category is lost earnings. This refers to the deceased individual’s lost wages, lost employment benefits and lost capacity to earn, including the wages he or she foreseeably would have earned in the future, had the fatal accident not occurred. The amount recoverable in lost wages will depend on the decedent’s income and age at the time of death.

Lost Inheritance

Lost inheritance reimburses surviving family members for the value of what the deceased person likely would have saved and bestowed to surviving beneficiaries had he or she lived a normal expected lifetime. This can include inheritance in the form of savings, property, a 401(k), retirement benefits, stocks and bonds, and other investments. The courts will estimate what the decedent likely would have made and passed onto his or her heirs had the fatal accident not taken place.

Lost Services, Support and Love

Lost services and support is an intangible category of damages that refers to survivors’ losses of the decedent’s household services, such as chores, cooking, childcare and handiwork. This damage category can also refer to the loss of the decedent’s love, companionship, care, advice and comfort given to loved ones. These losses can apply to a parent-child relationship as well as a spousal relationship.

Pain, Suffering and Emotional Distress

A successful wrongful death lawsuit can reimburse family members for their emotional distress and mental anguish, as well as the decedent for his or her pain and suffering in the time leading up to the death. This damage category can encompass physical pain, emotional suffering, distress, psychological trauma, post-traumatic stress disorder, depression, anxiety, reduced quality of life and many other noneconomic damages connected to the unexpected loss of life.

Exemplary Damages

Texas Revised Statute Section 71.009 states that if a death is caused by a willful act or omission, or by gross negligence on the part of the defendant, the plaintiff may recover exemplary damages in addition to actual damages. Gross negligence is a reckless disregard for the safety of others. Exemplary damages, also known as punitive damages, serve to punish a defendant rather than reimburse a plaintiff. A judge will determine an amount in punitive damages, if any, based on the circumstances of the individual case.

How Much Is Your Wrongful Death Case Worth?

There is no such thing as an average settlement value for a wrongful death case. The value of your family’s wrongful death case will depend on many factors and circumstances unique to you. A wrongful death lawyer in Dallas will review the specific facts of your case and give you an accurate evaluation.

Then, your attorney can negotiate with an insurance corporation on your behalf or represent your family during a trial. A lawyer will fight for maximum financial compensation to give your family justice, closure and the recovery you need to move forward. For more information, contact The Law Firm of Aaron A. Herbert to request a free wrongful death case review.

Posted by admin at 6:46 pm

How Are Wrongful Death Settlements Paid Out?

Thursday, February 25, 2021

Families pursue wrongful death claims for many important reasons, such as justice, closure and holding a wrongdoer accountable. A wrongful death lawsuit in Dallas can also provide financial compensation to surviving family members, enabling them to pay related debts and have greater financial stability in the future. If a claim succeeds, the family can receive a wrongful death settlement from the insurance carrier of the at-fault party.

What Does a Wrongful Death Settlement Include?

Holding a person or entity financially responsible for causing a fatal injury in Texas can lead to a settlement check that covers many economic and noneconomic damages. Surviving family members and the estate can recover financial compensation for losses such as:

  • Reasonable funeral and burial costs
  • Medical bills from the decedent’s final injury
  • Loss of the loved one’s financial support
  • Loss of inheritance
  • Property damage caused by the accident
  • The decedent’s pain and suffering
  • The family’s mental anguish
  • Loss of the loved one’s love, companionship and guidance

The value of a wrongful death settlement or judgment award will depend on the unique circumstances of the case. A deceased person’s age at the time of death, average income, the insurance coverage available, the number of dependents and many other factors can impact a settlement amount.

How Are Wrongful Death Settlements Paid Out?

Lump-Sum vs. Structured Settlement

There are two types of settlements: a lump sum payment and a structured settlement. A lump sum means the full amount of the settlement is paid out at once, giving the deceased person’s estate or beneficiaries a single lump-sum payment. The family can use the money right away to pay for funeral and burial costs, as well as medical bills and legal fees.

With a structured settlement, the deceased person’s estate receives the settlement a portion at a time over several weeks. Ongoing payments given to surviving family members can provide continuous support for a longer length of time after the loved one’s death. However, a structured settlement could make it more difficult to pay large bills upfront.

How Long Does it Take to Receive a Wrongful Death Settlement Check?

The answer to this question depends on the facts and circumstances of your case. Some wrongful death settlements are achieved in only a matter of months if there are no complications. Others take a year or longer if they go to trial. Your timeline will depend on the complexity of the wrongful death case, as well as if you encounter any challenges that add time to the settlement.

Who Receives the Money?

Once an insurance company releases a settlement check, the money will go to surviving loved ones, according to Texas law. A settlement will be distributed among beneficiaries according to the family’s wishes or the laws of intestate succession. In general, parties that can make a claim to wrongful death settlement include a surviving spouse, children and parents. The deceased person’s estate may also receive part of a settlement to pay off any remaining debts.

Do You Have to Pay Taxes on a Wrongful Death Settlement?

According to the Internal Revenue Service, a family typically does not have to pay taxes on a wrongful death settlement. Since settlements arise from physical injuries or illnesses, they are nontaxable. However, if the settlement includes a portion for medical bills that you deducted on your taxes in a previous year, a portion for emotional distress or a portion for punitive damages, your family may have to pay taxes on that portion.

How a Lawyer Can Help With a Wrongful Death Settlement

It is important to work with an attorney for a wrongful death settlement. With rare exceptions, once you accept a settlement and decide how you wish to receive it, you cannot change the terms of the agreement. A lawyer can make sure you receive a fair amount and choose the best payout type for your situation. A lawyer can also help you organize your settlement for tax purposes. Learn more about wrongful death settlements by consulting with an attorney.

Posted by admin at 11:00 pm

How Long Does it Take to Settle a Wrongful Death Claim?

Wednesday, February 24, 2021

Wrongful death is a terrible tragedy that occurs due to negligence, default or intent to harm another person. If you recently lost a beloved family member in any type of incident in Dallas, such as a car accident or physical assault, a wrongful death claim could result in financial compensation to help you pay the bills. Find out how long it may take your family’s wrongful death claim to settle in Texas.

How Long Does it Take to Settle a Wrongful Death Claim?

No Average Settlement Timeline Is Accurate Per Client

It is important to realize that no two wrongful death claims are exactly alike in Texas. Some resolve in a matter of just a few months, while others take multiple years to finally end in payment for surviving family members. Searching for average settlement timelines for wrongful death claims, therefore, will not give you an answer that is accurate for your particular case. Instead, each case is unique and requires careful evaluation by a wrongful death attorney for an accurate timeline.

Factors That Can Impact a Wrongful Death Settlement Timeline

The main factor that will determine whether you will resolve your wrongful death claim in a matter of months or years is whether it settles or goes to trial. The average insurance settlement takes three or four months from the time the family submits an insurance claim to the family receiving a settlement check.

If an insurance settlement is not possible or in your family’s best interest, however, your case may require a full-blown trial to resolve. A trial in Dallas can take a year or longer to complete depending on how many cases the courthouse has to hear. In a busy county with a congested courthouse, your family might not receive a court date for a long time.

In addition to whether or not you achieve an insurance settlement, several other factors could also affect your recovery timeline. Your wrongful death case may take longer to resolve if:

  • Fault is complicated, such as in a hit-and-run auto accident.
  • The insurance company is refuting fault or arguing someone else’s shared negligence.
  • The defendant is simultaneously facing criminal charges, such as homicide or manslaughter.
  • Your case is worth a significant amount of money, making an insurance company want to delay payout.
  • The insurance company is treating your wrongful death claim in bad faith.

Although it may be difficult, you must exercise patience during the legal process after the wrongful death of a loved one. There are ways your family can pay the bills in the meantime, such as through your own insurance company, a workers’ compensation claim or insurance subrogation. A lawyer can help your family front the costs of a lawsuit while you wait for your case to resolve. Waiting can be worthwhile if accepting a quick settlement will not provide the compensation your family deserves.

Why It Is Dangerous to Rush a Settlement

Insurance companies put their profits and bottom lines over client payouts. Reducing and rejecting insurance benefits as often as possible is how insurance companies remain profitable. It is important to keep this in mind during wrongful death settlement negotiations – especially since you cannot renegotiate a settlement amount once accepted.

The first settlement offered to your family may drastically underestimate the past and future losses connected to your loved one’s death. It is up to you to negotiate with the insurer until you are certain the offer is fair, even if this extends your timeline. While it may be tempting to rush into a fast settlement and finish your wrongful death claim, waiting could make a significant difference.

Although no amount of money can ever make up for the loss of your loved one, a fair and full settlement or judgment award could allow your family the financial stability you need during this difficult time. Consult with a wrongful death attorney in Dallas for more information.

Posted by admin at 10:58 pm

How Are Wrongful Death Proceeds Divided in Texas?

Monday, October 19, 2020

A wrongful death in Texas will not affect just one person. It impacts everyone in the deceased victim’s immediate family – including a spouse, child, grandchild parent and sibling. A common question during wrongful death lawsuits is how proceeds won will be divided among recipients. The answer to this will depend on many factors, including state laws, the deceased person’s last will and testament, and the wishes of the family.

What Proceeds Are Available During a Texas Wrongful Death Suit?

First, learn who may file a wrongful death claim in Texas, as well as what types of damages claimants can request. The parties who bear the right to file wrongful death claims are the deceased person’s surviving spouse, children and parents. If you are in this group, you may file individually or your family may file together. The damages available in a wrongful death claim in Texas include funeral and burial costs, lost earnings and benefits, lost inheritance, lost love and companionship, lost care and services, and emotional pain and suffering. Who receives the compensatory award in a wrongful death claim depends on the case.

Who Receives the Compensation in a Wrongful Death Claim in Texas?

Each state has different distribution laws for wrongful death claims. Texas Civil Practice and Remedies Code 71 determines who will receive a portion of the award won during a wrongful death suit in the state. First, the statute gives adult beneficiaries the chance to work out an arrangement among themselves. All beneficiaries must be adults who can compromise and agree on the terms of the division for this strategy to work. State law in Texas is specific in who it sees as beneficiaries after the death of a loved one. It typically names surviving spouses and children as the main recipients.

Most wrongful death claims settle outside of court. If this is the case, adult beneficiaries can decide how to split the proceeds. Should beneficiaries be unable to agree, a lawyer may intervene to help divide the proceeds fairly. Lawyers usually use precedents set by previous wrongful death juries to determine how much to allot each surviving family member. If a wrongful death claim in Texas goes to trial, however, a jury will have the difficult decision as to who will receive how much.

The court will have full discretion over how to divide the proceeds of a wrongful death trial in Texas. Jurors typically give the most compensation to surviving spouses, followed by minor children and parents of deceased minor children. A jury will award compensation to each eligible surviving family member based on the extent of the losses that person suffered. The amount awarded will match how much the loved one lost due to the decedent’s unexpected death.

When to Hire a Wrongful Death Attorney

Most families in Texas will benefit from hiring wrongful death lawyers from the very beginnings of their claims. Lawyers know what these cases require and how to maximize a family’s payout. If you work with a wrongful death attorney, he or she can help your family decide how to allocate the funds won in an insurance settlement. Your lawyer can facilitate conversations and compromises to help your family decide how to distribute a settlement among loved ones rather than going to trial. A lawyer can also increase the chances of your family working together on a group lawsuit, rather than each family member hiring his or her own attorney and filing a separate claim.

The right wrongful death lawyer can help you and your family through this difficult time. From letting you know whether you have grounds for a claim to helping you distribute the funds won, your lawyer can take care of difficult and complex tasks for you while you focus on grieving. If you have further questions regarding how to divide wrongful death proceeds in Texas, contact an attorney from The Law Firm of Aaron A. Herbert, P.C. today.

Posted by admin at 5:48 pm

How to File a Wrongful Death Claim

Saturday, March 14, 2020

Wrongful death is a tragedy that can befall a family after a fatal motor vehicle accident, workplace accident, fall, criminal assault or many other types of deadly accidents. The civil justice system in Texas provides a way for surviving family members to seek financial compensation for the wrongful deaths of loved ones. Although a lawsuit is not the perfect solution, it could lead to important compensation for you and your family during this difficult time. Find out how to file a wrongful death claim in your county with a Dallas personal injury attorney.

What Is a Wrongful Death Claim?

First, determine if you have the ability to bring a wrongful death claim in Texas. A wrongful death claim is a civil cause of action that seeks to hold someone responsible for the fatal injury of a plaintiff’s family member. You may have grounds for a lawsuit if the recent death of someone close to you fulfills the definition of wrongful death according to Texas Civil Practice and Remedies Code 71.002.

State law defines wrongful death as an injury related to someone’s wrongful act, neglect, default, unskillfulness or carelessness, that causes death. In most cases, if the deceased person would have been able to file a personal injury claim had the injury not been fatal, survivors can file wrongful death claims for compensation. You might be able to file after any preventable accident that takes the life of your loved one in Texas.

Who Can Bring a Wrongful Death Suit in Texas?

Next, find out if you are one of the parties permitted to demand compensation for wrongful death in Texas. Laws in many different states are strict when it comes to who may and may not bring wrongful death suits. In Texas, these parties are the deceased individual’s surviving spouse, child or parents. These parties may file separately or together as a group. If these parties do not exist or do not file within three months of the date of death, a personal representative of the decedent’s estate can file instead. The only exception is if a family member expressly forbids the representative to bring a claim.

What Is the Time Limit to File?

Act fast to hire a lawyer and take the first steps toward obtaining compensation after the death of someone close to you. Waiting too long could hurt your chances of recovering financially. If you miss the deadline to bring a claim, you will be permanently unable to hold the defendant accountable. In Texas, the deadline (statute of limitations) is two years from the date your loved one died, with limited exceptions. Contact an attorney before the end of your window to make sure you retain the right to file.

How Do You File a Claim?

Once you have confirmed you have all the elements of a wrongful death lawsuit and the legal right to bring a claim, file the paperwork to initiate the process. Start by hiring a wrongful death lawyer in Texas to help you with your case. A lawyer can handle paperwork and legal red tape for you while you spend time with your family during this hard time. A lawyer can also make sure your family does not settle for less than the claim is worth with an insurance company.

You or your attorney will draft a demand letter to send to the insurance company of the allegedly at-fault party. The demand letter will explain why you believe the defendant named is responsible for causing your loved one’s death and how much money your family is seeking to resolve the claim. A lawyer can make sure you get the wording correct in your demand letter. Submit the letter to the insurer and wait for a response. Acceptance will lead to settlement negotiations, while denial will give you the ability to take your wrongful death claim to court in Dallas County. An attorney can help you regardless of which path your claim takes.

Posted by admin at 6:23 pm